April 28, 2005
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
Office of Special Counsel