April 28, 2005
Dave Holman
Editorial Assistant
American Spectator Magazine
Dear Mr. Holman:
Like Ms. Elaine Kaplan, my response to her 4/20/05 letter
(“About My
Tenure,” Reader Mail) will be lengthy. As Samuel Johnson said
of Paradise Lost, “None did wish it longer.” It is because
of the many important issues Ms. Kaplan’s letter raises, and the
need for truth in the record, that I ask for equal time and
printing of my letter in its entirety.
I am pleased to read that Elaine Kaplan is sympathetic to the
unfair allegations of outside groups about how Special Counsels
handle cases. The numbers are important, and I agree with her that
one has to look not just to numbers but also to the age of cases.
We are proud that OSC has been able to deal with the crippling
backlog, not shift cases around, and provide greater justice to
more persons. Our reduction of over-aged cases in our intake unit
was reduced from 500 cases upon my arrival to just 119 cases last
year, all of which were under 90 days old at the end of our backlog
resolution effort.
During the same period of backlog resolution, we more than
doubled the rate of referral to our investigation and prosecution
unit of those screened cases, so that we had more new claims that
we accepted as validated in whole or in part than had been
validated previously. We found more meritorious cases than my
predecessor and those cases are being pursued for further
investigation and possible prosecution as new, not overage cases.
There were overage cases, some 2 to 4 years in our agency that had
been lingering in the investigation and prosecution division, which
I inherited. We are now requiring that our attorneys either file
the over-age cases with MSPB or settle them, or in the case of
matters they had planned to close, to send a closure letter in a
timely way. Even those whose case lacks sufficient proof deserve to
hear about their case in a reasonable period.
That was the problem when I came aboard: whistleblower
disclosure and reprisal cases were gathering dust for a year, even
up to three years even though attorneys had already determined they
should be closed. We did not shift cases from one backlog to
another, and we have insisted that older claims be dealt with. I
have oft repeated William Gladstone’s famous aphorism: “Justice
delayed is justice denied.” This is why we are rewriting standard
operating procedures to require prompt action on all cases referred
to the investigation and prosecution division: finish the
investigation, file in court, settle it, or close it. This is a
center piece of our reform efforts here, to provide more
expeditious and just handling of claims.
We are sensitive that there are human beings at the other end of
these claims. I have said repeatedly, we do not exist to close
cases but to find the good cases that are there. I have also said
how unjust it is if you file a complaint to have it just languish
and gather dust for years. We had hundreds of whistleblower
disclosures that were literally sitting in piles, unattended, some
for more than three years, which were authorized under Ms. Kaplan’s
priority system for closure as low priority probable closures, a
system she created. When we contacted complainants and
whistleblowers, some had moved out of the government jobs, some
forgot what they had complained about and wanted nothing more to do
with the process, some even had died. I have made it a priority to
prevent such things from ever occurring again, which is why we have
created a customer service unit, a cross-training program,
restructured to make each unit able to assist other units to reduce
spot back logs that may arise, and an interpretation of legal
standards that is more common sense and just for whistleblowers.
The results speak for themselves — a doubling of whistleblower
matters substantiated under me and sent to agency heads for full
investigation. This translates into better government, more
accountability, and more protection for actual whistleblowers who
have risked their jobs to protect all of us.
I have to differ in a policy matter with Ms. Kaplan, and she has
written me in the past to tell me that she does not dispute my
right to take a different policy position from her on the issue of
whether “sexual orientation” is a specific prohibited personnel
practice under our enforcement statutes. I must disagree, however,
with Ms. Kaplan’s characterization that all she did was inform the
federal workforce of anti-discrimination provisions that had been
interpreted that way for 30 years. This is really not helpful to
the discourse as it misleads the reader into believing that it was
not Ms. Kaplan who changed the policy of OSC. In fact, she altered
the policy of OSC and changed the legal interpretation. OSC is the
only office in the federal government charged with investigating
and prosecuting cases under 5 USC 2302(b)(10) for discrimination
“on the basis of conduct which does not adversely affect job
performance of the employee or others.” Prior to Ms. Kaplan, OSC
had never interpreted that statute in its 25 years of enforcement
in the way Ms. Kaplan ordered it to enforce it after her arrival.
Career staff in the agency found the change in interpretation quite
troubling and brought it to my attention upon my arrival as being
“controversial” and something I should take a look at. I have been
conducting a responsible, common sense, and full legal review of
these matters as is my obligation and duty under the oath I took to
uphold the laws as Congress writes them. I swore to uphold the
Constitution, including my duty not to act as the legislative
branch but only in the capacity of an officer of the executive
branch, enforcing laws written by Congress and interpreted by the
courts that bind our office.
