The United States Office of Special Counsel (OSC) is an independent agency of the U.S. federal government. It is a permanent, investigative, and prosecutorial agency whose basic legislative authority comes from four federal statutes: the Civil Service Reform Act, the Whistleblower Protection Act, the Hatch Act, and the Uniformed Services Employment and Reemployment Rights Act (USERRA). OSC's primary mission is to safeguard the merit system in federal employment by protecting employees and applicants from prohibited personnel practices (PPPs), especially reprisal for "whistleblowing". The agency also operates a secure channel for federal whistleblower disclosures of violations of law, rule, or regulation; gross mismanagement; gross waste of funds; abuse of authority; and substantial and specific danger to public health and safety. In addition, OSC issues advice on the Hatch Act and enforces its restrictions on partisan political activity by government employees. Finally, OSC protects the civilian employment and reemployment rights of military service members under USERRA. OSC has around 140 staff, and the Special Counsel is an ex officio member of Council of Inspectors General on Integrity and Efficiency (CIGIE), an association of inspectors general charged with the regulation of good governance within the federal government.
Jurisdiction Pursuant to 5 U.S.C. § 1214, the U.S. Office of Special Counsel has jurisdiction over most prohibited personnel practice (PPP) complaints brought by executive branch employees, former employees, and applicants for employment (hereinafter simply "employee" or "employees"). When a PPP complaint is submitted, the agency examines the allegations. If OSC finds sufficient evidence of a violation, it may seek corrective action, disciplinary action, or both.
By statute, federal employees may not be retaliated against when they disclose information that they reasonably believe evidences the following types of wrongdoing: a violation of law, rule, or regulation; gross mismanagement; a gross waste of funds; an abuse of authority; or a substantial and specific danger to public health or safety.Office of the Inspector General, U.S. Department of Defense, Statement of Mr. Thomas F. Gimble Acting Inspector General Department of Defense before the Subcommittee on National Security, Emerging Threats, and International Relations House Committee on Government Reform on National Security Whistleblower Protection (Feb. 14, 2006) at 5. The Special Counsel is authorized to receive such disclosures of wrongdoing, but it lacks jurisdiction over PPPs committed against employees of the Central Intelligence Agency, Defense Intelligence Agency, National Security Agency, and certain other intelligence agencies found at 5 U.S.C. §2302(a)(2)(C)(ii), as well as the Government Accountability Office and any executive branch agencies principally concerned with counterintelligence or foreign intelligence, as designated by the president.
Prohibited personnel practices OSC's primary mission is to protect federal employees and others from "prohibited personnel practices". Those practices, defined by law at § 2302(b) of Title 5 of the United States Code (U.S.C.), generally stated, provide that a federal employee may not take, direct others to take, recommend or approve any personnel action that: discriminate against an employee or applicant based on race, color, religion, sex, national origin, age, handicapping condition, marital status, or political affiliation; solicit or consider employment recommendations based on factors other than personal knowledge or records of job-related abilities or characteristics; coerce the political activity of any person; deceive or willfully obstruct anyone from competing for employment; influence anyone to withdraw from competition for any position so as to improve or injure the employment prospects of any other person; give an unauthorized preference or advantage to anyone so as to improve or injure the employment prospects of any particular employee or applicant; engage in nepotism (i.e., hire, promote, or advocate the hiring or promotion of relatives); engage in reprisal for whistleblowing—i.e., take, fail to take, or threaten to take or fail to take a personnel action with respect to any employee or applicant because of any disclosure of information by the employee or applicant that he or she reasonably believes evidences a violation of a law, rule or regulation; gross mismanagement; gross waste of funds; an abuse of authority; or a substantial and specific danger to public health or safety (if such disclosure is not barred by law and such information is not specifically required by Executive Order to be kept secret in the interest of national defense or the conduct of foreign affairs—if so restricted by law or Executive Order, the disclosure is only protected if made to the Special Counsel, the Inspector General, or comparable agency official); take, fail to take, or threaten to take or fail to take a personnel action against an employee for exercising an appeal, complaint, or grievance right; testifying for or assisting another in exercising such a right; cooperating with or disclosing information to the Special Counsel or to an Inspector General; or refusing to obey an order that would require the individual to violate a law, rule, or regulation; discriminate based on personal conduct which is not adverse to the on-the-job performance of an employee, applicant, or others; take or fail to take, recommend, or approve a personnel action if taking or failing to take such an action would violate a veterans' preference requirement; take or fail to take a personnel action, if taking or failing to take action would violate any law, rule or regulation implementing or directly concerning merit system principles at 5 U.S.C. § 2301; or implement or enforce a nondisclosure agreement or policy lacking notification of whistleblower rights.
