Whistleblower protection agency stuck in neutral

In his first year-plus in office, President Obama has spoken frequently about improving conditions for federal employees, strengthening the rights of whistleblowers and making government "cool" again. But some suggest the administration might be missing out on a vital avenue to implement federal policy reforms.

It has now been almost 18 months since Scott Bloch was forced out as the head of the Office of Special Counsel, an independent oversight agency charged with protecting federal employees from prohibited personnel practices, including retaliation for whistleblowing.

"It is imperative for the administration to put someone in place" at OSC, said Timothy Hannapel, who served as deputy special counsel during the Clinton administration and is now national counsel for the National Treasury Employees Union. "Accountability and transparency is what OSC is all about. They could be an invaluable ally for this administration."

The White House has vetted at least one candidate for the OSC post, according to a source familiar with the search process, but has yet to fill the slot.

The opening has not gone unnoticed by federal labor unions. "While NTEU is disappointed there is still a vacancy at OSC, we are confident the administration is working as quickly as possible to fill remaining vacancies," President Colleen M. Kelley told Government Executive. "Permanent leadership will strengthen the ability of the agency to carry out its mission and continue protecting the rights of federal employees."

The White House did not respond to repeated requests for comment. OSC also declined to comment for this story.

Even though OSC is relatively small -- the office employees between 100 and 110 workers -- it has significant powers. For instance it is one of a few agencies that can communicate directly with Congress about any matter, including its appropriations, without securing the White House's approval.

Observers agree current acting Special Counsel William E. Reukauf has managed operations soundly and has kept the agency running smoothly. In the past several months, OSC has conducted whistleblower investigations involving airline safety and conditions at a federal prison as well as violations of the Hatch Act, which restricts federal employees from engaging in prohibited political activity while on duty.

But, despite Reukauf's ample experience -- he has been with OSC since 1983 and has served three stints as acting special counsel -- observers note interim chiefs have little flexibility to implement major policy changes or program initiatives.

"They really need to bring someone in there that can take a fresh look at the place and do some real analysis of the organization," said James P. Mitchell, a former OSC spokesman and acting chief of staff under Bloch.

For example, Mitchell said OSC has not been aggressive in prosecuting cases before the Merit Systems Protection Board and noted that could change under the direction of a political appointee who has White House and congressional backing.

Danielle Brian, executive director of the Project on Government Oversight, a federal watchdog group, said the absence of a special counsel has been particularly damaging for advocates fighting for comprehensive whistleblower protection legislation. "We need a win for whistleblowers," Brian said, "and we have not had one."

Kaplan and Hannapel authored a paper at the start of the Obama presidency for the American Constitution Society for Law and Policy, mapping out a new direction for OSC focused on fresh leadership, increased staffing and greater agency independence.

The report, however, stated OSC "is likely to be overlooked as it has been in the past. … It would be a mistake and a missed opportunity if that occurred."

Reukauf has indicated he did not view the special counsel role as permanent. In an April 2009 interview with Government Executive, he said his previous turns as acting special counsel each lasted about six months and agency employees were anxious for a permanent boss.

"We're doing well, morale is high, receipts are up, productivity is high," Reukauf said at the time. "But we're looking forward anxiously for a new political leader."

There is some precedent for relying on an interim chief at OSC for a prolonged period of time. During the Clinton administration, the special counsel slot was vacant from October 1997 until Elaine Kaplan -- now the Office of Personnel Management's general counsel -- took over in May 1998. President George W. Bush, however, nominated Bloch the same month as Kaplan finished her five-year term in 2003.

Federal statute requires that the special counsel "be an attorney who, by demonstrated ability, background, training or experience, is especially qualified to carry out the functions of the position." While the backgrounds of former special counsels have varied, stakeholders have a lengthy wish list when it comes to selecting the next OSC chief.

Hannapel said the administration should focus on impartiality. "They can't be perceived as having a particular partisan bent," he said. Brian added the next special counsel "must not have a bias towards protecting the agency."

Others said the White House should keep an eye on the past when selecting the next special counsel.

"They should look for a competent attorney who knows how to be aggressive in doing the right thing," said Mitchell, who now runs StrategiConneX International, a public relations firm. "They need to look for someone that is not going to do what happened last time."

CORRECTION: The original version of this story had the wrong dates for a vacancy at the top of OSC in the late 1990s. The spot was open for less time than reported.

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