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The Office of Special Counsel has had a busy season. It’s dealt with a landmark Hatch Act violation case that sent one federal employee home without pay for six months. And it found itself at the center of a federal employee lawsuit over the vaccine mandate. Federal Drive with Tom Temin spoke to Special Counsel Henry Kerner....
The Office of Special Counsel has had a busy season. It’s dealt with a landmark Hatch Act violation case that sent one federal employee home without pay for six months. And it found itself at the center of a federal employee lawsuit over the vaccine mandate. Federal Drive with Tom Temin spoke to Special Counsel Henry Kerner.
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TomTemin: This has been a tumultuous time. But one thing I wanted to start with, and that is the fact that a related and interactive agency with you, the Merit Systems Protection Board, finally has a quorum now for a few months running after five years, I think it was, without a quorum. A couple of years with no members. Is that helpful to the Office of Special Counsel?
Henry Kerner: Yeah, absolutely. We’re very thrilled that the MSPB has a quorum. Tristan Leavitt was an alumnus of OSC, himself and Mr. Ray Limon. So we have a quorum, and there may be another member too, so that they will be fully staffed. And that is hugely important to the Office of Special Counsel. Most importantly, we can get stays, formal stays, which keep federal employees who are in place. So instead of getting disciplined, they can stay in place while we investigate. So that’s really important. And also a lot of our decisions go to the MSPB. A lot of cases we bring. And so having a fully functioning MSPB is crucial to the to the OSC.
Tom Temin: Right. And if people do get disciplined, the OSC lacks enforcement power that the MSPB with actual members can enforce things.
Henry Kerner: Precisely. Exactly right.
Tom Temin: So it’s good for the government on one case and good for the employee on another case, depending on which side of yes or no they fall on.
Henry Kerner: Sure. But it’s also good just to have finality, and also to know that you have sort of a referee, if you will.
Tom Temin: Sure. And they’ve been putting out cases. I get some of them emailed to me. Interesting cases, some of them going back a long time.
Henry Kerner: Yes, they have quite a backlog, as you’d imagine, since they haven’t had a quorum. And so they’ve been very productive. It’s really nice to see.
Tom Temin: Yes, because, you know, at some level, really what the Office of Special Counsel and the MSPB are about is justice at the bottom of all this procedure and process. And so justice delayed sometimes is not quite full justice.
Henry Kerner: 100%. Absolutely. And also that the Special Counsel used to be a member of the MSPB. It was the Special Counsel of the MSPB until they got separated. And so as you say, that is pretty much where the Office of Special Counsel derives a lot of its powers is to go to the MSPB for enforcement.
Tom Temin: Let’s get to one of these cases. And this is a Hatch Act violation. I think the case is called Special Counsel versus Cowen and this has been talked about a lot in town. Who was Cowan, what did he do and give us why this matters?
Henry Kerner: Sure, absolutely. So that was a 2014 case. Mr. Cowan was a postal service employee, and he also ran for a partisan political office in Tennessee. It was a county commissioner. Because you’re not allowed to run for office under the Hatch Act, we brought a case. And there was a settlement reached that asked him to get 180 days suspension unpaid, which is significant. But did allow him to keep the job that he ran for and won and his federal position as well.
Tom Temin: Right. From which he was suspended for a while. So his expectation was, I’m the commissioner and I get to go back to my agency.
Henry Kerner: That’s correct. And so there was a settlement reached, it went to the MSPB, there was no board, as we discussed. So an ALJ had some concerns about the fact that he seemed to be benefiting from the misconduct, which is the running for the office. But a decision was made at that time, (this proceeds on my tenure), to allow him to do the 180 days. So that was viewed as a significant disciplinary action. And that the removal of, or stepping down from the office, was not required. That settlement was then recently adjudicated by the board to stand. And so the decision of Cowan stands for the proposition that a settlement that encompasses a legal settlement is permitted to stand if OSC and, of course, the subject agree on it. It does not give license to people to hold the office that they ran for illegally or unlawfully. And so I want to reiterate to the federal workforce that it’s very important for them to remember that you cannot run for the office, and it certainly would not be our intent to allow people to keep that office going forward.
Tom Temin: Right. So if you want to take the risk of saying, well, it’s worth six months of no pay, and I get to go back to my job and also the office I ran for No, no, no.
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Henry Kerner: Correct. No, no, no, no, it’s exactly right. The MSPB and OSC have viewed active candidacy for a partisan political office to be a very serious violation of the Hatch Act in the past, and one that has in the past warranted removal from office. And so we’re certainly going to take a very dim view of that.
Tom Temin: So what is the disposition of Cowan himself at this point?
Henry Kerner: The Cowan case is settled. So the settlement was approved by the board. And so Mr. Cowan is going to do the 180 days suspension unpaid. And then he does get to keep the office because that was agreed on.
