U.S. Office of Special Counsel: Strategy for Reducing Persistent
Backlog of Cases Should Be Provided to Congress (08-MAR-04,
GAO-04-36).
The U.S. Office of Special Counsel has not been consistently
processing cases within statutory time limits, creating backlogs.
Because the backlogs are of concern to the Congress, this report
provides information on how many cases were processed within
statutory time limits, the actions taken by OSC to address case
processing delays and backlog, and the agency's perspective on
the adequacy of its resources and our analysis of this
perspective.
-------------------------Indexing Terms-------------------------
REPORTNUM: GAO-04-36
ACCNO: A09427
TITLE: U.S. Office of Special Counsel: Strategy for Reducing
Persistent Backlog of Cases Should Be Provided to Congress
DATE: 03/08/2004
SUBJECT: Agency proceedings
Federal employees
Personnel management
Statutory limitation
Strategic planning
Whistleblowers
Schedule slippages
Prohibited personnel practices
Timeliness
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GAO-04-36
United States General Accounting Office
GAO
Report to Congressional Requesters
March 2004
U.S. OFFICE OF SPECIAL COUNSEL
Strategy for Reducing Persistent Backlog of Cases Should Be Provided to Congress
a
GAO-04-36
Highlights of GAO-04-36, a report to congressional requesters
The U.S. Office of Special Counsel has not been consistently processing
cases within statutory time limits, creating backlogs. Because the
backlogs are of concern to the Congress, this report provides information
on how many cases were processed within statutory time limits, the actions
taken by OSC to address case processing delays and backlog, and the
agency's perspective on the adequacy of its resources and our analysis of
this perspective.
GAO recommends that the Special Counsel provide Congress with a detailed
strategy designed to allow more consistent processing of cases within
statutory time limits and a reduction in the backlog of cases, for which
these limits have already passed.
March 2004
U.S. OFFICE OF SPECIAL COUNSEL
Strategy for Reducing Persistent Backlog of Cases Should Be Provided to Congress
The U.S. Office of Special Counsel (OSC) met the 240-day statutory time
limit for processing prohibited personnel practice cases about 77 percent
of the time from fiscal year 1997 through 2003 and met the 15-day limit
for processing whistleblower disclosure cases about 26 percent of the
time. OSC took an average of more than six months to process a
whistleblower disclosure case. As shown in the pie chart below, over the
seven-year period, 34 percent of the prohibited personnel practices cases
were backlogged as were 96 percent of the whistleblower disclosure cases.
In an attempt to address workload issues, in 2001 OSC streamlined
processes and hired additional staff. OSC data indicate that the merger of
the agency's investigators and attorneys into a single unit increased the
average number of cases processed per individual from June 2001 to June
2002. A case priority processing system for prohibited personnel practices
and whistleblower disclosure cases allowed OSC to process more important
cases more expeditiously, according to OSC.
OSC officials told us that the primary reason the agency has not been more
successful in meeting the statutory time limits for its cases,
particularly those involving whistleblower disclosure, is lack of an
adequate number of staff. Our analysis of OSC data indicates, however,
that even with increased staffing, the agency was not able to process a
significantly larger number of cases within the time limits. OSC noted
that staff turnover and the need to train new staff lowered its
productivity. Officials also noted the difficulty in meeting the 15-day
limit for processing whistleblower disclosure cases, but have not proposed
an alternative time limit. In external documents to Congress, OSC has
discussed its case processing and backlog difficulties, but has not
developed a comprehensive strategy for dealing with them. Presenting such
a strategy would provide Congress with information that it needs for
oversight and resource allocation.
Percent of Pending and Backlogged Cases, Fiscal Years 1997 through 2003
www.gao.gov/cgi-bin/getrpt?GAO-04-36.
To view the full product, including the scope
and methodology, click on the link above. aPending cases are those that
have not exceeded the statutory processing time limit.
For more information, contact George H.
Stalcup at (202) 512-9490 or bBacklogged cases are those that have
exceeded the statutory processing time limit.
[email protected].
Contents
Letter
Results In Brief
Background
Caseload Has Consisted Mainly of Prohibited Personnel Practices
Cases, and a Large Increase in Whistleblower Disclosure Cases Occurred
After September 11, 2001
While OSC Was Far More Successful in Meeting Time Limits For Processing
Prohibited Personnel Practices Cases than Whistleblower Disclosure Cases,
Backlogs of Both Types of Cases Persisted
Agency Data Indicate Attempts to Handle Caseload More Efficiently Have Had
Salutary Effects Agency Says Existing Resources Are Inadequate, But It Is
Not Clear
How Additional Resources Would Help Alleviate Backlogs Conclusion
Recommendation for Executive Action Agency Comments
1 2 4
9
11
15
18 24 24 25
Appendixes
Appendix I:
Appendix II: Appendix III: Appendix IV:
Appendix V:
OSC's Data Tracking System and Privacy Protection Policies
Data Tracking System Privacy Protection Policies
Scope and Methodology
Organization of the Office of Special Counsel
Comments from the Office of Special Counsel
GAO Contact and Staff Acknowledgments
GAO Contact Acknowledgments 26 26 28
30
32
34
36 36 36
Tables Table 1: Statutes That Govern OSC Authority 8
Table 2: Processing Times for Prohibited Personnel Practices
Cases, Fiscal Years 1997-2003 12
Table 3: Processing Times for Whistleblower Disclosure Cases,
Fiscal Years 1997-2003 12
Table 4: Prohibited Personnel Practices Case Inventories, Fiscal
Years 1997-2003 14
Contents
Table 5: Whistleblower Disclosure Case Inventories, Fiscal Years 1997-2003
15
Figures Figure 1: Prohibited Personnel Practices 5 Figure 2: Number of New
Cases by Case Type, Fiscal Years 1997 2003 10
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A
United States General Accounting Office Washington, D.C. 20548
March 8, 2004
The Honorable Tom Davis
Chairman, Committee on Government Reform
House of Representatives
The Honorable Dan Burton
House of Representatives
The U.S. Office of Special Counsel's (OSC) primary mission is to protect
federal employees from prohibited personnel practices. Individuals who
believe that a prohibited personnel practice, such as nepotism or
obstructing the right to compete for employment, has been committed may
file complaints with OSC. These individuals may also disclose to OSC
alleged wrongdoings by other federal employees (termed "whistleblower
disclosures"), such as violations of laws and "gross waste" of funds.1 In
addition, the agency oversees laws regulating the employment rights of
veterans and the political activities of individuals employed by the
federal
and District of Columbia governments as well as certain state and local
government employees employed in connection with programs financed by
federal funds.
Congress established time limits for OSC to take action on certain kinds
of
allegations that the agency receives. The law requires OSC to determine
within 240 days of receiving an allegation of a prohibited personnel
practice whether there are reasonable grounds to believe that it occurred
and 15 days to determine whether there is a substantial likelihood that
the
allegations in a whistleblower disclosure constitute wrongdoing. Cases
dealing with political activities of federal and other covered employees
and
reemployment rights of veterans do not have statutory case processing
limits.
