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2	Topics 5 U.S.C. Chapters 12, 23, 73 U.S. Office of Special Counsel (OSC) ● Prohibited Personnel Practices ● Whistleblower Protection
3	Office Of Special Counsel (OSC) 5 U.S.C. §§ 1211-19; 5 C.F.R. PART 1800 Authorized to — Investigate prohibited personnel practices and other activities prohibited by civil service law, rule, or regulation Seek corrective action for victims of prohibited personnel practices Seek disciplinary action against officials who commit prohibited personnel practices
4	Office Of Special Counsel (OSC) 5 U.S.C. §§ 1211-19; 5 C.F.R. Part 1800 Authorized to — Provide safe channel for whistleblower disclosures Advise & enforce Hatch Act provisions on political activity by federal, state, and local government employees Protect reemployment rights of federal employee military veterans and reservists under USERRA
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6	Responsibilities of Agency Officials 5 U.S.C. § 2302(c) Agency heads, and officials with delegated personnel management authority, are responsible for — Preventing prohibited personnel practices Following and enforcing civil service laws, rules, and regulations Ensuring that employees are informed of rights and remedies (in consultation with OSC)
7	Key Concepts Merit System Principles The framework and foundation for making all personnel decisions in the civil service Prohibited Personnel Practices Admonitions against specific practices that conflict with merit systems principles Whistleblower Disclosures Osc provides a safe channel for disclosures by current and former federal employees and applicants for federal employment
8	Prohibited Personnel Practices: Overview 12 Prohibited Personnel Practices —four general categories: Discrimination Hiring practices that offend merit system Retaliation for protected activity (including whistleblowing) Catch-all: violation of law, rule or regulation that implement merit systems principles (including constitutional rights)
9	Discrimination Prohibited Personnel Practice to discriminate: Based on race, color, nationality, religion, gender, handicapping condition, age, marital status, or political affiliation Based on “conduct which does not adversely affect the performance of the employee or applicant, or the performance of others,” including sexual orientation 5 U.S.C. § 2302(b)(1) and (b)(10)
10	Political Activity Prohibited Personnel Practice to: Coerce political activity of any person (including providing any political contribution or service) Reprising against an employee or applicant for employment for the refusal of any person to engage in political activity 5 U.S.C. § 2302(b)(3)
11	Hiring Offenses Obstructing the right to compete Influencing withdrawal from competition Unauthorized preferences Nepotism Considering improper job references Knowingly violating veterans’ preference 5 U.S.C. § 2302(b)(2); (b)(4); (b)(5); (b)(6);(b)(7); (b)(11)
12	Hiring Offenses Most common violations: Deceiving/willfully obstructing right to compete for employment — 5 U.S.C. § 2302(b)(4) Influencing withdrawal from competition to improve or injure employment prospects of another — 5 U.S.C. § 2302(b)(5) Granting unauthorized preference or advantage to improve or injure the prospects of any particular person for employment — 5 U.S.C. § 2302(b)(6)
13	Hiring Offenses
14	Hiring Offenses Caveats: While most hiring offenses require intent to deceive or manipulate, hiring in violation of a law, rule, or regulation implementing a merit system principle is also a PPP Negligent or imprudent actions can create appearance of violation leading to complaints and investigations — E.g., Broadcasting one’s choice before competition
15	Examples of Hiring Offenses Manager deliberately fails to post vacancy to stop particular candidate from applying Application received is deliberately misplaced or destroyed Supervisor gives employee dishonest recommendation or appraisal to keep valuable employee or to help another candidate
16	Examples Of Hiring Offenses Supervisor encourages subordinate not to compete, or to withdraw application, by promising future benefits that supervisor does not intend to grant Closed vacancy announcement is re-opened to permit favored candidate to apply
17	Examples Of Hiring Offenses Job qualifications are manipulated to favor particular applicant Supervisor tells qualified employee not to apply for job in order to improve another employee’s chances of selection