Tom Temin: So that one got away, so to speak, for what the intent is.
Henry Kerner: Well, I just think like I said, that’s a somewhat unusual case. And that proceeds my tenure, I don’t know all the facts. But under certainly my reading, I think we are not going to allow people to benefit from the misconduct of running for the office unlawfully.
Tom Temin: And even if they lose, they can’t run for the office.
Henry Kerner: Correct. That’s the violation. It’s doesn’t matter whether you win or lose. It’s the running for the office that violates the Hatch Act.
Tom Temin: We’re speaking with Special Counsel Henry Kerner of the Office of Special Counsel. And by the way, can you be appointed by a local or state government to a position? And how does that fit into the Hatch Act?
Henry Kerner: So my understanding is that, for example, you could you could be an elected official and then get a federal job. It is not the position itself, that’s illegal, but the candidacy. So presumably, you could be appointed to a job, you just can’t run for it.
Tom Temin: Right. So it could be probably something benign, like a commission or a zoning board or that type of thing. I guess they’re appointed in some places and elected and some others. But you can accept an appointment from your local county council, to the commission on library renovation or something, I’m making this up and you’d be okay.
Henry Kerner: You would. Also don’t forget, a lot of these positions are nonpartisan. So if it’s a nonpartisan office, then you can have it anyway. So that’s, the Hatch Act wouldn’t generally apply to nonpartisan elections.
Tom Temin: Right. By the way, I looked this up, I think, last year, and there is no place in the United States where dog catcher is an elected position. That’s a maybe a term of vernacular, but not a reality.
Henry Kerner: Got it. Okay.
Tom Temin: We can settle that one, too. And the other case I wanted to ask you about is the fifth circuit decision that says OSC is the venue for people who want to challenge a personal action related to the vaccine mandate. Which, I guess, the echoes of which are still rocketing around the federal government?
Henry Kerner: Yes, they sure are. There’s an executive order that the president signed back in 2021, which mandates COVID-19 vaccinations for all executive branch employees, and that this was challenged in court. The district court in Texas, I believe, initially issued an injunction. So it wasn’t in effect, the fifth circuit overturned that or returned the injunction. And it is still stayed until the end of this month, which is May. So but it’s supposed to go into effect starting in June. And that could result in a big number of cases coming to OSC, potentially,
Tom Temin: Right. The injunction in June prevents the furtherance of the vaccines.
Henry Kerner: Correct. The injunction has enjoined the executive order from taking effect. But if that injunction is, in fact lifted, as it likely is, at the end of this month, we could see a number of cases coming to OSC because of how the opinion is structured.
Tom Temin: Right. So that is to say people forced then on the account of their jobs to have the vaccine could bring an action.
Henry Kerner: Absolutely. It’s jab or job, as someone said. And so the idea would be that if there’s a vaccine mandate, and thenan employee doesn’t wish to to get that. There are other avenues, they can get the accommodation, a religious accommodation, for example. However, if if they get proposed for removal, or for some other discipline, they do have the avenue to come to OSC for for us to examine their case.
Tom Temin: Right. So you’d have to take each case, there’s no blanket ruling on what you’re likely to get.
Henry Kerner: Exactly right.
Tom Temin: Because we’ve seen in the military, the instances of religious exemptions have been almost zero, maybe one or two, literally, across all of the military challenges. But we don’t know yet in the civil side, how that might turn out then?
Henry Kerner: Correct. We don’t know whether the religious challenges are going to be upheld. We also don’t know about some constitutional or other challenges. So we’ll just have to wait and see. And yes, we do take each case on a case-by-case basis.
Tom Temin: Right. Are you prepared for an onslaught should that happen?
Henry Kerner: Well, you know, OSC stands ready to support the federal workforce. So absolutely.
Tom Temin: Any special preparations you’ve got for this?
Henry Kerner: Well, as I think I’ve mentioned to you the last time we chatted, we have a COVID task force, which has been largely impaneled to support individual federal employees on health issues. That’s how it really began; to sort of save their health. But if we need to look into these issues where we stand ready to help, absolutely.
Tom Temin: And I wanted to ask you how the Office of Special Counsel itself did during the pandemic, during your period of telework. And also, you know, what the caseload looked like, the nature of it, the size of it, the qualities are of the cases that you are getting. First of all, the office itself, it’s not a huge office. Review for us, how many and how many were, still are, teleworking and how you’re functioning?