This report responds to your request for information on (1) OSC's caseload
by type and changes to the caseload from fiscal years 1997 through 2003,
(2) the extent to which cases were processed within time limits set by law
during these years, (3) actions taken by OSC to address caseload issues,
and (4) the agency's perspective on the adequacy of its resources and our
analysis of that perspective. In addition, as requested, we are providing
1Reprisal for a whistleblower disclosure, however, is a prohibited
personnel practice.
information on OSC's data tracking system and its privacy protection
policies in appendix I.
In developing information about the type and number of complaints and the
case processing times, we reviewed data from OSC's data tracking system
(OSC 2000), OSC's Annual Reports to Congress, and other performance and
budget reports provided by agency officials for fiscal years 1997 through
2002. We assessed the reliability of case tracking data in OSC 2000 by
reviewing electronic queries of required data elements for obvious errors,
reviewing existing information about the data and the system that produced
them, and interviewing agency officials knowledgeable about the data. We
discovered discrepancies in the caseload data and brought these
discrepancies to the attention of agency officials, including the chief
information officer, who resolved the discrepancies. Based on our
assessment of OSC 2000 and the caseload data it generated, we determined
that the data for fiscal years 1997 through 2003 were sufficiently
reliable for the purposes of our report. Throughout this report, we refer
to "processed cases" to denote that OSC has made the determination
required within the statutory time limits for prohibited personnel
practices cases or whistleblower disclosure cases. We refer to "backlogged
cases" as those for which OSC has not made the determination within the
statutory time frame. We conducted our review in Washington, D.C., from
April 2002 to February 2004 in accordance with generally accepted
government auditing standards. Detailed information on our scope and
methodology appears in appendix II.
Results In Brief Three-quarters of OSC's total new cases from fiscal year
1997 through 2003 consisted of prohibited personnel practices cases.
Whistleblower disclosure cases represented approximately 18 percent of
total new cases. The remaining approximately 6 percent were cases
involving political activities of covered employees and reemployment
rights of veterans. The number of new prohibited personnel practices cases
ranged from a low of 1,301 in fiscal year 2001 to a high of 1,969 the
previous year-a fluctuation of 51 percent. Whistleblower disclosure cases
steadily increased from fiscal year 1997 through 2000 (by about 37
percent, from 311 cases to 427) then dropped somewhat (about 11 percent)
in fiscal year 2001, only to increase dramatically in fiscal years 2002 (
about 46 percent) and decrease slightly in 2003 ( about 4 percent). OSC
officials stated that the large increase was prompted, in part, by the
terrorist events of September 11, 2001, after which the agency received
more cases involving allegations of
substantial and specific dangers to public health and safety and national
security concerns.
OSC met the 240-day case processing statutory limit for about 77 percent
of prohibited personnel practices cases from fiscal year 1997 through 2003
and met the 15-day statutory limit for whistleblower disclosure cases
about 26 percent of the time. The inability to process in a timely manner
new prohibited personnel practices cases received each year meant that
over the 7-year period, the percentage of backlogged cases was between 29
percent and 44 percent. The percentage of whistleblower cases in backlog
was always extremely high-95 to 97 percent.
Although OSC cannot control the number of new cases filed, actions the
agency has taken to help it better manage its caseload have yielded some
benefits, according to agency data. For example, in June 2001, the
agency's divisions of investigators and attorneys merged into three
parallel investigation and prosecution divisions. Shortly thereafter, OSC
adopted many streamlined, pilot-tested investigative procedures,
particularly for less serious cases. According to OSC officials, during
the 3-1/2 years prior to the reorganization, the staffs of the separate
divisions processed an average of 5.3 cases annually per person. During
the first year after the merger of the divisions, productivity increased
to 7 cases processed per person. In November 2001, OSC adopted a priority
case processing system that classifies all its prohibited personnel
practices cases into one of three categories and further prioritizes cases
within each category. According to OSC, from January 1, 2002, through
September 30, 2002, priority cases were processed faster than non-priority
cases in all categories. Additionally, agency data show that resolution of
a small number of prohibited personnel practices cases by alternative
dispute resolution before the agency made the "reasonable grounds
determination" has reduced the backlog slightly. OSC officials also
indicated that the agency has been using a priority system for
whistleblower disclosure cases since 2002. Under this priority system,
disclosures involving substantial dangers to public health and safety-the
most serious type-are referred to the agency head for investigation faster
than those cases that do not involve public health and safety.
OSC claims that its existing resources are inadequate to consistently
process its cases within statutory time limits and reduce the backlog of
cases. While resources may be a factor, our analysis of the agency's
recent performance after hiring more staff raises questions about whether
gaining authority to hire more staff would produce desired results. For
example,
the agency was able to process about the same number of total cases in
fiscal year 2003 as it had in fiscal year 1999 (2133 vs. 2109), despite
having 16 percent more staff. Moreover, for both whistleblower disclosure
and prohibited personnel practices cases, if OSC had been able to process
as many cases during each of the fiscal years from 1997 through 2003 as it
did in its best year for each type of case, the backlog for both would
have been significantly lower by the end of fiscal 2003. OSC officials
cited several mitigating factors that they say limited the agency's
ability to process cases faster and reduce the backlog. First, OSC data
showed a high turnover in staff between 2000 and 2003 that deprived the
agency of institutional knowledge at a time when agency officials were
trying to train new staff. Second, officials pointed out that new staff
need training and time to develop experience before they can become full
contributors to case processing efforts. Officials also noted the
difficulty of meeting the 15-day limit for making the "substantial
likelihood" determination required in whistleblower disclosure cases.
However, OSC has not proposed an alternative time limit that officials
believe is more realistic. Moreover, despite having a priority system in
place that agency officials told us allows cases dealing with health and
safety to be processed faster than non health and safety cases, the agency
still faces mounting backlogs in whistleblower disclosure cases.
We believe that these factors highlight the need for OSC to develop a
comprehensive strategy that (1) defines human capital and other
limitations facing the agency, and (2) outlines the agency's plans for
overcoming these limitations to allow processing more cases within
statutory limits and reducing the backlog of cases. OSC officials agreed
with our recommendation to provide Congress with such a strategy and
indicated that the agency will work to implement the recommendation as
expeditiously as possible. They also provided technical and clarifying
comments, which we incorporated in the report, as appropriate.
Background OSC's primary role is to safeguard the merit system in federal
employment by protecting federal employees, former federal employees, and
applicants for federal employment from prohibited personnel practices as
shown:
Figure 1: Prohibited Personnel Practices
Federal employees, with authority to take, direct others to take,
recommmend or approve any personnel action, may not:
0M Discriminate for or against an employee or applicant based on race,
color, religion, sex, national origin, age, handicap, marital status, or
political affiliation;
0M Solicit or consider employment recommendations based on factors other
than personal knowledge or records of job related abilities or
characteristics;
0M Coerce the political activity of any person;
0M Deceive or willfully obstruct any person from competing for employment;
0M Influence any person to withdraw from competition for any position so
as to improve or injure the employment prospects of any other person;
0M Give an unauthorized preference or advantage to improve or injure the
prospects of any person for employment;
0M Engage in nepotism (that is, hire, promote, or advocate the hiring or
promotion of relatives);
0M Take or fail to take, or threaten to take or fail to take a personnel
action because of whistleblowing;
0M Take or fail to take, or threaten to take or fail to take a personnel
action because of the exercise of a protected activity, including a lawful
appeal, complaint, or grievance;
0M Discriminate based on personal conduct which does not adversely affect
the performance of the employee or other employees;
0M Knowingly take or fail to take a personnel action in violation of
veterans' preference laws; and
0M Take or fail to take a personnel action, which would violate any law,
rule or regulation implementing or directly concerning merit system
principles.
