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S.Rept. 102-416 (Committee on Governmental Affairs)(Sept. 22, 1992)

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pp. 3-4 p. 6 p. 9

Id. at pp. 3-4: Despite this evidence, OSC decided in October 1990-after making Mr. Ganz wait a year and a half-not to bring a case on Mr. Ganz's behalf. Although the agency was able to present a colorable explanation for each of the actions taken against Mr. Ganz, the way OSC handled this case was extremely disturbing. First, OSC accepted the agency's explanations for the actions taken against Mr. Ganz. The agency was given a chance to explain away every one of Mr. Ganz's allegations; Mr. Ganz does not appear to have been given a similar opportunity to respond to the agency's explanations.
Second, OSC failed even to tell Mr. Ganz of the evidence it had found to support his allegations. In its "close-out" letter to Mr. Ganz, OSC stated that "the evidence did not disclose any unlawful motive by any Defense Department, Army or LABCOM official towards you because of your protected activities." Not only is this statement untrue, it flatly contradicts the statement in OSC's own internal report that there was evidence of a retaliatory motive against Mr. Ganz. In short, OSC not [only] accepted the agency's explanations for the personnel actions against Ganz-it also told Mr. Ganz that there was no other evidence. Because the retaliation against Mr. Ganz took place prior to the enactment of the Whistleblower Protection Act, no further appeals were available to Mr. Ganz.
In a second case reviewed by the Committee, Robert E. McClellan was placed in an isolated office in a former storage area, detailed and reassigned to a lesser position, and given the lowest performance rating of his career after writing a 1989 letter to a Member of Congress about mismanagement in his agency. Mr. McClellan sought assistance from the Office of Special Counsel, which refused to take his case and failed even to inform him of his right to file an Individual Right of Action with the MSPB.
Mr. McClellan hired a private attorney to bring his case to the Merit Systems Protection Board, and-in February 1992-prevailed on the merits. While OSC found no basis to proceed with the case, the MSPB found that Mr. McClellan had in fact been subject to unlawful retaliation for his whistleblowing activity and ordered that he be reinstated to his former position. OSC has subsequently acknowledged that it made serious errors in the handling of Mr. McClellan's case.
In a third case that was closely followed by Members of the Committee, Paul Camire of Biddleford, Maine, waited for more than two and a half years for OSC to complete its investigation of his case and make a determination whether a prohibited personnel practice occurred. ...
When Committee staff contacted the Office of Special Counsel to investigate the delay in Mr. Camire's case, OSC indicated that it was attempting to negotiate a settlement with the Shipyard on Mr. Camire's behalf. Because he wanted OSC to make a formal determination in his case, Mr. Camire rejected several proposed settlements. In July 1992, OSC, without making a determination whether a prohibited personnel practice had taken place, dropped Mr. Camire's case. Moreover, it appears that OSC failed even to interview 4 key witnesses whom Mr. Camire believed would support his case.
Id. at p. 6: The first amendment, offered by Senator Levin, would--

(1) Clarify that determinations by the Special Counsel under Section 1214(b)(2), like termination letters issued under Section 1214(a)(2), are not admissible in proceedings before the Merit Systems Protection Board or other judicial or administrative proceedings without the consent of the individual concerned; and

(2) Require agency heads to consult with the Office of Special Counsel about appropriate steps to ensure that federal employees are informed of the rights and remedies available to them under the Whistleblower Protection Act.
Id. at p. 9: Paragraph (1) would require OSC to respond to reasonable questions from whistleblowers whose cases have been terminated by the Special Counsel. The statute currently requires OSC to provide a "close-out" letter to whistleblowers whose cases are terminated. Each such letter is statutorily required to include a summary of the relevant facts ascertained by the Special Counsel, including the facts that support, and the facts that do not support, the whistleblower's allegations.

However, many whistleblowers complain that OSC's close-out letters are perfunctory and give little information about OSC's investigation or the facts of the case.