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MSPB Watch files whistleblower disclosure against Office of Special Counsel

The following whistleblower disclosure has been filed, pursuant to 5 U.S.C. 1213(g)(1), with the Office of Special Counsel against the Office of Special Counsel:

As part of the Whistleblower Protection Act of 1989, Congress legislatively overturned the March 13, 1981 Office of Legal Counsel opinion, 5 U.S. Op. Off Legal Counsel 77, 1981 WL 30880 (O.L.C.) that limited OSC’s jurisdiction to receive whistleblower disclosures only to current federal employees or applicants for employment.  It explicitly did this by creating another sub-section of law, 5 U.S.C. section 1213(g)(1), to apply in situations in which the disclosure was not made by an employee, former employee or applicant for employment and/or the information disclosed was not obtained in connection with the performance of the employee’s duties or responsibilities.

Congress gave OSC discretion about referring such disclosures to the involved agency, it need not make a “substantial likelihood” determination to make such a referral.   It underscored the importance of OSC’s greatly increased authority to receive whistleblower disclosures from sources as government contractor employees, members of the armed forces, state employees operating under federal grants, employees of U.S. Postal Service and Postal Rate Commission, and federal employees disclosing information not obtained in the performance of their duties or responsibilities by mandating OSC make a permanent, publicly available record of reports of the agencies received per 5 U.S.C. section 1213(g)(1) – see 5 U.S.C. section 1219(a)(4).

Despite this explicit expression of Congressional intent,*** OSC, for almost 23 years now, has violated the law and the clear Congressional intent by refusing to receive any whistleblower disclosures that it now has the nondiscretionary statutory duty to receive and the  statutory discretion to transmit to the involved agency per 5 U.S.C. section 1213(g)(1).   Not a single such whistleblower disclosure has been received and transmitted by OSC, as a review of its permanent, publicly available records, a review of its annual reports to Congress, and its response to a FOIA request demonstrate.

This whistleblower disclosure about this apparent willful, long-term, and systemic OSC lawbreaking – lawbreaking that has likely contributed to much loss of life and many billions, if not trillions, of tax dollars wasted or loss to fraud – is being made per 5 U.S.C. section 1213(g)(1) by a former federal employee who did NOT learn of it during his normal job duties and responsibilities.   OSC must receive it and inform me whether it will act on it.

OSC’s whistleblower disclosure form, OSC-12, on page ii, explicitly displays OSC’s lawbreaking.  It claims, contrary to the explicit words of 5 U.S.C. section 1213(g)(1), that whistleblower disclosures cannot be received if made by anyone other than an employee, former employee, or applicant for employment about their agency or only if such a person obtained the information disclosed (about another agency) in the performance of their duties and responsibilities.   OSC also states this unlawful information about these incorrect limitations on who can submit whistleblower disclosures and how they must have obtained the information disclosed in its Annual Reports to Congress and in its guidance, available via itswebsite, about whistleblower disclosures.

***Senate Report No. 100-413 (July 6, 1988) to the Whistleblower Protection Act of 1989, page 27, states as follows:

Subsection (g) is a new section. (g)(1) permits the Special Counsel to refer to appropriate agency heads disclosures made by persons other than an employee, former employee or applicant for employment in the agency which the information concerns, or by an employee who obtained the information in connection with his duties. If the OSC refers such information to an agency head, the agency head must report in writing to the OSC within a reasonable time on what action has been or is being taken on the disclosure and when such action will be completed. The OSC shall inform the complainant of the agency head’s report; if the disclosure is made anonymously, then the OSC obviously is not bound to inform the complainant of the agency head’s report.

112012_OSC 1213(g)(1) disclosure

Cross-posted at MSPB Watch

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