Source: 5 USC 2302(b).
OSC receives and independently investigates allegations of prohibited
personnel practices. Before completing its investigation and making its
determination about whether there are reasonable grounds for believing a
violation has occurred, OSC may refer the case to its alternative dispute
resolution (ADR) program. If OSC cannot process a case within the 240day
limit, the agency must get permission from the complainant to keep the
case open. If OSC finds reasonable grounds for believing that a violation
occurred, OSC can seek corrective action, disciplinary action, or both
through negotiation with the agency involved. If an agreement cannot be
reached, OSC can file a petition (for corrective action) or a complaint
(seeking disciplinary action) with the Merit Systems Protection Board
(MSPB).2 OSC functions as a case prosecutor before the MSPB.
OSC also receives whistleblower disclosure claims. As described by law,
these consist of violation of law, rule, or regulation; gross
mismanagement, gross waste of funds, abuse of authority, or a substantial
and specific danger to public health or safety. Unless disclosure of a
whistleblower's identity is necessary because of imminent danger to public
health or safety or imminent violation of criminal law, OSC maintains the
whistleblower's anonymity. (See app. I for more information on OSC's
privacy policies.) Unlike its actions with respect to prohibited personnel
practices, OSC does not independently investigate whistleblower disclosure
cases. Instead, OSC is required to determine within 15 days whether there
is a substantial likelihood the allegations constitute wrongdoing. If so,
OSC sends the information to the head of the agency where the individual
making the allegations works. The agency head must conduct an
investigation and submit a written report to OSC. OSC is responsible for
reviewing the agency's report to determine whether the findings appear to
be reasonable and whether the report contains all of the information
required by statute.
2MSPB is an independent, quasi-judicial agency in the executive branch
that serves as the guardian of federal merit systems.
Unless the agency has found evidence of a criminal violation, OSC provides
the whistleblower with a copy of the agency report for comment.3
OSC also investigates and prosecutes complaints about possible violations
of the Hatch Act, which regulates the political activities of federal
employees, District of Columbia employees, and certain state and local
government employees employed in connection with programs financed by
federal funds. OSC may seek corrective or disciplinary action in Hatch Act
cases before the MSPB. OSC also issues advisory opinions to persons
seeking advice about how certain kinds of political activity are treated
under the Hatch Act. In addition, OSC investigates and prosecutes
complaints under the Uniformed Services Employment and Reemployment Rights
Act (USERRA) of 1994, which covers the employment rights of individuals
serving in the uniformed military services.
During each fiscal year, OSC receives new cases that are added to open
cases from previous years, which equal the "total caseload inventory".
During the year, as OSC processes cases, the total caseload inventory
decreases. At the end of the fiscal year, the agency has an "ending
inventory", which consists of pending cases (those that have not reached
the applicable statutory limit for case processing) plus backlogged cases
(those for which the applicable statutory limit for case processing has
passed without the applicable determination being made). The ending
inventory for one fiscal year becomes the beginning inventory for the
following year.
3If there is no evidence found of a criminal violation, OSC transmits the
agency's report with its own comments and recommendations to the President
and the congressional committees with oversight responsibility for the
agency involved. OSC is required to place the report in a public file. The
whistleblower's comments are also sent to the President and congressional
oversight committees. Cases where there is evidence of a criminal
violation are referred by the agency to the Attorney General. In such
cases, the agency is also required to notify the Office of Personnel
Management and the Office of Management and Budget of the referral. The
report accompanying such cases does not become part of the public record.
OSC's authority comes from five federal statutes: the Civil Service Reform
Act of 1978,4 the Whistleblower Protection Act of 1989,5 the Hatch Act,6
Office of Special Counsel Reauthorization Act of 1994,7 and the Uniformed
Services Employment and Reemployment Rights Act of 1994, 8 as described in
table 1.
Table 1: Statutes That Govern OSC Authority
Statute Applicable Provisions
Civil Service Reform Act of 1978 OSC was created under the Reauthorization
Plan Number 2 of 1978. The Reform Act established OSC as a part of MSPB
and introduced statutory protection for whistleblowers.
Whistleblower Protection Act of 1989 The act strengthens protection for
whistleblowers and, thus, encourages whistleblowing. It also separated OSC
from MSPB, establishing OSC as an independent federal investigative and
prosecuting agency.
Office of Special Counsel The act gives OSC 240 days from the time it
receives a complaint involving a prohibited
Reauthorization Act of 1994 personnel practice to determine whether there
are reasonable grounds for believing that such a practice has been
committed. If OSC is unable to process cases within this time, the agency
is required to receive the complainant's consent to keep the case open.
The act also makes federal agencies explicitly responsible for informing
their employees of available rights and remedies under the Whistleblower
Protection Act and related laws, and directed that OSC play a consultant
role in the process.
Hatch Act The act limits the political activities of federal employees,
employees of the District of Columbia government and certain employees of
state and local governments who work in connection with programs, such as
public health, housing, urban renewal, and area redevelopment programs,
financed in whole or in part by federal loans or grants. The Hatch Act
Reform Amendments of 1993 (P.L. No. 103-94) allows most employees of the
federal government and District of Columbia government to take a more
active part in political management or in political campaigns, but their
activities are still restricted.
4P.L. 95-454.
5P.L. 101-12.
6The provisions commonly referred to as the Hatch Act, as applied to
federal and District of Columbia employees, are found under subchapter III
of chapter 73 of title 5. The Hatch Act provisions relating to certain
state and local employees are found under chapter 15 of title 5. OSC also
provides advisory opinions to persons seeking advice about political
activity. In fiscal year 2002, OSC received 213 Hatch Act violation
allegations and following initial investigation, fully investigated eight
allegations and filed four enforcement actions with MSPB. For that same
year, OSC issued over 3,200 Hatch Act advisory opinions.
7P.L. 103-424.
8P.L. 103-353.
(Continued From Previous Page)
Statute Applicable Provisions
Uniformed Services Employment and The act prohibits discrimination against
persons because of their service in the Armed Forces
Reemployment Rights Act of 1994 Reserve, the National Guard, or other
uniformed services. The act also protects the reemployment rights and
benefits of persons who were absent due to military service or training.
The act authorizes OSC to initiate an action on behalf of a federal
employee before the MSPB to enforce the act's provisions. OSC may appeal
an MSPB decision on behalf of the employee before the U. S. Court of
Appeals for the Federal Circuit.
Source: OSC.
