The nation’s ‘Mr. Whistleblower’ is nominated to a new a referee slot

Luckily, most federal employees do not have contact with the Office of Special Counsel (OSC), which deals with, among other things, bad treatment by supervisors, whistleblower retaliation, and mistreated veterans. But when you need the OSC, you can have a powerful ally, which has been led for six years by Henry Kerner, who will be moving on soon, as his term up expires. Federal Drive with Tom Temin talked to Kerner about his OSC service and how he was recently nominated by President Biden to serve on the Merit Systems Protection Board. Kerner joined Temin in studio for this extended Exit Interview, or sorts.

Interview Transcript:  

Tom Temin And I guess congratulations on a great tenure. And you are a one year holdover at this point.

Henry Kerner Yes. My five year term expired last year, and I’m in the one year holdover, which will end on October 22nd. And by statute, that ends my service at OSC.

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Tom Temin And I’ve always had the sense you are just optimistic about federal process, about the ultimate efficacy of the federal employment system, even though you deal with where it goes wrong 100% of the time.

Henry Kerner Absolutely, Tom. We really try to help people, obviously, when they have issues in their workplace. I think it’s incredibly important to support whistleblowers. We do do that. And I’ve been incredibly proud of the effort that we’ve put in for the last six years.

Tom Temin And you recently had kind of a retrospective review with the OSC staff. And what were some of the fine points that you went over?

Henry Kerner We went to a conference called FDR. It takes place in Orlando. There were a number of OSC people there, and we did a little bit of a retrospective. It’s called a discussion with the agency heads. They have various ones. And I did one where we went through the last six years and talked about what we’ve achieved.

Tom Temin And what have you achieved.

Henry Kerner I think the biggest takeaway is that hopefully we have created an efficient and customer service oriented agency that allows federal workers a safe place to go and file complaints and report wrongdoing in the federal government.

Tom Temin Yeah, that’s a good point, because the operational efficiency of these types of adjudicatory bodies, let’s say, can be a problem because backlogs come in, right? Sometimes even where you’re headed, the Merit Systems Protection Board for a variety of reasons and not necessarily those of the board. There are build ups of backlogs. You know, when there was no board for two years or Veterans Affairs, whatever. Lots of agencies do adjudication of cases and case loads built in. And so justice delayed sometimes justice never actually delivered. And so the efficacy of the organization is really important, isn’t it?

Henry Kerner Absolutely. And as you say, sometimes backlogs build up for various reasons. And in MSPB’s case, they didn’t have a board at all for three years, I think. They had one board member even for the year, year and a half before then. So there was nothing they could do. That’s just how it’s going to be. Sometimes DAR lags in terms of how cases are processed. I think a little bit in OSC’s case dealt with these lags where we had some internal inefficiencies. So one of the very first things I did is I established an efficiency and effectiveness working group and they made recommendations. We then folded some units into one and we eliminated a lot of those lags. And one of the things I’m incredibly proud of is if someone files with us, they get a response, usually within two days, within two days to have someone assigned, someone reaches out to them, down from about 18 days in the past. And that continues for the case because most cases remain with the same, usually lawyer for the duration.

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Tom Temin All right. And talk about the nature of the types of cases. Of all the cases that come through and get processed, roughly what is prohibited personnel practices versus whistleblower retaliation, which I guess is a subset of prohibited personnel practices, and then also the veterans USERRA law claims and so on.

Henry Kerner Right. So we have four big units. One is the Hatch Act. So the Hatch Act obviously tries to ensure a depoliticized workforce. Our Hatch Act unit is incredibly effective in providing advisory opinions and letting the federal workforce know what’s allowed. We’re also available for questions and we have a Hatch Act hotline where people can call. So that’s Hatch Act and way of USERRA that you just mentioned. We had a very prominent USERRA case recently that was decided I’m very proud of. We had a veteran who joined the war on terror and he was a postal employee in the try to get his job back and the Postal Service wouldn’t give him his job back. So we actually represented him one at the AJ level. But then his case sat during the appeals process because, as we just said, there was no board members. However, he just recently won that case as well. And now the Postal Service has been ordered to take him back and give him back pay.

Tom Temin We’re speaking with Henry Kerner. He’s the outgoing special counsel at the Office of Special Counsel. And that’s an egregious case. Yes. And I read some of the MSPB cases, and recently someone at Homeland Security got ten years of backpay that took ten years to adjudicate a case, and they got their job back. Right. What stands out in your mind looking back over the cases you’ve overseen. That wow, how in the heck could this have gotten so far?