History OSC was established on January 1, 1979. Until 1989, it operated as the independent investigative and prosecutorial arm of the Merit Systems Protection Board (MSPB), or "the Board". By law, OSC received and investigated complaints from employees alleging prohibited personnel practices by federal agencies; enforced the Hatch Act, including by providing advice on restrictions imposed by the act on political activity by covered federal, state, and local government employees; and received disclosures from federal employees about wrongdoing in government agencies. OSC enforced restrictions against prohibited personnel practices and unlawful political activity by filing, where appropriate, petitions for corrective and/or disciplinary action with the Board.
In 1989, Congress enacted the Whistleblower Protection Act (WPA). The statute made OSC an independent agency within the executive branch of the federal government, with continued responsibility for the functions described above. It also strengthened protections against reprisal for employees who disclose wrongdoing in the government and enhanced OSC's ability to enforce those protections.
In 1993, Congress enacted legislation that significantly amended Hatch Act provisions applicable to federal and District of Columbia government employees and enforced by OSC. (Provisions of the Act regarding certain state and local government employees were unaffected by the 1993 amendments.)
In 1994, USERRA became law. It defined employment-related rights of persons in connection with military service, prohibited discrimination against them because of that service, and gave OSC new authority to pursue remedies for violations by federal agencies.
Also in 1994, OSC's reauthorization act expanded protections for federal employees, and defined new responsibilities for OSC and other federal agencies. It provided, for example, that within 240 days of receiving a PPP complaint, OSC should determine whether there are reasonable grounds to believe that such a violation occurred, exists, or will be taken. The act extended the protections of certain legal provisions enforced by OSC to approximately 60,000 employees of what is now the Department of Veterans Affairs (DVA) and to employees of certain government corporations. It also broadened the scope of personnel actions covered under those provisions. Finally, the act made federal agencies responsible for informing their employees of available rights and remedies under the WPA, and directed agencies to consult with OSC in that process.
In November 2001, Congress enacted the Aviation and Transportation Security Act, creating the Transportation Security Administration (TSA). Under the Act, non-security screener employees of TSA can file allegations of reprisal for whistleblowing with OSC and the MSPB. But about 45,000 security screeners in TSA could not pursue such complaints at OSC or the Board. OSC efforts led to the signing of a memorandum of understanding (MOU) with TSA in May 2002, under which OSC reviews security screeners' whistleblower retaliation complaints, and recommends corrective or disciplinary action to TSA when warranted.
The Whistleblower Protection Enhancement Act of 2012 (WPEA) became law on November 27, 2012. The WPEA strengthens protections for federal whistleblowers by removing loopholes that deterred federal employees from disclosing waste, fraud, abuse, and mismanagement. It also removes restrictions that narrowed the scope of what constituted a "protected disclosure" under the Whistleblower Protection Act. In addition, it enhances OSC's ability to hold managers and supervisors accountable for retaliating against whistleblowers, and bolsters remedies available to federal whistleblowers who have been the victim of retaliation. Finally, it expands whistleblower reprisal protection to employees of the TSA.Jason Zuckerman, "Congress Strengthens Whistleblower Protections for Federal Employees" , American Bar Association Section of Labor and Employment Law newsletter, November–December 2012
On December 28, 2012, President Barack Obama signed the Hatch Act Modernization Act of 2012 into law. This update to the Hatch Act of 1939 allows most state and local government employees to run for partisan political office. The original Hatch Act prohibited many of them from running for partisan office. Under the new law, state and local government employees are no longer prohibited from running for partisan office unless their salary is paid for completely by federal loans or grants. As a result of the Hatch Act Modernization Act, many state and local government employees may participate more actively in their communities' governance.Office of Special Counsel factsheet, "Congress Allows Most State and Local Public Employees to Run for Partisan Office"
1970s and 1980s According to congressional testimony by Tom Devine, legal director of the nonprofit Government Accountability Project: