Election season is busy season for Office of Special Counsel

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The emergence of racial protests and the coming of a contentious election all have made work for the Office of Special Counsel. Everyone needs to walk a fine line between allowable talk and politicking. For an update, Special Counsel Henry Kerner joined Federal Drive with Tom Temin.

Interview transcript:

Tom Temin: Mr. Kerner, welcome back.

Henry Kerner: Thank you so much, appreciate you having me on.

Tom Temin: And I was thinking about you when you issued a ruling, finding not too long ago about support in language with respect to the Black Lives Matter movement in the federal workplace. And it seems like that is allowable, but only within certain conditions — and just review for us what it is you determined.

Henry Kerner: Sure, thanks. So obviously, the Black Lives Matter topic and the group itself also our hot button issue, and so we’ve gotten a lot of questions. And pursuant to that are professionals and the Hatch Act unit, who are civil servants, so they’re not political actors, issued what we call an advisory. And as part of our Hatch Act function, we’re allowed to issue advisories. And we tried to do that in order to educate the federal workforce. Now, in terms of the Black Lives Matter issue, we look at the terms of political activity. And so people need to be aware of the fact that the term political activity can be confusing because when people hear political activity, they may understand a whole host of things, including legislation, lobbying of elected officials. But in the Hatch Act context, political activity has a very specific definition. And it’s defined as activity directed towards the success or failure of a political party, or a partisan political group or a candidate for partisan political office. So it’d be helpful to think of the Hatch Act as focusing on the electoral process, which is just one part of the larger political process. And so at the end of the day, our Hatch Act unit posed the question to itself if you will, if an employee says to coworker I think we should all support or oppose Black Lives Matter, or the Tea Party. as we go back a few years. Can we prove to a judge that those statements meet the Hatch Act definition of political activity? Once again, activity directed towards the success of political parties or groups or candidates. And the answer appears that we think is no. And so we’ve applied the same analysis to the Black Lives Matter issue as the Hatch Act unit prior to my tenure had also done with the Tea Party when that became an electoral issue back in 2011.

Tom Temin: So there was precedent there, in other words.

Henry Kerner: Exactly. And like I said, they’re non politicals, they’re not taking issue with the message. They’re just trying to see what its impact is on the electoral, political activity towards the political parties. So they’re just looking at the electoral process. And that’s what they focused on and based on the precedent of the Tea Party, the view of the Hatch Act unit at my office was that Black Lives Matter is issue specific it’s about addressing racial justice — Tea Party was about government spending. And so because they’re issue related, they are not violations of the electoral prohibitions.

Tom Temin: So as a practical matter, then wearing a Black Lives Matter or a Tea Party t-shirt into the office would not be the same as wearing a Biden or Trump t-shirt to the office.

Henry Kerner: That’s correct. Now, having said that, I want to be very clear, which is just because the Hatch Act isn’t violated — and also, let me make clear the Hatch Act could be violated if you’re wearing a BLM hat or something and say because we support Black Lives Matter, you should you should vote for a particular candidate so it can be connected to political activities — and in addition, of course, agencies have policies on political expression and other things. Federal workers are expected to work for all taxpayers and to keep politics largely out of the workplace. So to the extent that there are laws and ethics policies outside of the Hatch Act, they could be applicable and employees should check with their respective ethics officers.

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Tom Temin: I guess if you take any position, regardless of what it might be, and push it to an overly zealous degree that could create hostile working conditions or just an unpleasant office, which you wouldn’t want to do anyway.

Henry Kerner: Exactly, exactly. And so from an agency perspective, we try to create an inclusive office environment where everybody’s views are heard and where people are doing the work that the taxpayers expect us to do and bickering over each other’s political views. But from the Hatch Act perspective, I think it’s just important to point out that’s only one specific law., and our advisory has held that that the Black Lives Matter issue if you will, did not violate the Hatch Act.

Tom Temin: We do have an election coming up. And I think it’s fair to say it’s going to be contentious. And you’ve already had some violations that are pretty visible that you’ve issued press releases on. Just a quick reminder, maybe for people now that the non-conventions are at hand — what are some of the things to avoid in the season?