18	Catchall Prohibited Personnel Practice
19	Retaliation 5 U.S.C. § 2302(b)(8), (b)(9)
20	Elements of Proof: Reprisal for Whistleblowing 5 U.S.C. §§ 1214(b)(4)(a)-(b), 1221(e)
21	Protected Whistleblower Disclosures 5 U.S.C. §§ 2302(b)(8), 1213 Disclosure Categories Violation of any law, rule, or regulation Gross mismanagement: substantial risk of significant impact on mission Gross waste of funds: more than debatable expenditure Abuse of authority Substantial & specific danger to public health & safety
22	Protected Whistleblower Disclosures (cont’d) 5 U.S.C. §§ 2302(b)(8), 1213 Generally protected when made to any person (except the wrongdoer) Need not be accurate to be protected Protected if employee reasonably believes that it is true — test is both objective and subjective
23	Protected Whistleblower Disclosures (cont’d) 5 U.S.C. §§ 2302(b)(8), 1213 No requirement to go through chain of command Whistleblower’s personal motivation does not negate reasonable belief Employee or applicant protected if employer mistakenly believes he or she is a whistleblower
24	Protected Whistleblower Disclosures (cont’d) 5 U.S.C. §§ 2302(b)(8), 1213
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26	Contributing Factor Any factor which alone or in connection with others tends to affect in any way the outcome of the personnel action at issue Can be established by knowledge / timing alone Often established by circumstantial evidence
27	Clear and Convincing Evidence (Agency Defense) Agency must show — by clear and convincing evidence — that it would have taken same action without disclosure Factors: Strength of evidence in support of personnel action Existence & strength of motive to retaliate Treatment of similar employees who are not whistleblowers
28	OSC’s management advice Be measured in your speech and actions Keep the merit systems concepts on your radar screen Seek expert advice when you are unsure Deal with problems as they occur to avoid the appearance of bad motive Be consistent in managing your employees Do your best not to be someone about whom the whistle is blown
29	Corrective Action 5 U.S.C. § 1214
30	Corrective Action (cont’d) 5 U.S.C. § 1214 Corrective Action includes: Placing individual in the position he or she would have been in had no wrongdoing occurred e.g., rescind suspension; job restoration Reasonable and foreseeable consequential damages Attorney fees, back pay and benefits, medical costs, travel expenses
31	Corrective Action (cont’d) 5 U.S.C. § 1214
32	Disciplinary Action 5 U.S.C. § 1215
33	Disciplinary Action (cont’d) 5 U.S.C. § 1215
34	Disciplinary Action (cont’d) 5 U.S.C. § 1215
35	Disciplinary Action (cont’d) 5 U.S.C. § 1215
36	Whistleblower Disclosures 5 U.S.C. § 1213 The Office of Special Counsel provides a safe channel for whistleblower disclosures by federal employees, former federal employees, and applicants for federal employment
37	Whistleblower Disclosures 5 U.S.C. § 1213 Jurisdictional elements Covered agency Most executive branch agencies Covered position Disclosure must invovle occurrence connected to performance of employee’s duties & responsibilities
38	Whistleblower Disclosures 5 U.S.C. § 1213 (b) OSC has no investigative authority OSC shall make substantial likelihood determination 15 days after receiving information from whistleblower Substantial likelihood: agency investigation more likely than not to substantiate allegations Follows MSPB definitions of gross waste of funds, gross mismanagement, & abuse of authority
39	Whistleblower Disclosures 5 U.S.C. § 1213 (c) Referrals-- If Special Counsel determines there is substantial likelihood that information shows one or more categories of wrongdoing, Special Counsel must transmit information to agency head
40	Whistleblower Disclosures
41	Whistleblower Disclosures
42	Whistleblower Disclosures Agency’s report and any whistleblower comments are transmitted to President and congressional oversight committees with jurisdiction over the agency involved 5 U.S.C. § 1213 (e)(3)
43	Whistleblower Disclosures If Special Counsel determines that there is no substantial likelihood that the information shows one of the categories of wrongdoing, then Special Counsel informs whistleblower Reasons why disclosure may not be further acted on, and Directs individual to other offices available for receiving disclsosures—5 U.S.C. § 1213 (g)(3)
44	OSC WEB SITE (http://www.osc.gov)
45	OSC Phone / e-mail contacts
46	OSC Mail Contacts