Newly Installed Special Counsel Wants to Adjudicate Cases More Swiftly

A longtime attorney for whistleblowers has described the investigative process at the Office of Special Counsel as “operating at a molasses pace.”

Henry Kerner, President Trump’s appointee to serve as special counsel, now is in a position to change that. The veteran prosecutor and congressional investigator, who was sworn in on Oct. 30, hopes to “move cases expeditiously and treat whistleblowers with respect by giving them answers in a reasonable time,” he said in a Dec. 5 interview with Government Executive in his office.

The independent agency that enforces the Hatch Act, which prohibits federal employees from engaging in certain political activities, and examines reports of prohibited personnel practices will “return to the old-style customer service of the 1980s, in a ‘treat the customer as king’ kind of way,” Kerner said. His team has already set up a working group on effectiveness and efficiency.

Speeding up responses may be easier said than done. Some of the agency’s 135 employees in the past have complained that efficiency efforts resulted in giving some complainants short shrift. Indeed, one who spoke on condition of anonymity this month said that while the jury is out on staff reaction to Kerner, there is fear that OSC may continue to “place more value on stats than the complainants or OSC’s true mission,” this staffer said.

Kerner said, “We don’t want to sacrifice substance, and the quality of work has to remain. But we can do superior work at a faster rate.”

High-Profile Cases

OSC is currently processing high-profile cases that involve White House Counselor Kellyanne Conway and Interior Secretary Ryan Zinke. It earlier found that the White House aide in charge of social media outreach violated the Hatch Act but determined that accusations that Housing and Urban Development Secretary Ben Carson violated the Hatch Act were unfounded.

Some of the obstacles to quick turnarounds are out of OSC’s control. For example, the Merit Systems Protection Board—which plays the role of judge to OSC’s role as prosecutor—continues to lack a quorum, which prevents it from releasing decisions or publishing reports of merit system studies. (The number of cases backlogged at the board is 706, an MSPB spokesman said on Friday.)

“It’s bad, I wish they had a quorum,” Kerner said. Complaints can still be filed and taken to an administrative judge, and “it doesn’t “affect our day-to-day work,” he added. But none are resolved, and “sanctioning a supervisor is harder with no quorum.”

Kerner’s predecessor, Carolyn Lerner (now chief of mediation for federal courts in the District of Columbia Circuit), negotiated numerous corrective actions, “which are good,” he said. Corrective actions can include such steps as the restoration of an employee’s job, with back pay. But it takes more effort for OSC to obtain disciplinary action, which penalizes a supervisor who committed a prohibited personnel practice.

“I’m a former prosecutor, and I have more of that trial-lawyer bent. So I think getting some disciplinary action is important both for justice and as a deterrent to change the culture,” Kerner said. “Whistleblowing is so important to rooting out waste, fraud and abuse.”

Lerner “was very helpful” in sharing goals and offering advice on the confirmation process, he said, as was acting special counsel Adam Miles (now a counsel with the Justice Department’s inspector general). Kerner said Lerner did “a terrific job professionalizing the OSC” and attracting “folks who’re devoted to the mission.”

As part of his orientation, Kerner also met with whistleblower advocacy groups, such as the Government Accountability Project.

Though Kerner had worked a bit with OSC while on congressional staff, “I didn’t want to come in and pretend I know all the answers,” he said. He held several listening sessions with staff and said he tries to be “approachable.”

“Folks here have a lot of experience,” Kerner said. “But I’m not here to do an autopsy, looking backward.” His forward vision is for greater efficiency, “and so, far so good.”

Kerner also benefited from the arrival four months before him of his principal deputy special counsel, Capitol Hill veteran staffer Tristan Leavitt.

The deputy noted that the agency this year acquired several new tools to help investigators. One is the authority, enacted in June, that allows OSC to request extension of a stay on any granted personnel action if the Merit Systems Protection Board lacks a quorum, grantable by any remaining member of the board. “It keeps the whistleblowers in place,” Kerner said.

Also helpful are new governmentwide whistleblower protections under the 2017 Dr. Chris Kirkpatrick Whistleblower Protection Act, which became law this fall and was named for a Veterans Affairs Department hospital whistleblower who was fired and then committed suicide.

Finally, OSC’s five-year reauthorization was attached to this year’s National Defense Authorization Act. It will help the agency investigate prohibited personnel practices and retaliation, clarify that agencies may not assert common law privileges to withhold information from the OSC and require managers at all agencies to respond to disclosures of waste, fraud and abuse. The reauthorization will also enhance efficiency and accountability among OSC staff, in part by giving them more authority to terminate unfruitful or redundant investigations.

Such issues of efficiency at OSC are being examined by the Government Accountability Office, Kerner acknowledged. Staff satisfaction has risen in recent Federal Employee Viewpoint Surveys. In 2016 (the latest year available), 82 percent of employees said they liked the kind of work they do, though only 49 percent agreed their workload was reasonable. Kerner also has continued a working group on employee engagement first begun by Lerner.

Kerner said he has heard no signs of disgruntlement, “but I may be the last to know,” he acknowledged.

Asked how to handle would-be whistleblowers who lose cases but seem to never give up, Kerner said, “I believe we have to give people a really fair shake—just because you’ve submitted [a complaint] once doesn’t mean [it] can’t use fresh eyes. But I believe in finality. At some point, it’s been answered. Make your pitch, but at some point, we can’t help you,” which leaves such alternatives as inspectors general and Congress.

“We’re looking forward to having a robust relationship with the press,” Kerner said. He wants to make sure people in agencies know about the OSC, even if it results in more work for the office.

This story was updated to clarify Kerner's role in continuing an employee working group established by his predecessor.