Henry Kerner Well, it’s really unfortunate that case I just mentioned, there was interim relief ordered many years earlier. And so obviously, if that interim relief had been granted, the postal employee would have been reinstated. But the postal service didn’t do it. And so the enforcement can be a challenge because obviously there are appellate rights now that we have a fully functioning board. We can get that adjudicated in a timely manner. But at the time, without a board, you can’t do that, which once again speaks about how important it is to get. Like you said, justice delayed is justice denied to make sure that there is a timeliness factor to these cases and resolving them.

Tom Temin One of the great firings of business history was when Lee Iacocca was let go by Henry Ford, the second. This was. You have to go back a few years. But it was famous. It was made all the headlines. And one of the things that Henry Ford, the second, commented afterwards to people around him, and it was recorded. He said, sometimes you just don’t like someone, you know. He just didn’t like Lee Iacocca. He could get away with that. That’s not sufficient basis for firing in the federal setting or most corporate settings anymore, for that matter. And do you find that most federal managers are pretty good at managing? I mean, given that let me put it this way, the number of cases that OSC has handled relative to the size of the federal bureaucracy, I think in some ways speaks well of the federal bureaucracy.

Henry Kerner So that’s an interesting point. I think we do a lot of training. I think there’s a lot of awareness. You know, we have a merit system. The merit system is supposed to evaluate people on the basis of merit, on the basis of qualifications and talents and skill and not on extraneous factors. We have seen an uptick in cases now that COVID is largely in the rearview mirror. Our cases are going back up, I think, as people are returning to the office, even if it’s in a hybrid way, there is a lot more opportunity to see misconduct, of course, also be retaliated against. So we have seen an uptick after a lull for about 2 to 3 years.

Tom Temin And with the whistle blower end of things, that is always controversial. You know, one person’s whistle blower is another person’s disgruntled, terrible person. And why are you bringing all of this up? And we’ve seen in recent years whistleblowers whose case or whose cause is anathema to those of a certain political party. And it runs both ways, like crossed swords. And do you ever wish that the politicians would kind of stay out of it and just look at the merits of what it is people are blowing the whistle about?

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Henry Kerner Yes, I think protecting whistleblowers is a bipartisan undertaking and it’s important for the government to function, obviously, when whistleblowers come forward. Not everyone has a case. OSC closes a number of cases. We do an independent and very fair assessment. And so so everyone has a chance to be heard. And that’s really important. And I think there needs to be a recognition that it’s not a political enterprise. It’s outside of the political system. There’s waste, fraud and abuse in the government. And you have to encourage people to want to tell you about that. And the best way to encourage them is two ways. One, make sure that they’re heard and make sure that you do something about it once they tell you. And the second way is make sure they’re protected, because if you retaliate against them and ruin their careers, they’re not going to come forward. They’re just not going to tell you anything. And so we all benefit when whistleblowers feel empowered to come forward and to report wrongdoing.

Tom Temin And I want to comment, too, on the OSC press operation, because two of your people are sitting here in studio with us listening in on the air. Good to have them in. And we get lots of federal press releases. We look for them because sometimes there’s a nugget of real news. There are agencies, departments that decided that every other day they’re going to talk about how the administration and their secretary put the moon in the sky. And the next day they ordered to the stars and the day after that, by golly, you know, human relations are improving worldwide because of this work. You know what I’m getting at?

Henry Kerner Yes.

Tom Temin Your releases are pretty impressive. They’re not every case comes out with a press release. But when they do, I find that they are instructive. You put out releases to the public on cases where you could learn something from this. It’s not just a usual. Well, I hate you. Your desk is in the basement type of case. And so let me comment on the public facing outreach to the general audience from OSC, because I think a lot of agencies could learn from that.

Henry Kerner I appreciate you saying that. Our communications shop is led by our director, Zack.

Tom Temin Zack’s right here. He’s waiving.

Henry Kerner And Zack does a terrific job. Obviously, we try to decide, you know, we try to make the press releases as as user friendly as we can. We also decide which things to highlight. But I do think there’s an important function of teaching the federal workforce. So when we have a case I just mentioned the USERRA case, where someone was clearly denied their rights. It’s important to let people know because we want to avoid and prevent the next problem. And so by it, this is educational. The Hatch Act, it’s great too. We have one of the Hatch Act members here as well, She of the Hatch Act unit. It’s really important to let the federal workforce know when we have certain cases so they realize what is a violation, what is and and they can learn from that, too. And like I said, it’s a preventative. You can prevent a lot of problems by highlighting issues you’ve seen in the past.

