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About My Tenure

The former head of the U.S. Office of Special Counsel responds to David Holman's "No Catholics Need Apply."

By 4.20.05

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April 19, 2005

David Holman
Editorial Assistant
American Spectator Magazine

Dear Mr. Holman:

Your recent article, "No Catholics Need Apply," makes several inaccurate representations about my tenure as head of the U.S. Office of Special Counsel. Yesterday, you took another swipe at me in your response to a letter from Jeff Ruch, the Director of Public Employees for Environmental Responsibility. You questioned Mr. Ruch's motives for not "campaigning" against me when I allegedly "allowed hundreds of cases to accumulate" during my tenure.

During my tenure, as in that of Mr. Bloch (and all of our predecessors), OSC has been challenged to find ways to process often complex whistleblower disclosure and retaliation cases more quickly, without sacrificing quality or leaving complainants with the sense that their allegations have not been given fair consideration. As a result, virtually every Special Counsel, now including Mr. Bloch, has been accused from time to time of giving too much priority to one goal, at the expense of the others. It is a difficult balance to achieve, and I am sympathetic to Mr. Bloch in that respect. On the other hand, I am not sympathetic to the use of baseless attacks on me or others to deflect legitimate questions about the priorities Mr. Bloch has chosen amongst these competing goals, or about his hiring practices and various policy decisions.

The accusation in your original article that cases "gathered dust" during my tenure while "legitimate problems went unchecked" is inaccurate and unfair. During my tenure, the backlog of over-age whistleblower retaliation cases was reduced significantly, as OSC's annual reports demonstrate. Mr. Bloch claims to have reduced that backlog further, but that claim remains unsubstantiated because he has not released any data to show how many overage retaliation cases are now pending in OSC's investigative units. The statistics Mr. Bloch has released, and to which your article and others have referred, concern a reduction in the number of cases in OSC's intake unit. Obviously, to the extent that cases are being shifted from one unit to another, or piling up in the investigative unit, the backlog "reduction" in the retaliation cases that is being touted may be exaggerated. Whether it is being exaggerated and by how much can only be known when Mr. Bloch releases full comparative statistics about the case load in all of OSC's units, including its investigative divisions. If he has responsibly reduced the over-age backlog of retaliation cases at the agency, without sacrificing the other interests I identified, I congratulate him.

There is no question that during my term we had to struggle with an increasing and frustrating backlog of whistleblower disclosures, caused largely by the fact that the intake of new matters soared in the last few years of my tenure. We secured a doubling of the positions for the Unit that handles those cases in my last budget request, to address the backlog of disclosures without sacrificing the attention and contact with whistleblowers that I thought was important. Incidentally, I have no idea why OSC told you that some "500 backlogged cases were low priority and were already slated for closure by Bloch's predecessor." I did not "slate" 500 disclosures for closure because they were low priority or for any other such reason. Further, I understand that all of the additional positions we secured to help the Disclosure Unit address its backlog remain vacant, while Mr. Bloch's political staff is at least twice the size of mine.

During my tenure, among other accomplishments, we created a successful outreach program, obtained relief for numerous whistleblowers and other victims of unlawful personnel actions, and oversaw the investigation of many important whistleblower disclosures (including at least some if not all of those for which you credit Mr. Bloch in your articleâ€"i.e. those involving nuclear security, air traffic control, and uncertified work on naval ships). These accomplishments are documented in OSC's annual reports for 1998 though 2003, as well as press releases issued during those years which, at least for the time being, remain on OSC's website.

I also think we did a good deal to enhance the credibility of the agency during my tenure, as most knowledgeable observers, even OSC's most persistent critics, would concede. As Mr. Bloch is now learning, credibility and trust are at least as important to OSC's ability to accomplish its mission as "backlog" reduction. So is the "bureaucratic diplomacy" that he derides in your article. Even if their cases are ultimately closed, people who come to OSC seeking its assistance want their phone calls returned and deserve an adequate explanation if the agency decides not to pursue their cases.