Henry Kerner: Sure. So obviously, the pandemic was difficult for us, like for everybody else in this country. We’re certainly no different in that regard. We have done very, very well. I’m incredibly proud of the performance of my employees. I think we approached the pandemic with a lot of foresight. We were one of the very first agencies, on March 16 of 2020, to shut down completely and go to permanent precautionary telework. We have a really tremendous IT department that was able to set everyone up with the computers and get us up on teams. And so the safety and health and safety of all the employees, that obviously was my top priority. So I think we’re really successful in transitioning to full-time telework. As I indicated, we set up at COVID taskforce to support the federal workforce, specifically people who may not be trained as medical professionals who are asked to do medical, you know, intake on COVID, but didn’t have the right equipment. So we really tried to intercede with what we called” quick course corrections” and really save their health and life potentially, but the performance has been just great. I mean, the bottom line is we’ve had our two best years in terms of what we call favorable actions. So those are corrective actions or interest in receiving on behalf of federal employees. In fy’20, we had 405 And fy’21 with 393. Those are the two highest numbers we’ve had in recent memory. Now, I will say obviously, there has been a slight diminution of cases, as you might imagine, as people are not in offices, they’re not seeing as much, you know, misconduct. So there are fewer cases. But the flip side is t has allowed us to get through about 1000 cases of our backlog. So we’ve made a lot of progress getting through some of the older cases that have been sitting there over the pandemic.
Tom Temin: Yeah, interesting. It’s kind of an interesting phenomenon that the caseload would go down. Because if someone say, is discriminatory in some manner, or they just are nasty to someone, because they don’t like them, that being remote doesn’t necessarily preclude that type of thing from happening. But I wonder if you sense that there’s some phenomenon of people together, that makes it worse, exacerbates the issue of people mistreating one another, supervisors mistreating employees?
Henry Kerner: Absolutely, I just, I think when people are together, there’s more misconduct that’s going to be observed. Whether it be on the disclosure fronts, or systemic issues of fly infestation in the operating room. Well, if the operating room is not being used, or if no one’s there to see it, you’re not going to know there is a fly infestation. So we’ve had a lot fewer of those cases. And then I do agree with you, I think as people are less together and more isolated, I think there’s a diminution in misconduct allegations. We’ve certainly seen that.
Tom Temin: We’re speaking with Henry Kerner, the special counsel in the Office of Special Counsel. And so, what’s the most common type of misconduct that tends to come through?
Henry Kerner: Well, I mean, obviously, we’ve cared the most about retaliation cases, right? So somebody complains about something, and then their boss doesn’t appreciate that they complained, and then they get retaliated against. And retaliation can take various forms. I mean, in the most obvious form, it’s a firing or a suspension. But there’s other forms, we take your duties away, we stick you in the you know, the broom closet, we take away your, your red stapler, you know, all those things that we’ve seen. So you can take any of those forms. And then or we give you a bad review or something like that. So we see a lot of those kinds of misconduct that we deal with.
TomTemin: Yeah, that’s what’s surprising, because you could still do that with someone remotely, you know, not invite them to the teams or Zoom meetings anymore. That’s the, I guess, the online equivalent of being in the broom closet or the basement. But you are nevertheless seeing it go down.
Henry Kerner: Our cases have definitely gone down. We have from fiscal year ’16 through ’18, we averaged about 6000 cases. And then the ’19, right before the pandemic, went down to about 5500. And through the pandemic, it’s gone down to 4500 and now 3500. Now, I do want to add, we do expect that number to increase, in part from what we just talked about, the fifth circuit case and the invitation to file with us, which I think a lot of federal workers will avail themselves off. So we do expect some COVID and vaccination cases. But we also think there’s going to be increased cases as we now have a slow gradual return to the workplace.
Tom Temin: Right. So there’s human interaction is an issue, then that seems to result in more cases.
Henry Kerner: It seems to be that way. That’s certainly been my experience in our cases. Absolutely.
Tom Temin: And with, you know, whistleblowers, I guess the potential there is for that to take place because of a lack say of protocols, because people have different sensitivities to what they think should happen during COVID. And if they think the agency isn’t doing everything that should that could give rise to whistleblowing-type of cases.
Henry Kerner: There have been a number of cases, protective gear, masks, masks have been a huge issue right? Who wears it who has to where it. We’ve had a number of complaints of people not enforcing mask mandates or not wearing it properly. So you know, people have different assessments of risk. And once you bring that into the workplace, they’re going to clash. Look at airlines. Airlines have had a huge uptick in complaints of passengers fighting with one another and with the crew. And that’s clearly just going to happen because people just view those requirements very differently.
Tom Temin: And getting back to OSC itself. Are you back in the office? What’s the status with respect to office location?
Henry Kerner: Right, so we do a hybrid. OSC is primarily, we’re a small agency, we have a primary workstation headquarters in DC, we also have some field offices. The DC office is on a hybrid. So we’re on a, what I call it three, two or two, three. So we’re in two to three days depending on the agency’s basically in three days. And then the employees can pick two of those, including one mandatory day, and then two days are still remote.
Tom Temin: And that happened without a lot of fuss?
Henry Kerner: No fuss at all.
Tom Temin: Henry Kerner is special counsel in the Office of Special Counsel.