Tom Temin And Hatch Act, of course, goes back, I think, to the 1930s. And you know, elections are elections and people get pretty passionate about one side or the other. In my history of watching these things, I would say elections are getting to the point now where you can’t have Thanksgiving Day tables. Politics are verboten across the country. It’s getting to be like some kind of a South American thing, you know, with respect to people’s political positions, one side or the other. What has been the trend and Hatch Act in the six years you’ve seen more cases and more egregious cases?

Henry Kerner I think the trend we’ve mostly seen is we’ve gotten a lot of complaints and a lot of awareness. And so because the Hatch Act has gotten some attention, a lot of attention, in fact, recently, people know about it. People use it. Sometimes people use it mistakenly. So, for example, just during the election seasons, the Hatch Act advisory opinion shoot up. I think we did over 1400 just two years ago and even in non-election years, that’s another thing. It used to be in the Hatch Act world, if you had an election year, everything would ratchet up and then in the year or two after get very quiet. That’s really no longer the case. You have Hatch Act advisories and you have Hatch Act issues bubbling up at all times. So it’s now a, you know, sort of all year, every year or whether it’s an off year or an election year, it doesn’t matter as much. And in terms of the cases, because you have all this awareness and because you have it in the forefront of a lot of people’s minds, you really do need to do an extra good job of educating people, telling them what’s allowed, what’s not. You said the laws from 1939, which it is. Well, how do we apply to Twitter? How do we apply it to today’s social media? Today’s all the stuff that’s happening today. And so it’s really important to let people know how our unit views those kind of trends.

Tom Temin Yes, that’s a good point, because at one time you could maybe, you know, have a baking sail for, you know, the Eisenhower administration and then go to work and no one would know the difference. And you were straightforward and doing your federal job. Nowadays, with all the social media jazz, it all blends together and people can see what you’re doing regardless. That is a complicating factor in all of this.

Henry Kerner Yeah, that’s a great point. And also, don’t forget you have a phone on you and a lot of people work hybrid schedules, so they’re at home. So now you’re working, So you’re on work time, but you’re home. You also have your phone and your computer and all that. So the the blending of the official and the personal function has been dramatic. And so that’s why it’s so important for people to seek out advice, to check what their DAOs. They have ethics officials, and to really make sure that they stay on the right side of this law, because Hatch Act can have significant consequences.

Tom Temin You can lose a job over a Hatch Act violation.

Henry Kerner Absolutely. So that’s just something to be aware of that it really can have significant consequences. So we want to make sure that we’re as helpful to people and let them know how to abide by it.

Tom Temin And getting back to OSC as just a small federal agency. Your six years had something in the middle called the pandemic.

Henry Kerner Right. Right.

Tom Temin And how did that affect things and how is it getting back to normal for you from the small agency, small independent agency perspective?

Henry Kerner Yeah. Not only are we small, we’re also independent. So, you know, a lot of times you’re kind of part of a greater organism. We’re independent, so we have to make our own decisions. And the most important thing we did is we shut down. We shut down the entire agency on March 16th of 2020. We’re one of the first to make that decision. We were completely remote.

Tom Temin Shut down the office, not the agency.

Henry Kerner Oh, sorry, Sorry. Yes, shut down the office in terms of going to the office. So we went completely remote. That was a challenge for our I.T. Because while we had some remote capabilities, it wasn’t set up for it. We had computers that would melt because they weren’t used to being used that much because we all of course are different computers at the office. And so we really had to have the I.T. people make sure that we were able to function. And we did. And of course, one of my goals as the agency head was I need to keep my people alive, Right? I mean, this is a scary disease. I don’t know what it’s going to do. We made the decision to go remote, but now what? And so we were really scared. We also had a COVID task force for the federal workforce where we tried to intervene. We called them course corrections early on to to save lives, too, because people were being pulled in to do COVID check in. Who weren’t trained to do that. There were landscapers and other people in other jobs, but they got pulled in to do that because, of course, everyone was panicked, but they didn’t have the proper equipment, protective equipment. So we would call in and make sure that people like that were protected and so they would have, you know, protect their health. So just all these different factors that come in and of course, it affects your ability to do your job in the first place because you no longer have in-person meetings. You’re not used to your normal routine. You had to create a completely new routine. And I’m very proud of the work of my colleagues at OSC. Both from the support staff, from the IT perspective. We had the equipment necessary and then we had terrific outcomes. The COVID task force had over 800 cases that really saved lives. We also had a whole number of other of what we call favorable outcomes, you know, where people got a good corrective action. We had record numbers the last couple of years up to 417 last year, which is the highest number ever in the agency’s history. And that’s why most of our employees were still working from home. You asked about how it’s been since we’ve tried to reintegrate to some extent. So we have a hybrid work environment where two days in the office is mandatory and then the rest is from home. The numbers are still very good. People are still very efficient, but we also now have more of the collegiality. And so these serendipitous meetings where people can talk to each other and also get to know each other, some people. So people have worked together for three or four years. They’ve never met. So that’s now changing.

