Katz, Marshall & Banks Partner Debra Katz Speaks With NPR About OSC Head Carolyn Lerner

Katz, Marshall & Banks Partner Debra Katz appeared on NPR’s All Things Considered yesterday to discuss Carolyn Lerner, the new head of the U.S. Office of Special Counsel (“OSC”).  Lerner has been a breath of fresh air for whistleblowers since she arrived at the OSC.  Just two weeks after arriving at the OSC, Lerner publicly stated that she planned to use her authority “to stay questionable personnel actions against federal whistleblowers so that they are protected from the immediate consequences of illegal retaliation.”  Since then, she has been a force for employee-whistleblowers within the federal government.

Among Ms. Lerner’s accomplishments in her first five months at the OSC are:

July 5: Granted stay request by MSPB in case of DHS Customs and Border Protection Agent David Butterfield, who OSC alleged was retaliated against for disclosing to OIG and DHS a supervisor’s disclosure to him that Butterfield was the subject of an IA investigation.

August 9: Launched a three-year Demonstration Project expanding the role of the OSC in enforcing USERRA.  Prior to this project, the OSC served as something like an appeal for USERRA complaints that were first brought to VETS.  Under the Demonstration Project, mandated by the Veterans’ Benefit Act of 2010, VETS will automatically transfer appropriate cases to OSC for investigation, which OSC expects to result in an additional 450 cases.

August 11: Department of Energy Secretary Steven Chu agrees to change his agency’s internal policies and regulations in response to an OSC investigative report regarding reprisals against DOE employee Stephen Patrick.  Specifically, the Department: a) rescinded its policy of mandatory indefinite suspensions when a certification is revoked, instead placing the employee on administrative leave pending appeal; and b) the DOE as created a working group to make changes that will expedite the internal appeals process.

October 6: Lerner called on Congress to reform the Hatch Act, the 72 year old law that limits partisan activity of government employees.  Lerner said her office receives over 2,000 inquires annually, many based around extraordinary trivialities (any small connection to federal funding is usually enough to disqualify), regarding whether a particular candidate in a state or local office is eligible to run. (Letter to NYTimes).  The Act is currently often abused as a political weapon to disqualify otherwise well-qualified candidates, even when there is no indication of wrongdoing.

October 8: Lerner announces OSC’s filing of stay requests in cases of Franz Gayl, the MRAP Whistleblower, and Paul Hardy, a Regulatory Review Officer for the US Public Health Service (“PHS”).

November 4: Lerner commended the Defense Contract Audit Agency’s actions to right the wrongs committed against DCAA whistleblower Diem-Thi Le.  Those actions included: 1) changing Ms. Le’s negative performance appraisals to the highest level of achievement; 2) giving Le retroactive performance awards; 3) lifting her gag order; 4) subsequently granting her a promotion; and 5) disciplining those officials responsible for retaliating against her.

November 8: Lerner describes as “insufficient” the Air Force’s conclusions in response to whistleblowers of serious misconduct at the Port Mortuary in Dover, DE, where bodies were dismembered and otherwise mistreated under orders by Air Force personnel.  She said that while the Air Force has made many changes in response to the whistleblowing, it has failed to take sufficient disciplinary action against the officials responsible for the wrongdoing.

November 16: Lerner applauded the Navy Central Adjudication Facility’s decision to reinstate Franz Gayl’s security clearance and remove the threat of suspension without pay, which was made possible in large part due to the MSPB granting the OSC and Gayl a 45-day stay of his impending suspension.

Ms. Katz noted that this sort of advocacy on the part of employee-whistleblowers within the federal government was absolutely crucial.  “Unless you protect people who are brave and come forward, and they’re conscientious, and they risk their careers to do what is right to protect the public health and safety, then you will not have people coming forward — and we all suffer, and there could be really catastrophic results,” Katz says.

Visit the NPR website to read more or listen to the audio.