Henry Kerner: Yeah, absolutely. So as always, as we approach, this as our tax season in the Hatch Act unit, so this was right before April 15, last years, and because of that, there’s always an increase in Hatch Act complaints. And this year is, of course, no different. So the three things to really think about are two 24/7 prohibitions on federal employees. One is they cannot solicit or accept political fundraising for political parties. So that includes posting or liking messages on social media that solicit money for candidates or parties. So the fundraising is out. The other 24 seven prohibition, that’s at all times, is they cannot use their official authority to influence or affect an election. So if employees do engage in political activity, they must do so on their own time and they must do so in their personal capacity and not representing their government agency. So for example, employees who give media interviews and official capacity cannot express support for opposition to candidates for partisan political office during those official interviews. And the last one is the one that’s probably that we get the most complaints on, and that’s political activity on duty, especially relating to social media. And now obviously, we’re all we’re dealing with a lot of folks are teleworking. So what does annuity mean and a teleworking environment? Well, on duty means that if if the employee is in what’s called a pay status, other than paid leave, if you’re paid vacation, that’s one thing. But if you’re in a pay status, even if you’re at home, there are certain restrictions. Employees are on duty when they are working, even when they’re teleworking, and they cannot post their views about a candidate on social media, or a campaign t shirts or hats while participating in you know, zoom calls, etc. Or display partisan materials like campaign signs or candidate pictures during such calls, forward or send emails or texts about candidates, or engage in campaign related volunteer work. So those are the three main restrictions that we’d like to remind people to be wary of

Tom Temin: Yes, you’ve answered my question that I was going to ask and that is when you are on a telecall, tele-video call, you have to be as if you were in the office in terms of the accoutrements and what it is you display.

Henry Kerner: Exactly. And we’ve had this we’re on a zoom call or something, you see someone and they’ve got a sticker for a candidate in the back and you just have to cover those up. You can’t have them.

Tom Temin: And I wanted to ask you about something unrelated and that is a report that came out back in June that OSC found a software flaw in the Treasury Department and resulted in improper payments. And I just wonder how that came to the Office of Special Counsel of all things. and how did you discover it?

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Henry Kerner: Yes. Well, thank you for asking about that. So one of the things that the Office of Special Counsel is able to do is we’re a safe channel for disclosures, disclosures of wrongdoing, in the health and safety context, that comes up with COVID a lot now, but also for abuses of gross waste of funds. And so we had an anonymous whistleblower, who incidentally and this was kind of unusual had personal knowledge of two agencies, Treasury and Labor, where he knew about a software glitch. So OSHA, which is under the Department of Labor fines employers for various workplace safety violations, and there were about 11,000 of these delinquent fines, and what OSHA then did is it transmitted to the Treasury Department for collection. However, there was a software glitch, which are anonymous whistleblower identified, which prevented the transfer from including the link when business owners contact information. Well the contact information was essential, because prior to collecting these fines Treasury needed to send a demand letter. Because they didn’t have the contact information, they were unable to send the demand letter, no demand letters were out and no money was collected. Once we were able to refer it to both Labor and Treasury, they both substantiated the allegations, fixed the software and have begun collecting the $92 million in uncollected debts. Importantly, let me just add one more thing. That was only OSHA. Apparently there are 12 additional federal agencies unrelated to OSHA that also had delinquent fines and that the Treasury Department’s also wasn’t collecting due to this glitch. They are working on the supplemental report to us, which we expect in the fall that will lay out, once they fix it, the collection of millions of more dollars of taxpayer money that we’re helping collect.

Tom Temin: And had the whistleblower notify the agencies and just didn’t get a good answer.

Henry Kerner: Typically what happens is they do let folks know up the chain, I don’t know in this particular case, but they are always welcome to come to us. Like I said, we represent a safe channel for them to to make this disclosure and in this case and saved a lot of money, already $92 million.

Tom Temin: Yeah, I would say that also that you would think the agencies would wonder, how come no money is coming in from all these fines we’ve levyed?

Henry Kerner: Yes, yes, they would. But I think what happens is a lot of times when you have multiple agencies involved it sort of becomes a little bit less clear on sort of where in the process it is. And like I said, because they didn’t have the contact information, they weren’t able to send out demand letters and even start the process.

Tom Temin: Well, lesson learned, I guess. Call Henry if anything else fails, and the money’s not coming in.