OSC maintains its headquarters in Washington, D.C., and has field offices
in Dallas, Texas, and Oakland, California. A Special Counsel appointed by
the President and confirmed by the Senate for a five-year term heads the
agency. OSC is organized into five operating divisions and two
administrative support branches. Appendix III discusses OSC's
organizational structure for its operating divisions and explains how
those divisions process cases.
Caseload Has Consisted Mainly of Prohibited Personnel Practices Cases, and
a Large Increase in Whistleblower Disclosure Cases Occurred After
September 11, 2001
Seventy-five percent of OSC's new cases from fiscal year 1997 through 2003
consisted of prohibited personnel practices cases. Whistleblower
disclosure cases represented approximately 18 percent of total new cases.
The remaining approximately 6 percent were Hatch Act and USERRA cases.
As shown in figure 2, the number of new prohibited personnel practices
cases ranged from a low of 1,301 in fiscal year 2001 to a high of 1,969 in
fiscal year 2000-a fluctuation of 51 percent. In fiscal year 2001, the
number of new cases decreased sharply from the previous year. Excluding
fiscal year 2001, however, the number of new prohibited personnel
practices cases ranged from a low of 1,558 in fiscal year 2002 to a high
of 1,969 in fiscal year 2000 - a fluctuation of 26 percent. Whistleblower
disclosure cases steadily increased from fiscal year 1997 through 2000 (by
about 37 percent, from 311 to 427) then dropped somewhat (about 11
percent) in fiscal year 2001, only to increase dramatically in fiscal year
2002 (about 46 percent) and decrease slightly in fiscal year 2003 (about 4
percent).
Figure 2: Number of New Cases by Case Type, Fiscal Years 1997-2003 Number
of cases
1,969
2,000
1,800
1,600
1,400
1,200
1,000
800
600
400
200
0 1997 1998 1999 2000 2001 2002 2003 Fiscal year
Prohibited Personnel Practices cases
Hatch Act cases
Whistleblower Protection Act cases
Uniformed Services Employment and Reemployment Rights Act cases
OSC officials could not tell us with any certainty the reasons for the
year-toyear fluctuations in prohibited personnel practices cases. They
said increases may have resulted from outreach efforts by OSC to educate
federal employees and others about their rights and the agency's roles. As
for the steep decline in prohibited personnel practices cases in fiscal
year 2001, officials said it may have resulted from increased awareness by
federal managers about OSC's role and responsibilities, which may have led
managers to consult more with personnel specialists to avoid actions that
could have lead to a prohibited personnel practice.
OSC officials expressed more certainty about the reasons for the
fluctuation in whistleblower disclosure cases. Officials said the steady
increase in such cases from fiscal year 1997 through 2000 may have been
due to media coverage of several cases that brought attention to the
agency and its role in handling these cases. OSC officials stated that the
big jump
Source: OSC.
in whistleblower disclosure cases in fiscal year 2002 was prompted, in
part, by the terrorist events of September 11, 2001, after which the
agency received more cases involving allegations of substantial and
specific dangers to public health and safety and national security.
While OSC Was Far More Successful in Meeting Time Limits For Processing
Prohibited Personnel Practices Cases than Whistleblower Disclosure Cases,
Backlogs of Both Types of Cases Persisted
OSC met the 240-day case processing statutory limit for about 77 percent
of prohibited personnel practices cases from fiscal years 1997 through
2003 and met the 15-day statutory limit for whistleblower disclosure cases
about 26 percent of the time. For prohibited personnel practices cases,
the inability to process all new cases received each year in a timely
manner meant that the annual number of backlogged cases was never below 29
percent and was as high as 44 percent.9 The percentage of whistleblower
cases in backlog was always extremely high-95 to 97 percent.
OSC's Record in Meeting Statutory Time Limits for Processing Prohibited
Personnel Practices and Whistleblower Disclosure Cases Differed Greatly
From fiscal year 1997 through 2003, OSC processed about 77 percent of
prohibited personnel practices cases within the 240-day statutory limit.
As shown in table 2, the number of cases processed within the limit
decreased steadily from fiscal year 1998 through 2001 before increasing
substantially in fiscal years 2002 and 2003. The total number of cases
processed declined from fiscal year 1997 through 2000, and increased
slightly each ensuing year. Nevertheless, in fiscal years 2002 and 2003,
OSC's improvement in both areas was still not as good as it had been in
its best years-fiscal years 1998 and 1997, respectively. OSC did
dramatically reduce the average processing time of a case in fiscal year
2002 (to 187 days) and fiscal year 2003 (to 135 days)-the best of the
seven years.
9OSC may continue to investigate beyond the 240-day limit with the
complainant's permission.
Table 2: Processing Times for Prohibited Personnel Practices Cases, Fiscal
Years 1997-2003
Percent
Processed Processed Average processed
within 240 in over 240 Total days to within 240
Fiscal year days days processed process days
1997 1,499 604 2,103 194
1998 1,577 362 1,939 162
1999 1,395 300 1,695 167
2000 1,361 253 1,614 166
2001 945 680 1,625 242
2002 1,284 420 1,704 187
2003 1,471 261 1,732 135
Averagea 1,362 411 1773 179
Source: OSC.
aNumbers and percentages may not add due to rounding.
OSC's efforts to process whistleblower disclosures cases were not as
timely. From fiscal year 1997 through 2003, OSC met the 15-day statutory
time limit for processing whistleblower disclosure cases 26 percent of the
time. OSC's average time to process a whistleblower disclosure case was
more than six months for each of the seven years we examined.
Table 3: Processing Times for Whistleblower Disclosure Cases, Fiscal Years
19972003
Percent
Processed Processed Average processed
within 15 in over 15 Total days to within 15
Fiscal year days days processed process days
1997 73 209 282 193 26
1998 53 268 321 272 17
1999 71 343 414 253 17
2000 122 267 389 226 31
2001 97 243 340 267 29
2002 94 192 286 230 33
2003 111 290 401 264 28
Averagea 89 259 348 244 26
Source: OSC.
GAO-04-36 U.S. Office of Special
Page 12 Counsel
Note: Processing a case is defined as when OSC (a) determines that the
case has merit and refers it to the agency head, or (b) determines it
lacks jurisdiction over the employee or the agency; the disclosure does
not meet the substantial likelihood criterion that the alleged wrongdoing
occurred; the disclosure is minor in nature; or the information is second
hand or unsupported.
aNumbers and percentages may not add due to rounding.
Of the 2,433 whistleblower disclosure cases that OSC processed during
fiscal years 1997 through 2003, OSC found a "substantial likelihood" of
wrongdoing for 86, or approximately 4 percent, and referred these cases to
the head of the agency involved for investigation. In the remaining 96
percent of cases which were not referred to the agency head, OSC took no
further action for reasons such as (1) lack of jurisdiction,10 (2) lack of
sufficient information to make a substantial likelihood determination, (3)
the complainant's agency inspector general had already investigated the
disclosure, or (4) the disclosure was minor, withdrawn, or duplicative. In
addition, in cases where OSC concludes there is not a substantial
likelihood of wrongdoing, with the consent of the whistleblower, OSC may
transmit the information to the head of the agency where the complainant
works.
