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H.Ser. 103-6, Oversight Hearing on Whistleblower Protection and the Office of Special Counsel (Subcommittee on the Civil Service)(March 31, 1993)

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pp. 89 p. 170 p. 354-56

Id. at p. 89 (testimony of Marie Ramirez):

Contrary to the provisions of the Whistleblower Protection Act, I was never provided a meaningful summary of the facts; their responses were inadequate and ignored the vast majority of information I had provided them.

In an effort to make sense of the OSC's refusals to help me, I made multiple requests under FOIA and the Privacy Act. The OSC has repeatedly refused me a right to review the case files upon which they based their rulings, hiding behind provisions of the FOIA and the Privacy Act that I believe are non-applicable. Nor have they complied, on at least one occasion, with Freedom of Information Act regulations requiring a response to information requests within ten days.

From the very limited information I was able to obtain from the OSC, in the form of a redacted memorandum, it was clear that agency officials, especially agency attorney L.B. Oliver, had provided quite a number of untruthful and misleading statements regarding me, my character, and the circumstances surrounding the first illegal removal action. However, the OSC never allowed me to respond to the accuracy of any information provided by the agency or provide evidence that would have contradicted the agency's version; the OSC accepted what the agency said at face value. Moreover, the OSC's failure to provide me this information is interfering with an official investigation concerning charges before the California State Bar that Ms. [p. 90] Oliver provided false information to the OSC.

And in regards to the extremely limited information that the OSC did provide me, they made it clear that I was not really entitled to it; apparently they were just doing me a favor; "The above-mentioned redacted closure memorandum was released to you so that you might have a better understanding of the information gathered during the investigation. This release was entirely discretionary, as OSC was not obliged to release any of this material."

Id. at p.170 (testimony of R. Seldon)

On May 16, 1991, the Justice Department filed OSC's letter closing out its investigation with the MSPB and advised: "We have been informed by the Office of Special Counsel that they have taken these steps because * * * they believe Mr. Hamel's appeal is moot." These disclosures by OSC and DOJ, which I believe greatly prejudiced Mr. Hamel's appeal, were a gross and intentional deviation from the WPA's confidentiality provisions which precluded the OSC from revealing the results of its investigation and prohibit every party from introducing the results of OSC investigations into the record of other proceedings. And shortly thereafter, the MSPB dismissed the appeal finding that it had become moot.

Id. at pp. 354-56(testimony of T. Devine and J. Ruch)

For example, the Special Counsel explained that a U.S. Department of Agriculture ("USDA") Federal Grain Inspection Service ("FGIS") manager did not have knowledge of whistleblowing disclosures by Dr. Clifford Watson, a scientist whose congressional testimony revealed that the government was shortchanging wheat farmers of millions of dollars by not properly maintaining measuring [p. 355] equipment. In fact, the manager was sitting next to Dr. Watson when he blew the whistle to Congress, and that same manager responded to numerous congressional inquiries about Dr. Watson's charges. OSC lacks a record as reliable factfinders....

Closeout letters. Under 5 USC 1214(a)(2) when it closes a case the OSC must explain its reasons, including a summary of the material relevant facts that support and rebut the prohibited personnel practice charge. In this manner the OSC investigation at least will serve as a constructive reality check, allowing those still considering litigation to assess the strengths and weaknesses of their cases.
In the 1992 survey, only one out of the 38 respondents with reprisal cases agreed the Special Counsel obeyed this portion of the statute in good faith. The corresponding rate for 1993 is one case out of 21 for obeying this legal requirement.
GAP's review of OSC closeout letters may be helpful. The closeouts routinely do not mention the issues and key evidence identified by GAP's intake director during initial telephone interviews with employees seeking help. Dr. Watson's experience is instructive. The OSC closeout letter skipped twelve of his thirteen whistleblowing disclosures and six of the eight personnel actions for which he alleged whistleblower reprisal. As long as Special Counsel rulings ignore the issues and evidence in reprisal complaints, whistleblowers will not have any confidence in the Office.