In addition, in your original article you claim that I made "propagandistic use" of OSC's website when I added a few sentences advising federal employees that it is a prohibited personnel practice to discriminate on the basis of sexual orientation. You refer to the fact that I am openly gay and claim that "President Clinton . . . improperly extended OSC's jurisdiction over sexual orientation claims" by Executive Order, and that the office was used as a "battering ram for liberal causes under Bill Clinton."

The gratuitous reference to my sexual orientation is ironic given the theme of your article. I don't appreciate the snide inference that I had some agenda, other than enforcing the law because I happen to be gay, any more than Mr. Bloch appreciates similar irrelevant references to his religious convictions.

In fact, the charges that I used the website for "propaganda" purposes and used OSC to advance "liberal causes" are complete and utter nonsense. When I added the reference to sexual orientation discrimination as part of a comprehensive revamping of OSC's website in 1999, I was not implementing President Clinton's executive order. I was informing the federal workforce of the anti-discrimination provisions of 5 U.S.C. §2302(b)(10) which has been interpreted to make sexual orientation discrimination illegal under every President since Ronald Reagan, including the current President Bush. Indeed, the Justice Department so interpreted the law as early as 1983, in an opinion personally signed by then-Assistant Attorney General, Ted Olson (himself hardly a "battering ram for liberal causes"). This interpretation has been explicitly adopted in far greater detail on the website of the Office of Personnel Management throughout the Bush Administration including under the tenure of its recently departed Director, Kay Coles James, who was formerly involved with the work of the socially conservative Family Research Council. To her credit, Ms. James explicitly assured the Senate Committee on Governmental Affairs during her confirmation hearing that she was aware of and would follow this well-established interpretation of the law.

Moreover, your claim that I used OSC to advance "liberal causes" (whatever that means), and at the direction of President Clinton, no less, is ludicrous. President Clinton never directed me to do anything; in fact the last two and one half years of my term were served under President Bush. Further, I incurred the ire of a major AFL-CIO affiliated labor union in the weeks before the hotly contested 2000 Presidential election when I issued an opinion that, under the Hatch Act, the union could not display posters promoting the election of Al Gore, and disparaging then-Governor Bush on its bulletin boards at the federal worksite. The union, in fact, sued me.

In that regard, your claim that I hired "labor union friends" to work in the Office of Special Counsel is another baseless smear. You neglect to mention that the few former union staff members that OSC hired into career positions during my tenure were all hired after an open competition, and were selected for their positions by the career supervisors to whom they would report, not by me. Further, the former union staff members who were hired by the career supervisors were obviously qualified for the jobs because of their significant experience in the area of federal sector employment law. I understand that Mr. Bloch has stopped holding competitions for attorney positions, and also does not include career supervisors in hiring decisions at all. Is it any wonder that this approach (which OSC should be the last one to follow) causes questions to be raised about favoritism and the like?

Let me emphasize that, in my opinion, the issue of which law schools Mr. Bloch's new hires graduated from, which was discussed in your article, is irrelevant. If Mr. Bloch held open competitions, gave his career managers a say in who would be working for them, and hired employees with relevant experience, no one would be able to legitimately question his motives, regardless of the law schools the new employees attended or their philosophical bent. As Mr. Bloch should know, open competition is key to the merit- based civil service that OSC is charged with protecting. While an open competition cannot insulate hiring decisions from criticism, it goes a long way to address the appearance of political favoritism.

I know that my response to your piece is rather lengthy but the charges you leveled against me in your article, and the recent spate of media stories about backlog reduction and related matters OSC, do not admit of sound-bite responses. For obvious reasons, I am concerned that you will selectively edit my remarks or take them out of context. Therefore, I ask that if you choose to publish my response, you include the full text. I also ask that you resist any future temptation you or your magazine might have to smear me, or the work that the OSC staff did under my leadership, in order to defend or deflect negative attention from Mr. Bloch.

Elaine Kaplan
Washington, D.C.

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