Congress has not established statutory limits for processing Hatch Act
enforcement or USERRA cases. In fiscal year 2003, average processing time
was 469 days for Hatch Act enforcement cases and 193 days for USERRA
cases. OSC has established a standard of 30 days for processing Hatch Act
advisory opinions. In fiscal year 2003, average time spent processing
opinions was 106 days.
OSC Has Backlog in Prohibited Personnel Practices and Whistleblower
Disclosure Cases
As shown in table 4, the percentage of prohibited personnel practices
cases in backlog fluctuated between 29 and 44 percent during the
seven-year period. In fiscal year 1999, the number of cases processed
declined by nearly 13 percent from the previous year. This decline,
coupled with a nearly identical increase (nearly 14 percent) in cases
received in fiscal year 2000, resulted in the large backlog of cases by
the end of that year. The number of cases received in fiscal year 2001
dropped substantially from the previous year. While the number of cases
processed in fiscal year 2001 was slightly higher than the previous year,
the number of cases in backlog by the end of fiscal year 2001 increased
from the previous year. The lower
10 In cases where OSC cannot act because the disclosure is from an
anonymous source, but believes an allegation may warrant investigation, it
may refer the allegation to the Inspector General's office for the agency
involved.
beginning inventory in fiscal year 2002, combined with a modest increase
in new cases and processed cases, resulted in an ending inventory that was
about 33 percent less than the ending inventory in fiscal year 1997.
However, an increase in the number of new cases in fiscal year 2003 and a
smaller increase in cases processed that year, led to an increase in
ending inventory, but a decrease in the part of that inventory consisting
of backlogged cases.
Table 4: Prohibited Personnel Practices Case Inventories, Fiscal Years 1997-2003
Percent
of
Cases Total Processed cases
Beginning Ending Pending Backlogged in
Fiscal inventory received caseload cases inventory casesa casesb backlog
year
1997 1,135 1,852 2,987 2,103 884 629 255 29
1998 884 1,730 2,614 1,939 675 435 240 36
1999 675 1,729 2,404 1,695 709 504 205 29
2000 709 1,969 2,678 1,614 1,064 756 308 29
2001 1,064 1,301 2,365 1,625 740 414 326 44
2002 740 1,558 2,298 1,704 594 362 232 39
2003 594 1,791 2,385 1,732 653 449 204 31
Averagec 829 1,704 2,533 1,773 760 507 253
Source: OSC.
aPending cases are those cases in the ending inventory that have not
exceeded 240 days.
bBacklogged cases are those cases in the ending inventory for which the
240-day processing limit has passed.
cNumbers and percentages may not add due to rounding.
Table 5 shows that over the seven-year period, whistleblower disclosure
cases in backlog averaged 96 percent. Total caseload increased by about 20
percent from fiscal year 1997 through 2001, then jumped an additional 34
percent in fiscal year 2002 and about 30 percent in fiscal year 2003. This
resulted in an ending inventory in fiscal year 2003 that was about 24
percent higher than the previous year and about 188 percent higher than in
fiscal year 1997, as well as an increase in backlogged cases that was
about 23 percent higher than in fiscal year 2002 and 192 percent higher
than in fiscal year 1997.
Table 5: Whistleblower Disclosure Case Inventories, Fiscal Years 1997-2003
Percent
of
Cases Total Processed cases
Beginning Ending Pending Backlogged in
Fiscal inventory received caseload cases inventory casesa casesb backlog
Year
1997 211 311 522 282 240 11 229 95
1998 240 330 570 321 249 8 241 97
1999 249 374 623 414 209 9 200 96
2000 209 427 636 389 247 11 236 96
2001 247 380 627 340 287 11 276 96
2002 287 555 842 286 556 14 542 97
2003 556 535 1,091 401 690 21 669 97
Averagec 286 416 702 348 354 12 342
Source: OSC. aPending cases are those cases in the ending inventory that
have not exceeded 15 days. bBacklogged cases are those in the ending
inventory for which the 15-day processing limit has passed. cNumbers and
percentages may not add due to rounding.
Agency Data Indicate Attempts to Handle Caseload More Efficiently Have Had
Salutary Effects
Although OSC cannot control the number of new cases filed, actions the
agency has taken to handle its caseload more efficiently have yielded some
benefits, according to agency data. These data show that the merger of the
agency's investigators and attorneys into three parallel investigative and
prosecutive units and the adoption of streamlined investigative procedures
increased productivity, while the adoption of a priority system for
processing prohibited personnel practices and whistleblower disclosure
cases allowed more important cases to be handled more expeditiously.
Agency data also show that referral of a small number of prohibited
personnel practices cases for ADR prior to determining a "reasonable
grounds" has reduced the backlog.
Merger of Investigative, In June 2001, OSC merged its investigators and
attorneys, who had been in Legal Divisions and two separate divisions,
into three parallel divisions in an attempt to (1) Adoption of Streamlined
foster a closer and more effective coordination of strategy between
attorneys and investigators, (2) produce a more efficient
case-handlingProcedures Increased procedure geared to helping the agency
process cases within existingProductivity statutory time limits, and (3)
target resources so that the most important
cases could receive more in-depth and prompt attention.
Shortly after the reorganization, OSC also adopted many of the streamlined
investigative procedures that it had pilot tested. These included
conducting more interviews by telephone for cases involving the least
serious personnel actions and using a more flexible written format for
documenting the findings of the investigation. Standard procedures require
that the findings of an investigation be recorded in a detailed written
report. However, on a case-by-case basis, a less formal report of
investigation can be used. For example, the investigator may, with
supervisory approval, opt to eliminate a detailed report of investigation
if the evidence is so clear that it is not necessary.
OSC officials stated that the reorganization increased productivity,
thereby allowing cases to be processed faster. According to OSC officials,
during the 3-1/2 years prior to the reorganization, the staffs of the
separate divisions processed an average of 5.3 cases annually per person.
During the first year after the merger of the divisions, productivity
increased to 7 cases processed per person.
Adoption of Priority System Enabled Agency to Process Certain Higher
Priority Cases Faster
In November 2001, OSC issued a policy directive that adopted a priority
case processing system that classifies all its prohibited personnel
practices cases into one of three categories. Under this approach, cases
are investigated and analyzed based on the category to which they have
been assigned. Category 1 prohibited personnel practices cases consist of
the most serious personnel actions, involving employees who are threatened
with removals, suspensions for more than 14 days, geographic
reassignments, and reductions in grade. Category 2 cases are less severe,
including cases where suspensions are 14 days or fewer, performance
appraisal ratings are below "fully successful," and denials of within-pay
grade increases are being challenged. Category 3 cases involve the least
serious adverse personnel actions, such as lower performance ratings that
are still "fully successful," non-geographical reassignments or details,
failure to promote, and reprimands. For category 3 cases, investigators
may use streamlined procedures that may require less time and staff
resources to complete.
In addition, within each of these categories, prohibited personnel
practices cases may be designated "priority"-meaning they will receive the
most prompt attention-based on the following factors: the urgency of the
need for redress, the strength of the evidence supporting a violation, or
the public interest in prompt resolution of the case. For instance,
priority cases within category 1 must either (1) meet OSC's criteria for
seeking a
stay of the personnel action or already have a stay in effect, or (2) be a
case in which OSC believes, on the basis of the evidence, that there is a
substantial likelihood that the complaint is meritorious and in which OSC
will seek corrective or disciplinary action. Within each category,
whistleblower reprisal complaints are given top priority.
