New special counsel dedicated to decreasing whistleblower retaliation caseload


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Whistleblowers may have a new secret weapon courtesy of the Office of Special Counsel (OSC).

According to legislation, it is against the law for an agency or office to take action against an employee who reports safety concerns or other protected activity. However,  sometimes retaliation still occurs (outlined in the OSC prohibited personnel practices) and that’s where the agency has stepped in.

One major concern of the agency is the waiting time for cases to be resolved.

“A key concern that I’ve learned during the confirmation process when I was talking to some whistleblower advocacy groups was that whistleblowers really need a faster resolution of their cases,” Henry Kerner, former prosecutor and recently appointed special counsel, said on Federal Drive with Tom Temin. “We want to focus on helping federal employees across the government understand [their] role.”

To combat the length of time issue, Kerner said he has helped to set up an efficiency and effectiveness group that will work together to propose quicker and improved communication with whistleblowers. He said this will hopefully shorten the time it takes for a case to be decided.

“[Whistleblowers] really deserve the best service we can possibly offer … to try to resolve cases faster whenever possible without, of course, compromising any of the substance,” Kerner said.

The cases are tracked by various data points, including agency and statute.  About a third of the caseload so far has come from the Veterans Affairs Department, Kerner said. The Homeland Security Department (DHS) also has a large load of open cases.

“Obviously, the big agencies are going to have more cases, but I’m sure some of the smaller ones don’t come up as often. But I haven’t really been able to, you know, assess that carefully yet,” he said.

The job the OSC performs was also influenced by a new legislation, nicknamed Kirkpatrick’s law. The law, Dr. Chris Kirkpatrick Whistleblower Protection Act of 2017, enhanced protections for federal employees considered whistleblowers and reformed statutes to ensure those who retaliate against their employees are held accountable. The law also gave the OSC more access to information to help expedite the investigation process.

“It shows the commitment by Congress to really protect whistleblowers,” Kerner said. “There is a mandatory discipline portion of it. There’s also a training portion that’s now required regarding how to respond to complaints alleging a violation of whistleblower protection.”

While it  may seem natural, but not necessarily legal, to remove an employee shining the light on an agency’s faults, Kerner said training supervisors to see the importance of the whistleblower is the key.

“In reality, it’s actually to your benefit because most agencies are huge,” he said. “There’s no way that a manager on the top of an agency can possibly know about the waste, fraud and abuse that’s going on. So whistleblowers are really the way that you find that thing out.”

Before being appointed to OSC by President Donald Trump, Kerner worked on the House Committee on Oversight and Government Reform under Reps. Darrell Issa (R-Calif.) and Jason Chaffetz (R-Utah) and then on the staff of Sen. John McCain (R-Ariz.) on the Senate Homeland Security Subcommittee on Investigations.

He said his previous experience has helped him tremendously in his current role.

“I learned a lot,” Kerner said. “One thing you really appreciate is … the value of whistleblowers because how [else] do you get the information? How do you learn of misconduct? You learn not from the folks that give you the sort of standard briefings of what the agency knows … but from the folks who are really on the inside.”

The information from employees who put their lives and jobs on the line to disclose an agency or organization’s waste and abuse is more valuable and shows how taxpayer money is being spent incorrectly, he said.

“I mean, we’re all here trying to improve the government for everybody, for all taxpayers,” Kerner said. “So on the whole, that was something I really learned early on … just the value of having people provide that information and the courage by which they do that.”