Investigative agency earns fewer victories for employees

The Office of Special Counsel last year helped fewer federal employees secure redress, in the form of corrective actions, for improper personnel practices than it has in years past, according to figures provided to Government Executive.

OSC, a small independent agency based in Washington, investigates federal employee complaints of prohibited personnel practices, such as retaliation for reporting alleged fraud or mismanagement. If an employee presents sufficient evidence of a violation, OSC attorneys can seek both corrective action and disciplinary action from the agency where the employee works. If the agency fails to act, OSC can take the case to the Merit Systems Protection Board.

OSC secured 45 favorable actions and prosecuted two prohibited personnel practice cases before the MSPB in fiscal 2005, according to figures provided to supplement its fiscal 2005 Performance and Accountability Report. In fiscal 2004, it obtained 68 favorable actions and filed four cases with MSPB, the PAR report stated.

Agency spokesman Loren Smith acknowledged that corrective actions have declined during Special Counsel Scott Bloch's tenure, which began in January 2004, but said there was no specific explanation for the decline.

"Statistically, it's hard to judge on numbers as low as 100 from year to year," Smith said. "A better yardstick is the overall number of claims that were investigated."

Smith said the agency has consistently addressed about 1,800 cases annually since 2003. The number of prohibited personnel cases that result in redress for the employee varies from year to year, he said.

In addition, disciplinary actions against managers found to have engaged in prohibited practices are not included in the favorable actions total, Smith said. He did not have statistics on disciplinary actions.

Smith said Bloch's goal when he took over was to reduce OSC's backlog of cases, which among other things, included 500 prohibited personnel practice allegations that hadn't made it through an initial screening process. In January 2005, the agency reported that much of the backlog had been reduced.

But critics charge that more favorable actions should have been obtained.

In fiscal 2003, prior to Bloch's arrival, the agency obtained 115 favorable actions in prohibited personnel practice cases. It received 126 in fiscal 2002 and 74 in fiscal 2001, according to OSC's 2004 and 2005 Performance and Accountability reports.

A separate OSC report to Congress stated that the number of federal employees filing prohibited personnel practice complaints was increasing. In fiscal 2004, the agency received 1,964 allegations involving one or more of 12 personnel practices prohibited in the federal government, up from 1,791 in fiscal 2003 and 1,558 in fiscal 2002.

Elaine Kaplan, Bloch's predecessor as special counsel, said the agency has focused too much on clearing the backlog.

"The continuing reduction in favorable actions for victims of prohibited personnel practice complaints illustrates what every special counsel who has ever had the job has learned -- that there is a important price to be paid for an excessive emphasis upon so-called 'backlog reduction,' " Kaplan said in a written statement. "Everyone agrees that justice delayed can be justice denied. But a rush to judgment is no better for individuals who feel their cases have been unfairly closed, no matter how expeditiously."

Smith disagreed, citing the fact that OSC passed a three-week congressional review last year, in which Republican and Democratic House Government Reform Committee staffers examined random cases.

"It's a fair question, how did you get the backlog down?" Smith said. "They picked out cases at random and interrogated our staff attorneys at random … at the end of the three-week period … they said 'There's nothing here.' "

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