Since the implementation of this system for prohibited personnel
practices, OSC has been able to process priority cases faster than the
non-priority cases. OSC's statistics show that from January 1, 2002,
through September 30, 2002, OSC processed category 1 priority cases 17
percent faster than non-priority cases, category 2 priority cases 30
percent faster, and category 3 priority cases 50 percent faster. From
October 1, 2002, through July 31, 2003, similar results were reported for
category 1 and 3 cases. The number of category 2 priority cases during
this period was too small for a reliable comparison with non-priority
cases.
OSC also has procedures to prioritize whistleblower disclosures. Although
these procedures have been in use since 2002, an agency official indicated
that they have not been adopted through a policy directive. Under the
priority system, all cases are reviewed by the unit head, who makes an
initial assessment of whether the cases are likely to meet the
"substantial likelihood" determination and places the cases in one of
three priority categories. Priority 1 cases are those that would likely
meet the determination and would be referred to the agency head for
investigation. Priority 1 cases are further categorized into two
subcategories. Subcategory A cases deal with disclosures of substantial
and specific dangers to public health and safety, while subcategory B
cases are those dealing with non health and safety disclosures. Priority 2
cases are those where further review may be appropriate and would be
referred to the agency's Office of the Inspector General. These cases do
not include health and safety allegations. Priority 3 cases are those that
are not likely to meet the substantial likelihood determination and,
therefore, likely to be closed. OSC further categorizes these disclosures
into subcategory A for those that involve disclosures of public health and
safety and subcategory B for all other disclosures. According to OSC, in
fiscal year 2002, on average, priority 1A cases-dealing with health and
safety disclosures-were referred to agency heads 1.2 times faster than
priority 1B cases, which deal with other violations. In fiscal year 2003,
on average, OSC stated that priority 1A disclosures were referred to
agency heads 2.4 times faster than priority 1B disclosures.
Since 2000, OSC has been using an ADR program for a small number of
prohibited personnel practices cases, which has reduced the average
processing time for these cases and reduced case backlog slightly. Through
ADR, OSC reported that it resolved 13 cases in fiscal year 2002 and 15
cases in fiscal year 2003. The number of backlogged cases in table 4
reflects the resolution of these cases through ADR. Similarly, OSC
reported that cases that went through ADR took 115 days in fiscal year
2002 and 122 days in fiscal year 2003. The data from table 2 on the
processing time for prohibited personnel practices cases reflect that a
small percentage of these cases was resolved through ADR. OSC's ADR
program is further discussed in appendix III.
Agency Says Existing Resources Are Inadequate, But It Is Not Clear How
Additional Resources Would Help Alleviate Backlogs
OSC told us that the primary reason it was not able to process cases more
quickly was inadequate resources. Our analysis shows that additional staff
alone may not solve the case processing problems. For example, the agency
processed about the same number of cases in fiscal year 2003 that it had
in fiscal year 1999 (2133 vs. 2109), despite having 16 percent more
attorneys and investigators. OSC noted several mitigating factors,
including staff turnover and the need to train new staff, which limited
its ability to process more cases and reduce the backlog of cases. While
OSC notes that it is difficult to meet the 15-day limit for whistleblower
disclosure cases, the agency has not proposed an alternative time limit
that officials believe is more realistic. Moreover, while the agency's
priority system appears to help handle high priority cases faster, delays
in processing whistleblower disclosure cases are still pervasive. OSC has
not detailed in any of its documents created for Congress or the executive
branch a comprehensive strategy for processing more cases within statutory
time limits and reducing the backlog of cases.
Claim that Budget for Staff Has Not Kept Pace with Caseload Does Not Fully
Explain OSC's Case Processing Record
OSC officials told us that the primary reason that the agency has not been
more successful in meeting the statutory time limit for its cases,
particularly those involving whistleblower disclosure, is lack of an
adequate number of staff.
A preliminary OSC analysis of prohibited personnel practices caseload
since 1984 showed that through 1989, the agency's caseload, staffing
levels, and budget were fairly stable. From fiscal year 1991 to 1993, the
number of new cases increased nearly 36 percent. Still, OSC data show that
at the beginning of fiscal year 1993, no prohibited personnel practices
case was
more than 6 months old-well within the 240-day limit. The number of new
cases declined slightly between fiscal years 1994 and 1996. During this
period (1991-1996) the number of full-time equivalent staff dropped from
90 to 86. These data, however, cover a period before the seven-year period
that we examined. Since 1994, OSC has had backlogged prohibited personnel
practices cases, and the number of such cases has fluctuated.
OSC officials said budget for staff has not increased fast enough to allow
the agency to consistently meet the statutory time limits, especially for
whistleblower disclosure cases. During fiscal years 2000 and 2001,
Congress authorized OSC to hire 15 additional staff, which brought its
fulltime equivalent staff to 106. To decrease case processing times, most
of the new staff were added to the divisions responsible for investigating
and prosecuting cases.
It does not appear that these staff and productivity increases after the
merger of attorneys and investigators into one division translated into
the processing of a significantly larger number of prohibited personnel
practices and whistleblower disclosure cases. The total cases processed in
fiscal year 1997 was 2,385. The figure dropped in each of fiscal years
1998, 1999, 2000, and 2001 before increasing slightly in fiscal year 2002
and moderately in fiscal year 2003. The number of whistleblower disclosure
cases processed dropped in both fiscal year 2001 (by about 13 percent) and
the following year (by about 16 percent), before rebounding with a 40
percent increase in fiscal year 2003. But the number of such cases
processed that year was still slightly less than in fiscal year 1999 (401
cases vs. 414). The number of new prohibited personnel practices cases
processed declined from fiscal year 1997 through fiscal year 2000, with
small increases in each of the next three years. But the number of cases
processed in fiscal year 2003 was about the same (1732 vs. 1695) as that
in fiscal year 1999.
OSC officials offered several mitigating factors that they say limited the
agency's ability to process more cases despite increases in staff. First,
agency data showed a high turnover in staff between 2000 and 2003, which
deprived the agency of institutional knowledge at a time when officials
were trying to train the new staff. During this period, OSC hired 47 new
staff and had 37 departures-all of whom were investigators or attorneys
involved in processing cases. Second, officials indicated that new staff
need training and time to develop experience before they can become full
contributors to case processing efforts. The ability of the staff to
develop
requisite experience through on-the-job training was hindered by the high
turnover.
Another contributing factor cited by OSC officials leading to the agency's
difficulty in processing prohibited personnel practices cases within
statutory time limits are the substantive and procedural processing
requirements imposed by the Whistleblower Protection Act of 1989 and the
OSC Reauthorization Act of 1994. The OSC reauthorization law added to the
time it could take the agency to process certain prohibited personnel
practices cases. Before the law was enacted, if OSC decided there were no
reasonable grounds for believing such a violation occurred, the agency
could immediately issue a final letter notifying a complainant of the
termination of the investigation. The reauthorization law, however,
requires OSC to send the complainant a status report of its proposed fact
findings and legal conclusions supporting this decision and give the
complainant 10 days to submit comments before OSC's decision becomes
final.
