By William Wiley, April 19, 2017

All right all you brilliant legal-like minds out there. Work through this law with me. What do you think this means, and why did Congress say it?

5 U.S.C. 1214: (f) During any investigation initiated under this subchapter, no disciplinary action shall be taken against any employee for any alleged prohibited activity under investigation … without the approval of the Special Counsel.

If it’s of any help, the “subchapter” referenced in this language is Title 5 – Government Organization and Employees, Part II – Civil Service Functions and Responsibilities, Chapter 12 – Merit Systems Protection Board, Office of Special Counsel, and Employee Right of Action, Subchapter IIOffice of Special Counsel. So, what we are talking about is that period of time that OSC has decided to come in to your agency and investigate the suspected reprisal against an alleged whistleblower by one or more of your management officials. OSC usually notifies you officially of its investigation when it has heard enough from the employee/complaint to conclude that maybe there is fire beneath the smoke of the claim. It contacts the agency, usually through the office of general counsel, when it is ready to demand documents and needs access to agency employees to depose. That’s when you know, often for the first time, that there is an OSC investigation afoot under this subchapter.

The statute prohibits an agency from disciplining “any employee” for “prohibited activity.” Well, the activity prohibited that OSC investigates is reprisal against a federal employee for whistleblowing. The “activities” that are prohibited are specifically enumerated at 5 USC 2302(a)(2)(A) and include most significant personnel actions such as disciplinary actions or performance ratings. The “prohibited” part refers to taking the action based on an improper motive, namely whistleblower reprisal. As for the “any employee” language, those who can be investigated for whistleblower reprisal are federal employees who have the “authority to take … personnel actions.” 5 USC 2302(b).

Wrap all this up and in lay terms, what the law says is that an agency must get OSC’s approval during an OSC investigation if it intends to discipline a management official for the misconduct of reprising against a whistleblower. This makes sense if you think about it. If an OSC investigation results in a conclusion that I have reprised against a whistleblower, OSC can file charges against me before MSPB and have the Board discipline me. However, during an investigation into whether I reprised against the whistleblower, if the agency were to discipline me for reprisal with – say – a one-day suspension, OSC would be precluded from subsequently disciplining me more seriously because I would have already been disciplined for the misconduct. No sir; no double jeopardy in our system of workplace justice, thank you very much Fifth Amendment (in analogy only, of course).

Did you notice the “…” above? For clarity, when quoting the law, I left out the phrase “or for any related activity.” That’s an awkward seemingly-unnecessary term, but it appears to me to refer again to the “any employee” with the authority to take a personnel action. Once more, we’re talking about needing OSC approval to discipline a management official.

Why all this detail? Because some agency officials have concluded that this language requires that it get approval from OSC prior to disciplining the employee who filed the reprisal complaint (for misconduct, not related to whistleblowing). In fact, even EEOC appears to believe that OSC approval is required prior to an agency disciplining an employee who has filed a whistleblower reprisal complaint. See Latricia P. v. USDA (Natural Resources Conservation Service), EEOC Appeal No. 0120152533 (February 16, 2017).

Where in the world might an agency as experienced as the Department of Agriculture get the idea that it needed OSC approval to discipline an employee who has filed a whistleblower reprisal complaint resulting in an investigation?  Well, I certainly do not have any specific inside information into this case, but in my experience, I have heard that incorrect interpretation of the law put forward by – are you ready? – OSC itself. Hey, if I’m OSC, my job is to protect whistleblowers from bad treatment. If you fire or otherwise discipline the whistleblower while I’m conducting an investigation, you’re going to mess up my investigation and interfere with my defense of that employee. If I can get you to believe that you need my approval to discipline a complainant, why would I not want you to believe that?

A number of you readers have had dealings with OSC in situations in which you have an intent during an investigation to discipline the complaint for misconduct or perhaps fire the complaint for poor performance. Even if you have not heard an OSC representative tell you affirmatively that you need OSC’s permission to go forward, have you ever heard an OSC representative say to you, “Hey, if you need to fire this complaint for reasons unrelated to whistleblowing, do what you need to do to hold him accountable. Our approval is required only if you’re going to discipline one of your managers for reprisal.”?

I am not worried about my email inbox becoming crammed with responses to this question.

OSC does not have the authority to require you to get its approval prior to disciplining a complainant during an investigation.  If it believes your discipline amounts to reprisal of some kind, it can file a motion for a stay of the discipline with MSPB. The Board can order you to hold off on disciplining the employee, but OSC cannot.

Know the law. Do not rely on OSC’s interpretation of it. They are many good people at OSC, some of which I have considered my friends for 35 years. Yet their job is different from your job. You need to run the government and hold misbehaving employees accountable; the Special Counsel does not. Wiley@FELTG.com

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