The Office of Special Counsel (OSC) is the agency that investigates whistleblower complaints. The OSC has the primary investigative and enforcement responsibility for the Whistleblower Protection Enhancement Act (WPEA). This is how the agency describes its role in investigating complaints of a prohibited personnel practice:
Prohibited personnel practices (PPPs) are employment-related activities that are banned in the federal workforce because they violate the merit system through some form of employment discrimination, retaliation, improper hiring practices, or failure to adhere to laws, rules, or regulations that directly concern the merit system principles.
OSC has the authority to investigate and prosecute violations of the 13 PPPs.
The OSC prosecutes these types of cases with the Merit Systems Protection Board (MSPB). A search of the MSPB case decisions involving these types of cases involving OSC does not reveal a long list of decisions of either precedential or non-precedential cases.
What happens when there is a whistleblower who works for the Office of Special Counsel, and that person alleges whistleblower retaliation specifically against the Special Counsel and the Principal Deputy Special Deputy Counsel?
What if the person who considers himself a whistleblower is the Chief Human Capital Officer for the Office of Special Counsel?
That would make an interesting case.
This interesting case is, apparently, now progressing through the federal appeals process according to a posting from the Federal Employment Law Training Group (FELTG). Dr. James J. Wilson is the Chief Human Capital Officer for OSC. His affidavit has appeared on the FELTG website listing his allegations against senior officials at the OSC.
According to Dr. Wilson’s affidavit, he has worked at several agencies including the Office of Personnel Management (OPM) where he was director of the Presidential Management Fellows Program. He has also served as Deputy Staff Director at the Federal Election Commission and appointed to his current position in 2011, where he is the most senior non-attorney in the agency.
Wilson alleges that Special Counsel Carolyn Lerner and Principal Deputy Special Counsel Mark Cohen violated laws when ordering and approving a number of personnel actions. Some of these personnel actions are alleged to have personally benefited Mr. Cohen.
MSPB Administrative Judge Melissa Mehring has issued a finding of jurisdiction and set an August date for hearing this case. It will be the first case heard in a whistleblowing complaint filed by an employee of the OSC against the same agency that normally investigates and prosecutes these kinds of cases.
Of course, the filing of a complaint does not mean that anything improper or illegal has actually occurred. Nevertheless, the allegations come at a sensitive time for the agency.
Lerner has been Special Counsel since 2011. Her five-year term expired last June and she has continued in the job under a one-year carry-over period. Presumably, Cohen would become the acting Special Counsel upon the expiration of Lerner’s term.
On May 26, President Trump nominated Henry Kerner to be the next Special Counsel. Kerner is the vice president of a watchdog group called Cause of Action that monitors and reports on federal government waste, fraud and abuse. He spent about 20 years as a prosecutor in California and has worked on the staffs of the House Oversight Committee and the Senate Permanent Subcommittee on Investigations, both of which investigate inefficiency in government.