The 1989 whistleblower law and the 1994 reauthorization law require more
information in the final letters OSC sends to complainants notifying them
of the termination of the prohibited personnel practice investigation.
Prior to the 1989 law, OSC was simply required to notify the complainant
of the termination "and the reasons therefore". The 1989 law required
additional information in the notification letter, namely a summary of the
relevant facts, including the facts that support, and do not support, the
complainant's allegations. In addition, the 1994 OSC reauthorization law
required that the notification letter address any comments submitted by
the complainant in response to OSC's proposal to terminate the
investigation. While the expanded letters were intended to be more
"customer friendly", they are more time-consuming to write than the
shorter letters that the agency sent to complainants before the 1989 law
was enacted.
According to OSC, in the fall of 1993, the agency implemented new
procedures in response to congressional criticism about the breadth of the
agency's investigations and to be more consistent with the "spirit" of the
Whistleblower Protection Act of 1989. These new procedures required
broader investigations in all cases and created additional internal
memoranda on each case. As a result, investigations take longer, resulting
in the processing of fewer cases, and an increased backlog. Before these
new procedures were implemented, OSC officials said, the agency achieved
higher productivity by limiting the duration of the investigation and the
subsequent explanation of the reasons for closure in cases where the
agency found no merit.
The changes prompted by these statutes and congressional interest,
however, were implemented before the period that we examined. Thus, it is
worth noting that for both whistleblower disclosure and prohibited
personnel practices cases, if OSC had been able to process as many cases
during each of the fiscal years from 1997 through 2003 as it did in its
best year for each type of case (1997 for prohibited personnel practices
cases, 1999 for whistleblower disclosure cases), the backlog for both
would have been significantly lower by the end of fiscal 2003 than it was.
Other than the increase in, and complexity of, whistleblower disclosure
cases after September 11, 2001, OSC did not inform us of any significant
events during the years for which we obtained data that would have
prevented the agency from achieving this goal.
Meeting 15-day Limit for Whistleblower Disclosure Cases Is Difficult, But
OSC Has Not Proposed an Alternative Time Limit
According to OSC, in 1978, during congressional consideration of the Civil
Service Reform Act of 1978, senators drafting the legislation envisioned
that 15 to 20 full-time staff would be needed to process whistleblower
disclosure cases within 15 days. OSC has never assigned more than five
staff to whistleblower disclosure cases and typically has assigned only
two. Given that OSC's total full-time staff has never exceeded more than
106 and given the greater volume of prohibited personnel practices cases,
assigning several more staff to whistleblower disclosure cases would
require the agency to shift staff from one kind of case to the other. OSC
officials said they have not shifted staff from what they consider their
primary mission- prohibited personnel practices cases-to whistleblower
disclosure cases because this would decrease timeliness for prohibited
personnel practices cases.
OSC officials pointed out that no special counsel has believed that OSC
could meet the 15-day case processing time limit for whistleblower
disclosures and that cases have generally become more complex in recent
years. OSC officials told us they were not aware of any proposal by the
agency to have the 15-day limit increased.
Another reason that OSC officials cited for not meeting the 15-day time
limit is that it can be difficult to contact whistleblowers to discuss
their allegations and receive relevant documentation from them and from
agency officials within this short time frame. In one case that was
referred by a congressional committee, for example, it became increasingly
difficult
to conduct business during the day because the whistleblower preferred to
receive calls at night and would use only a commercial fax machine on
weekends to send supporting documentation. In this case, delays in
submitting the evidence contributed to OSC missing the 15-day limit.
More broadly, if OSC has a strategy for deploying any or all of the
additional staff it received in 2000 and 2001 on whistleblower disclosure
cases and a way of evaluating whether that strategy is working, the agency
has not shared it with us. Having such a strategy could be important for
ensuring that the most serious whistleblower disclosure cases receive not
just the most prompt-but also the most comprehensive-attention. If the OSC
2000 data are any guide to the future, the majority of cases (96 percent
from fiscal years 1997-2003) will continue to be those that do not meet
the "substantial likelihood" standard. If a quick determination can be
made in a large number of these cases that the standard is not met, it may
be that OSC should deploy more staff to this "weeding out" process.
Alternatively, if it is not immediately clear in a significant number of
these cases whether the "substantial likelihood" standard can be met, then
OSC might consider devoting more staff to reviewing these cases. Although
OSC's description of the cases priority system indicates that they can
track pending and closed whistleblower disclosure cases and use these data
to review workload distribution and cases processing efficiency, officials
have not indicated that they have been able to use these data to reduce
the time spent processing cases.
While OSC Reports to Congress and OMB Specify Some Reasons for Case
Processing Difficulties, These Reports Have Not Proposed Solutions to Them
In the last several years, OSC has issued a number of mandated reports and
correspondence to the Congress and the Office of Management and Budget
that discuss OSC's case processing difficulties and resulting backlog. But
OSC has not specified proposed long-term solutions for them. In its Annual
Report to Congress, OSC is required to report information on prohibited
personnel practices cases that are backlogged. In the annual reports that
we reviewed, the agency did so and acknowledged that the backlog was a
problem. For example, in its fiscal year 1999 report to Congress, OSC
disclosed that a significant backlog of cases was pending at the agency
that resulted in delays in resolving complaints. The fiscal year 2002
report noted that reducing the backlog is important because (1) Congress
imposed the 240-day limit for prohibited personnel practices cases in
response to widespread criticism concerning long delays in the processing
of complaints by OSC, and (2) a large backlog can prevent OSC staff from
quickly investigating and resolving more critical cases. But none of the
annual reports has discussed specific actions that OSC expects to take and
how these actions would affect its ability to process cases-either within
or outside statutory time limits-and reduce the backlog or the actual
effects of actions the agency took in previous years.
OSC requested seven additional staff in its fiscal year 2004 budget
request to the Congress, but did not discuss how the additional staff
would be deployed or the extent to which they would help the agency
process cases more quickly and reduce the backlog. Nor did OSC provide the
Congress with an estimate of the number of staff required to solve these
problems and/or an analysis of other changes necessary to do so.
In September 2003, the Chairman of the Senate Finance Committee wrote to
OSC expressing concerns about the backlog of whistleblower disclosure
cases and requesting information on how OSC planned to address the
backlog. In an October 2003 response, the Acting Special Counsel said OSC
has long struggled with how best to address the backlog of whistleblower
disclosure cases. He cited past efforts, including assigning such cases to
attorneys from units that would not normally handle whistleblower
disclosure cases, which led to the resolution of some cases, but was not
as successful as the agency hoped. He said he had assigned two more
investigators to assist with the whistleblower disclosure caseload. But
the Acting Special Counsel did not specifically discuss what effect the
additional investigators would have on the agency's ability to meet the
15day limit or to reduce the number of backlogged whistleblower disclosure
cases.