What Ms. Kaplan refers to when she speaks of 30 years of
interpretation are non-binding opinions of persons outside OSC, and
this is a critical distinction that she has repeatedly overlooked
when she spoke frequently in and to the press last year. The
opinions and memos of the agencies she alludes to do not support
Ms. Kaplan’s interpretation, but the point is that even if they did
support her interpretation, they were not binding on OSC. Ms.
Kaplan’s order to enforce OSC’s statute in this new way to grant
special treatment just for sexual orientation was not considered
consistent by OSC staff with prior legal interpretation of the
courts or OSC’s enforcement history.
I appreciate that Ms. Kaplan was acting according to her own
lights, but we differ in our views on the correct role of the
Special Counsel in interpreting the statute, and it is not helpful
to pretend that she did not significantly alter interpretation of
this important statute. We have continued to enforce this statute
for all who claim sexual orientation discrimination, but we follow
the law as Congress wrote it and apply that interpretation to all
equally without special treatment for a particular group or type of
claim. As it turns out, there are less than 20 claims that might be
termed sexual orientation discrimination claims in any given year,
compared to the thousands of other claims that are made under our
statutes. This matter has been blown way out of proportion by
outside advocacy groups.
My quote about bureaucratic diplomacy was directed not at how we
deal with customers but was directed at internal bureaucratic
customs that stifle an agency’s mission with each memo or matter
having to be handled up and down chains endlessly with no seeming
results or real purpose. That is what we have tried to eliminate
while naturally honoring the opinions of the capable career civil
servants who have been very adept at helping us end some of the
useless accretions that have developed in the bureaucracy over
time.
The whistleblower matters reported in your article were under my
tenure, not under Ms. Kaplan. The FAA matter was a new claim of
near misses at an airport which I have sent to the President, as
well as a whistleblower retaliation case we are handling for the
whistleblower. The aircraft carrier case was not the one she
approved, but rather a second case and another aircraft carrier.
The food safety was a claim approved under my tenure, the TSA
screener who complained of an assault rifle brought into the work
place and who was reprised against is under my tenure, the improper
mounting of the engine on the C5-A Galaxy, all were under my
tenure, not Ms. Kaplan’s. The nuclear facilities danger straddled
both our tenures. While she substantiated the claim to require the
agency to investigate, I addressed the proposed response of the
agency in its investigation and reported to the President and
Congress.
I am pleased that Ms. Kaplan believes the place a lawyer
attended law school or the employee’s philosophy is irrelevant.
What is relevant, she argues, is ability and qualifications. My
hires have been highly qualified and have been praised as top
performers. I do not employ religious tests, and our hires
represent a wide cross section of philosophies, politics, and, I
would guess, faiths. The hiring has been done with the input of
senior and mid-level managers, with some employees hired solely on
the recommendation of career employees and senior managers and no
input from anyone else. The ultimate decision is mine to actually
adopt their recommendation and hire the employee (which was also
true of Ms. Kaplan).
We have used competition to hire certain employees, and we have
a competitive hiring committee to review many resumes that have
been assembled by staff. The statements to the contrary are
unfortunate. Each of the hires was done pursuant to civil service
law, rule and regulation, and was signed off on by the director of
Human Resources. Ms. Kaplan says that her hires of union employees
was done through competition, though again it is true that the ones
who won those competitions happened to come from where she had most
recently worked, the union. One was her political appointee who
competed for a senior executive career position, but the decision
to hire him was hers. It was legal for her to do that, but she was
subject to criticism for favoritism and political cronyism then as
now.
Some people will criticize you if you turn left, right or
middle. Some for not turning at all. That is the nature of the job.
As a former special counsel told me before I entered service, “I
hope you do not need to be liked.” How true that has turned out to
be. One must act according to principle, and not according to the
way the winds are blowing. Still, it is unfortunate now that some
outside interest groups with an axe to grind are trying to make it
look like the office has suffered, when in fact the dedicated civil
servants should be credited with truly having the interests of
federal employees at heart and doing an increasingly good job of
tending to those interests. Truth matters in our work, and it would
be nice if it mattered more often to the advocacy groups, the
mainstream press and some Members of Congress.
Scott J. Bloch
Special Counsel
Office of Special Counsel
Washington, D.C.
