The Office of Special Counsel seeks to enhance its transparency

You may have heard. It’s national election season. The more partisan things get, why the more partisan they get. So the Office of Special Counsel is on high alert for reports of possible violations of the Hatch Act against office campaigning. This as the OSC itself embarks on an update of its own transparency procedures. We got an update from Special Counsel Hampton Dellinger on the Federal Drive with Tom Temin.

Interview transcript: 

Tom Temin And how is the election season going when you think it can’t get more nasty and partisan, but yet it does.

Hampton Dellinger Well for the Office of Special Counsel it’s busy, and we focus on the law. We urge federal employees to call us on the front end to ask questions about the Hatch Act. We are very focused on education and training in addition to our enforcement work. But at times we do have allegations that are serious violations and then we have to act.

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Tom Temin Right. And what are people asking in the calls? Like, can I wear my MAGA or Kamala hat to the office or that kind of thing? Or is it more serious?

Hampton Dellinger It is that and more. And the answer to the question is no. Do not wear your campaign hat, your T-shirt, your button, or bring your campaign mug to the office. Save that for after work, save it for the weekend.

Tom Temin Even a mug that just happens to be lying there passively. Probably not a good idea.

Hampton Dellinger Well, our focus is what Congress says in the Hatch Act. And I’ve gone back and read the legislative history for the Hatch Act in Congress, members of Congress. Were very focused on buttons, hats, pins and indeed, mugs. So there are a lot of things you can use to have your cup of coffee or tea. Just leave the campaign mug at the house.

Tom Temin And it’s not just items either. It is what you talk about in the office and what you bring up and that kind of thing, too, isn’t it?

Hampton Dellinger Well, that’s right. It’s what you talk about and what you do. And of course, government employees have a voice, an important voice. And my office is very focused on the speech rights of federal employees. And we’ve been very active in making sure that there aren’t gag rules or policies or NDA’s in place that are curbing employee speech. But at the same time, that public voice has to be used in the public interest, not for political interests. And so we did have to find a high ranking official guilty of violating the Hatch Act for his comments that he made. That was the secretary of the Navy. And of course, I’m glad that he’s now acknowledged his mistake, has apologized for it, has taken extra training.

Tom Temin Yeah, that’s something that I think people overlook, even political appointees who everyone knows who appointed them, and therefore, what their party affiliation and what their political proclivities might be still are absolved from that official platform of espousing a political view or urging someone to vote for the person that appointed me.

Hampton Dellinger That’s right. There’s a way to do it the right way. If you decide you’re going to engage in partisan politics, then you do it off the clock. You do it in your personal capacity. You make sure that it’s clear to your audience. But when you’re going to do it on the clock, taxpayer supported trips in your official capacity, that’s where there are real constraints on your political speech. And that’s the law. And so our job is just to enforce the law as written.

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Tom Temin Yeah, this is good reminder, especially for younger federal employees or Generation Z type folks who have maybe less sensitivity toward separation of different areas of their lives in the social media area. And they need to understand federal setting there are, as you say, statutory and not just cultural norms here.

Hampton Dellinger That’s right. And I know and you know how hard federal employees work. And we talk about that work life balance. And that’s one way, I think, to remind yourself about the Hatch Act, which is when you’re working, there are constraints on your speech. There is a 24/7 prohibition on fundraising as a federal employee. So you always need to be careful about that. But when you are enjoying your non-work life, that’s when your full free speech First Amendment rights should be enjoyed. When you’re on the job, when you’re on the clock as a federal employee, that’s where your focus needs to be. The public good and not partisan ends.

Tom Temin And so a lawn sign at home is ok?

Hampton Dellinger Yes. And I will say that I’ve got colleagues who’ve been doing this five, 10, 25 years. I feel like I know the Hatch Act, my sense is that a yard sign is fine. But if you have any question at all, we want you to contact us, call us on the front end, emails on the front and ask permission and not forgiveness. We want to be responsive in real time. And so I encourage every federal employee with a question to call 1-800-85hatch or email us at Hatchact@osc.gov.

Tom Temin All right. We’ll make sure that’s listed when we post this interview online as well. We’re speaking with Hampton Dellinger. He is the special counsel at the Office of Special Counsel. And you’ve also launched a gambit which I guess will really take flight after the next fiscal year coming on transparency and accountability of OSC, itself. What are you planning?

Hampton Dellinger Well, there’s two parts of it. One, absolutely I want OSC operations to be more visible, more transparent, more understood so the public knows what we’re doing, and why we’re doing it. But, Tom, the other piece of it is I am looking for transparency from the agencies that we interact with. So in addition to enforcing the Hatch Act, we have a couple of other major responsibilities. One is when we get a report of wrongdoing by a whistleblower, we can ask the agency to initiate an investigation into that allegation.