Tom Temin Right. I was going to say, it sounds like you’re not overly exorcized about the great question of the day, back in the office or not back in the office. And there’s all sorts of pull and push and tug of war going on among the federal unions and the White House. And federal managers kind of seem caught in the middle here. Well, White House wants them back. A lot of members of Congress want them back. The unions say, well, why? You know, because everything’s working pretty well and so on. Sounds like you’re not getting exorcized over that. Two days, people are meeting each other. It works. Leave it alone.

Henry Kerner I mean, we made a decision. So I’m not exorcised because I made the decision and I feel good about it. I think some people, I’m sure, would prefer not to come in. And I get that some people moved far away, that they live far away. They have an hour and a half commutes. So I’m sympathetic to that. I think we have the right balance. I think either two, three or three two is sort of at the center where this works. It gives people the flexibility to have some time at home. They’ve kind of gotten a little bit used to where they have some It’s a catch up time, too. When I’m in the office. I have meetings all day, I’m busy all day. I’m meeting people all day. On Thursday and Friday when I’m not in the office, I catch up, I read emails, I can read a document, I can think about it. So it actually works really well in terms of those two functions. I think it works for to see. Obviously, I’m leaving next month, so we’ll see what happens after my departure, but I hope we’ve set a pretty good marker where that will continue.

Tom Temin Now, just presuming you are confirmed for the MSPB. The MSPB is different from the Office of Special Counsel, but there’s some confluence there. You’re in the same general area of looking at what happens to federal employees. What is your expectation for MSPB in terms of relations with OSC, and do you share case law from time to time, the two agencies. Just because, again, you don’t do the precisely same thing, right. But they seem pretty closely aligned.

Henry Kerner Yeah. So as you say, I was nominated and I appreciate President Biden nominating me. And thank you also to the Republican leadership Leader McConnell, specifically for having confidence in me. So I’ve been nominated at this point. I’m just beginning my Senate confirmation process, so I am not going to comment on my own MSPB outside of my special counsel duties.

Tom Temin Correct.

Henry Kerner From the special counsel’s point of view, having a fully functioning MSP is incredibly important because there’s a couple of things we do that are essential. One is we get stays formal stays from the MSPB. Which means of an employee. We evaluate their case, they file with us. We think there’s a lot of merit to it. They may have been retaliated against. We can get a formal stay from the MSPB that keeps them in their job. So they’re not unemployed. They’re not. Obviously there’s a great disparity in wealth and income and resources. And so we want to protect that as best we can. That we don’t seek in every case. Obviously, we do do a very important check and a culling of sort of the facts. So that’s the first thing we do with MSPB. And the second thing, of course, is to adjudicate our cases. We can bring cases that we bring Hatch cases there, we can bring retaliation cases there for corrective action, for disciplinary action. And as the MSPB has come back, we have started to do that. So we have a more robust litigation function. We really appreciate having a robust and working and dedicated and diligent MSPB.

Tom Temin Now, in Washington, there are probably a couple of dozen law firms that have a specialty practice in federal employment and so on. It seems like you could walk into a partnership at any one of them. Why go to the MSPB after six years of distinguished service at the Merit Systems Protection Board? What keeps you going here?

Henry Kerner I’ve really enjoyed my my stay at OSC. I’ve appreciated the dedication to the mission from my colleagues. It’s an incredibly positive place to work. I love going to work. I love seeing my colleagues. Obviously, we’ve had challenges COVID, first and foremost. We’ve had other ones. We had a 35 day government shutdown. Our independence was a little bit in doubt.

Tom Temin May not be the last one yet.

Henry Kerner Let’s hope not. But it’s really important to for the function of ours to be able to continue. So I’ve loved the job. I think if I’m fortunate enough to be confirmed by the Senate, I think the next step into the Merit Systems Protection Board is just the logical step that keeps me in this community that I love.

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