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U.S. Office of Special Counsel

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Washington, D.C. 20036-4505


(202) 653-7984      

       The U.S. Office of Special Counsel (OSC) today announced the settlement of a complaint filed with it by Dr. Arthur Lee Hardwick, former Deputy Director, Institutional Participation and Oversight Service (IPOS), Student Financial Assistance Programs, Office of Post-Secondary Education, U.S. Department of Education. Dr. Hardwick alleged that he had been reassigned from his position because he was suspected of making whistleblower disclosures to the Department’s Office of Inspector General.

    OSC’s investigation addressed whether agency officials reassigned Dr. Hardwick because they thought he had disclosed allegations of improper and preferential treatment for a financially troubled private college to the Department’s Office of Inspector General. These allegations resulted in an investigation into the Department of Education’s monitoring and corrective actions related to the college’s participation in student financial assistance programs under Title IV of the Higher Education Act of 1965. The Inspector General’s report was critical of the agency’s actions with respect to the institution, and identified several lenient steps the agency had taken in corrective measures imposed upon it. The Inspector General’s report concluded that the Department had compromised its gate-keeping function and risked setting bad precedent in some enforcement areas. The institution at issue eventually closed because of financial problems, and did not fulfill its repayment agreement with the Department of Education.

    Dr. Hardwick was reassigned from his position after the Inspector General issued his report. On the basis of the evidence gathered during OSC’s investigation, Special Counsel Elaine Kaplan concluded that there existed reasonable grounds to believe that the Department of Education reassigned Dr. Hardwick because it believed that he had provided information to the IG, thereby violating the Whistleblower Protection Act.

    Accordingly, Kaplan sent a Report of Prohibited Personnel Practice to the Honorable Richard W. Riley, Secretary of Education, requesting that the agency take corrective action. While the Department of Education did not agree with the Special Counsel’s findings, it consented to work with OSC and Dr. Hardwick to bring about a mutually agreeable settlement.
The typical relief in a whistleblower reprisal case involving a directed reassignment is to return the employee to his former position. Such relief was not possible in Dr. Hardwick’s case, however, because his former position no longer existed as a result of reorganization.

    Under the terms of the settlement, Dr. Hardwick was detailed pursuant to the Intergovernmental Personnel Act of 1970 (5 U.S.C. § 3371-3376) and was awarded attorney’s fees. In exchange, he dismissed his OSC complaint. Under the terms of the settlement, the agency did not admit fault or wrongdoing.

    Special Counsel Elaine Kaplan said, “Our investigation uncovered what we believed was significant evidence that Dr. Hardwick was reassigned because his supervisor believed that he had made disclosures to the Inspector General.” Kaplan pointed out that, “under the statute, it is as unlawful to retaliate against an individual perceived to be a whistleblower, as it is to retaliate against an actual whistleblower.” For that reason, Kaplan observed, “I asked the Secretary of Education to voluntarily provide corrective relief to Dr. Hardwick.”

    Kaplan expressed her appreciation to the parties for their “patience and flexibility during the lengthy negotiation process.” Special Counsel Kaplan also complimented the Department for its cooperation in settling the case without the need for litigation.

    The U.S. Office of Special Counsel receives, investigates, and prosecutes before the U.S. Merit Systems Protection Board charges concerning the commission of prohibited personnel practices, including reprisal for whistleblowing. OSC’s investigations frequently result in the favorable settlement of complaints without litigation. To learn more about OSC, please visit its home page at http://www.osc.gov