Tom Temin Retaliation, that type of thing.

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Hampton Dellinger And we want to make sure we’re very focused. That’s really the heart of what we do, is making sure that the whistleblowers are not retaliated against. And we will go into the Merit Systems Protection Board on their behalf. But when we get that allegation, we can ask the agency to look into it, and that’s good. But what happens is Congress says the agency should report back to my office in 60 days. It’s taking, on average, two years, two years to have a report that we initiate be closed. I see many cases where it’s three and four years. And so what I’m proposing and I’m eager for feedback at transparency at OSC.gov, anyone can tell me what they think. I would like to put up a summary of the allegation, and I only start this process when I have found per the statute, that there’s a substantial likelihood of wrongdoing. And I take that very seriously, and we don’t start an investigations lightly. So in those instances, I think after the 60 days elapses, and if the agency still needs more time, we should be able to, with the Whistleblowers permission, put up a summary of the allegation so the public knows what I know, and what the agency’s looking into.

Tom Temin What about reducing the time to close those investigations in the first place?

Hampton Dellinger We’re doing that, too. And so now every request for an extension of time that an agency makes to my office comes to me. And after 60 days, I want it to be a careful investigation. I’ve got tremendous respect for the inspectors general who are often conducting these reviews. But I want everyone to focus on what Congress wants, which is a quick answer to a serious allegation. And so we are looking at extension requests differently these days. And I want to have a number of options for the public and for the whistleblower to know that something is being taken seriously and looked into quickly.

Tom Temin And like the Merit Systems Protection Board, you don’t have thousands and thousands of staffers or a phalanx of administrative judges in this kind of thing to deal with this. Maybe review how small OSC really is.

Hampton Dellinger We are tiny, and I can see that coming from the Justice Department with 115,000 employees.

Tom Temin And lots of lawyers.

Hampton Dellinger That’s right. And the Office of Special Counsel, we have 130 full time employees. We’re an independent agency. So that’s includes budget, HR, security, as well as our investigators. So we recognize the constraints that every agency has. But i’m just not comfortable with in cases of a serious allegation, they’re not being anything public facing. Not just for 60 days, but for six months, and at times two, three and four years.

Tom Temin And what is the pace of inbound requests for looking into allegations of whistleblower retaliation?

Hampton Dellinger This year we’ve had more than a thousand allegations, and we look at them carefully. Out of that thousand, 1200 we’ve received this year so far, we’ll send several hundred over for some type of review. And because I have to find a substantial likelihood of lawbreaking, we are very careful. And at times I’ll ask a follow up question or two to make sure it merits this type of effort on behalf of the agency. But in those cases, I do think that the public, the taxpayers, are owed some transparency, some visibility into the situation instead of waiting for everything at the end, when I’ve made a substantial likelihood determination at the front end, let’s see something in real time so people know what’s going on.

Tom Temin And just a quick question, because not everyone on earth is totally virtuous, and there are sometimes people that are dealt with because of performance problems. They might be good people, but they don’t fit well in the agency or they’re underperforming and changes are made to their employment, the job they have, then they decide to almost reverse retaliate and find something to blow the whistle about. Does that ever happen?

Hampton Dellinger It could on occasion, but my colleagues are really experienced, and we are receiving information from people inside agencies who have evidence. And we seek the evidence, we test the evidence, were careful and we have options. So we’re not sending over everything. We’re not sending everything over at the highest level. The other thing I want to say quickly, Tom, is that the other thing we do is protect those whistleblowers from retaliation. And in cases where we see evidence of a prohibited personnel practice after we’ve given the agency an opportunity to do the right thing, then to I’d like to put up a summary of the situation while we prepare for litigation in front of MSPB.

Tom Temin Right. And just for clarification, whistleblower complaints are supposed to go to your agency’s inspector general who would be on the lookout for retaliation also. In other words, you don’t take the whistleblower complaint itself, it’s the retaliation that you deal with.

Hampton Dellinger That’s right. Although the whistleblower could come to us with their allegation of wrongdoing by an agency official and we can initiate an investigation of that. But they could also go to their inspector general. They can go to Congress, they can go to you, and they go to the media. And we believe that government employees have meaningful speech rights. It’s in the statutes, and it’s in the Constitution. And we are very respectful and we encourage fellow employees to speak up and speak out.

Tom Temin All right. Well, let’s hope your season ends happily and the election comes out to everyone’s satisfaction, which means that’s only 50% of the case, and I’m talking about now. But to summarize, it’s been busy.

Hampton Dellinger Well, yes. And victory for us at the Office of Special Counsel, it would be no Hatch Act violations going forward. We’re looking to get to zero.

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