Henry Kerner: I think it’s good. I think it’s in the interest of everyone., right. Obviously the taxpayers, those $92 million, that’s taxpayer money. Obviously, the agencies, I think are grateful that they were able to fix the glitch. So I think we didaid them in that.

Tom Temin: And tell us about some of the measures you’ve taken during the pandemic to address the personal issues your own employees might be dealing with. I think there’s some instruction here for lots of federal agencies.

Henry Kerner: Yeah, so a couple of things. So the health and safety of my employees, obviously, is priority one. And so the first thing is we went to mandatory telework, mandatory precautionary telework as we callled it starting March 16, which I think was among the earliest agencies., there was a couple others. So we went to mandatory telework so people are not in the office. We do have occasionally people here but it’s social distancing, masks etc. And then so on top of that we also worry about the mental health. So one of the things we’ve done is we have established something called Wellness Wednesdays, not our creation. Basically is a program that’s completely voluntary, that involves a guest speaker. We’ve had yoga instructors, we’ve had meditation people, we’ve had people from the inclusion and equity departments at the Bureau of Prisons who spoke to give context and allow people to express their feelings about some of the civil unrest after the killing of George Floyd. We’ve had pets, today we have pets, so people can sort of show their pets and other people can enjoy seeing cats and dogs. As you may know, during the pandemic, there has been a huge rush on adopting animals. So I think that’s good. And also we try to check in with folks because they don’t have the opportunity to see each other at the office. They’re worried about COVID, they’re worried about their children and their education. They’re worried about their parents a lot of times, or maybe some elderly relatives who may be affected. Worried about their own health. And so I’ve been concerned about trying to assist folks with the mental health aspect, not just in terms of getting excellent results for our stakeholders. That said, and I’m just unbelievably proud, we had our best quarter last quarter in terms of getting favorable actions for whistleblowers. We had 105, which is the highest number in OSC history. And so that really speaks to the kind of efficiency and ability of our employees ho are all working from home to still get the work done. I’m an older gentleman, so I come from a sort of perspective where you got to be in the office, but I have been incredibly impressed and frankly, had my mind changed about teleworking. I don’t think we want to do 100% teleworking because of the absence of seeing people and having that the community, but I definitely think that even in the post COVID era, some portion of teleworking has been incredibly productive and I’ve been very impressed with the professionalism of the OSC workforce.

Tom Temin: Interesting, people are working harder than ever, but yet there’s kind of a psychic toll that the general environment seems to be taking on people.

Henry Kerner: Yes, exactly.

Tom Temin: And you have COVID Task Force. Tell us what that is and what it does.

Henry Kerner: Yeah, I’m very proud of the COVID Task Force. So on February 27, we got our first case, and then cases started coming in. Now most of those cases initially, were related primarily to health and safety concerns. So we would have whistleblowers who would say, hey I have asthma, I have a weak heart, and yet my agency’s detailing me to a COVID tent and I have to do COVID checks with people, obviously, some of whom are likely to be positive, and I don’t have enough PPE protective gear, and I have this prior health condition. And what we did is we established a COVID task force that that took resources and members from different units, from our disclosure unit, as well as our different prohibited personnel practice units. We put them all together, and by marshaling these resources, we were able to course correct a lot of these cases in much, much faster time. So a lot of times we would call over to the agency, and we will get them to rescind that detail, for example, or provide the PPE to folks. And on top of that we also were able to refer a lot of these cases, we’ve had since February 27 we’ve had 78 total disclosure cases, and in addition to that, we’ve had 95 complaints or prohibited personnel practices. So that’s about 173 cases. And like I said, we’re handling them in the task force. A lot of them are handled very quickly, we have what we call these course corrections or immediate actions. We close them up quickly, too. And we’ve, been able to save lives, basically, by alerting agencies to where they might have these various unsafe conditions that under COVID can really endanger people’s lives.

Tom Temin: In other words, word came into OSC from employees concerned that they were being exposed or others in their agencies were being exposed, or maybe these people had it and were coming to work anyway.

Henry Kerner: Exactly. All those things. We’ve seen all of that.

Tom Temin: Alright. Henry Kerner is special counsel in the independent Office of Special Counsel. Thanks so much for joining me.

Henry Kerner: Well, thank you. Appreciate it.

 

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