The backlog of whistleblower and prohibited personnel practices cases at the U.S. Office of Special Counsel nearly doubled between 2011 and 2016, despite sustained efforts to tackle it, according to a Government Accountability Office report released July 16.
“A sustained backlog puts OSC’s ability to fulfill its mission of protecting federal employees at risk. As OSC noted in its fiscal year 2017 Performance and Accountability Report, a longer backlog risks further delay for processing newly received cases. Further, lengthy processing times delays attaining desired favorable actions and remedying wrongdoings. Without timely resolutions, whistleblowers may be discouraged from filing whistleblower disclosures,” the report said.
A GAO investigation found that though the OSC took steps to expand the number of employees reviewing cases and establish a new unit to process hybrid cases that involve both a whistleblower disclosure and an allegation of retaliation, the increase in cases received since 2011 has caused the backlog to increase as well.
Newly signed legislation allows federal employees to officially appeal their whistleblower cases beyond the standard Federal Circuit Court of Appeals.
According to the report, the number of whistleblower and PPP cases received by the OSC increased by 66 percent during the five-year period.
“OSC and agency officials believe that the passage of the Whistleblower Protection Enhancement Act of 2012 likely contributed to the increase. The act amended federal personnel law to, among other things, clarify the breadth of disclosures that are afforded protection, expand the right to bring reprisal claims for certain protected activities, and enhance the remedies available to federal whistleblowers who have suffered retaliation,” the report said.
In addition, the OSC conducted educational outreach events in 2015 and 2016 that likely contributed to the increase in cases.
The office also had to deal with incorrect filings in which federal employees mistakenly filed PPP cases — which involve issues of discrimination, nepotism, coercive behavior and 11 other behaviors — as whistleblower cases.
Currently, the two kinds of filings require two different forms, and OSC officials were often forced to review the incorrectly filed case, close it as a whistleblower case and notify staff at the Complaints Examining Unit to reopen it as a PPP case. According to the report, the OSC is currently working on a form that would be used for both kinds of cases to prevent this kind of mistaken filing.
The time to process those filings has also increased, with whistleblower disclosures taking an average of 29 days, nearly three times as long as they did in 2011, and PPP filings taking 97 days, over two weeks longer than in 2011.
Part of the problem, according to the report, is that in whistleblower disclosure cases that OSC referred to agencies for investigation, agencies were allowed to request additional time on top of their typical 60-day response window, which the OSC almost always approved. And OSC often approved multiple extensions per case.
“The median number of days between when the referral letter was sent to the agency and when the initial agency response was received by OSC was 169 days, and 33.8 percent (23 of 68) took more than 200 days,” the report said. “OSC has discretion in approving these requests, however, and whistleblower advocacy representatives told us that OSC could use its case closure letters to the president and Congress to apply pressure on agencies to respond more timely to allegations. OSC officials told us that their preference is to give agencies the needed time to complete investigations.”
OSC also does not properly communicate these processing times to whistleblowers, according to the report.
“As whistleblower representatives noted, whistleblowers may be subject to retaliatory work environments during these extended processing times. In some instances, whistleblowers may have changed positions, left the agency, or otherwise given up on a remedy, which presents uncertainty for all involved,” the report said.
“Similarly, agency liaisons noted that officials who are the subject of allegations may have also changed positions during the interim, which limits the corrective or disciplinary actions an agency can take. By not providing sufficient transparency on realistic time frames for the referral and agency referral response process, OSC risks and limits whistleblowers’ ability to adequately plan for the whistleblower disclosure case process and have a better understanding of the potential timeline for case closure.”
The GAO investigation also found that the OSC had inadequate processes for when its own employees wish to file PPP or whistleblower cases.
GAO made seven recommendations for the OSC to review case extensions, communicate processing times with whistleblowers, develop procedures for the Complaints Examining Unit, improve training programs for new employees, improve case file tracking, finalize a timeframe for creating an independent process for internal OSC filings and better communicate with employees the process for those filings.
The OSC agreed with all seven recommendations.