Strategic workforce planning-planning that focuses on developing longterm
strategies for acquiring, developing, and retaining an organization's
people aligned with human capital approaches that are clearly linked to
achieving programmatic goals-is an essential element of a modern,
effective human capital management system. OSC's fiscal year 2004 annual
performance plan includes workforce strategy as one of six strategic goals
and discusses strategies that the agency plans to take "to maintain a
highly skilled, well-trained, customer-oriented workforce, and to deploy
it most effectively to carry out the agency's mission." This plan
discusses changes in staff at the beginning of fiscal year 2001 due to
attrition and the addition of new staff, and the fact that experienced
staff has been diverted from their usual duties to mentor and help train
new staff. The agency has also identified critical skills and developed
data on employee attrition and retirement.11 However, the agency's
planning to date lacks in long-term solutions directly associated with
improving case processing and reducing case backlog. The agency has not
identified (1) critical skills needed to meet current and emerging goals,
(2) gaps in identified skills, (3) strategies to meet gaps, (4) an action
plan to implement strategy, and (5) a plan to evaluate the results.
Conclusion OSC's challenge in meeting its case processing time standards
continues despite actions taken by the Congress and the agency. The delays
in processing whistleblower disclosure cases are pervasive: Of the total
inventory of cases at the end of fiscal year 2003, 97 percent had not been
processed in the 15-day statutory time frame. OSC's actions, including
realigning its staff and developing a case priority system, have not
significantly reduced the case backlog. Presenting a strategy to Congress
that demonstrates how additional staffing, organizational changes, or
legislative solutions would help reduce the backlog of prohibited
personnel practices and whistleblower disclosure cases would provide
Congress with information that it needs for oversight and resource
allocation.
Recommendation for We recommend that the Special Counsel provide Congress
with a detailed Executive Action strategy designed to allow more
consistent processing of cases within
11This workforce plan was prepared by OSC in response to "Workforce
Planning and Restructuring," OMB Bulletin No. 01-07, May 8, 2001.
statutory time limits and a reduction in the backlog of cases for which
these limits have already passed.
Agency Comments On January 21, 2004, we provided a draft of this report to
OSC for review and comment. We met with the Special Counsel and the
Associate Special Counsel for Legal Counsel and Policy to discuss the
draft report and also received written comments from the agency. OSC
generally agreed with the contents of the report noting that our review
"has addressed a critical, long-standing issue of importance not just to
this agency, but to individuals who seek its assistance, other government
agencies, Congress, and the public." The agency agreed with our
recommendation to provide Congress with a detailed strategy designed to
allow more consistent processing of cases within statutory time limits and
a reduction in the backlog of cases. Noting that its annual report to
Congress for fiscal year 2003 has been substantially completed, OSC stated
that it plans to report to Congress on its future strategy as
expeditiously as possible this year. We believe this is reasonable. OSC's
written response is included in appendix IV. In addition, OSC provided
technical comments and clarifications, which we have incorporated where
appropriate.
As agreed with your office, unless you publicly announce its contents
earlier, we plan no further distribution of this report until 30 days
after its issuance date. At that time we will send copies to OSC and
interested congressional committees. We will make copies available to
others upon request. In addition, the report will be available at no
charge on GAO's Web site at http://www.gao.gov. If you or your staff have
questions about this report, please call me at (202) 512-9490 or Belva
Martin, Assistant Director, on (202) 512-4285. Key contributors to this
engagement are listed in appendix V.
Sincerely yours,
George H. Stalcup Director, Strategic Issues
Appendix I
OSC's Data Tracking System and Privacy Protection Policies
Data Tracking System In July 1999, OSC developed a system that tracks its
workload across the different case types. This computerized system, known
as "OSC 2000," serves two purposes (1) to code and track information
received in, and all official actions taken on, each case so that it is
available independent of the official paper case file, and (2) to create a
database from which management workload and other reports can be
generated.
OSC 2000 is designed to capture and record data on all case types from the
initial filing of the complaint, disclosure, or request for an advisory
opinion, until closure and archiving of the file. Information, including
data on the complainant, agency involved, named official, allegations,
assigned OSC staff person, and all official OSC actions in the case are
captured in chronological order. A case "profile" report has real time
information on a case from the point of initiation to closure, including
the case status, actions taken, staff assigned, allegations and other
complaint-related information. Only those users who have need for the
information OSC 2000 contains, which generally includes attorneys,
investigators and managers, have access rights. In addition, only those
users who have the need for information on a day-to-day basis are assigned
a logon identification and password. For example, the Human and
Administrative Resource Management Branch has no need to use the system
because that unit only deals with internal OSC personnel and
administrative issues; therefore, none of its staff can access OSC 2000.
OSC 2000 includes an automated real-time data reporting system, OSC 2000
Reports, which queries the database to create a number of management and
workload reports. Reports include ones for total pending workload, average
age of cases, cases pending by division, attorney or investigator; and
cases resolved by month and category. These reports serve as tools for
management to look across the agency at the status of caseload activity
and resource allocation.
To help ensure reliable and accurate data, and reports generated based on
that data, OSC 2000 has a number of built-in, multi-layered safeguard and
security features. For example, the system is designed to control what can
be entered, edited, or deleted by a given user. The system also
incorporates several layers of review to minimize the possibility of user
error. Other procedures maintain integrity of key data entered into the
system. These include system blocks to prevent case closures without
essential data, and data reconciliation, as needed, by the Records
Management Officer and management officials. Moreover, senior staff are
required to review and
Appendix I OSC's Data Tracking System and Privacy Protection Policies
continually monitor monthly reports pertaining to case intake and
processing. These reports provide the basis for the statistical data
reported in OSC's Annual Reports to Congress.
OSC 2000 is tied to the agency's network operating system and its e-mail
system. When a new case is entered into the system, required reporting
dates for the case are calculated and the system automatically notifies
the assigned staff before these dates arrive. For prohibited personnel
practices cases, OSC is required by law to provide each complainant:
(1) a letter acknowledging receipt of the complaint and identifying the
agency staff member assigned to the case within 15 days of receipt;
(2) a status report 90 days after the acknowledgement letter and a status
report every 60 days thereafter while the case is active; and
(3) a preliminary determination letter when OSC proposes to close a
complaint based on a lack of evidence or insufficient evidence, providing
the complainant with one more opportunity for input before OSC makes its
final decision.
OSC's Information Systems Branch has oversight responsibility for OSC 2000
to ensure reliability and accuracy is maintained. For example, system
users cannot delete a case; only the system administrator is permitted to
do so. To safeguard against accidental deletions, data pertaining to a
specific type of allegations and certain case actions, such as the date
when a complaint is received, cannot be deleted by anyone. Also, for
security purposes, the system maintains an audit trail for deletions. This
audit trail keeps track of all deleted data, which are kept in the
system's "holding area" in accordance with an electronic record retention
schedule. Paper documents in a typical case file are retained for a total
of three years after closure before being destroyed.
All OSC program staff receive training about the operation of OSC 2000 and
OSC 2000 Reports as part of new employee orientation, and on an ongoing
basis. Moreover, an "OSC 2000 Users' Group" meeting is held approximately
every six weeks with representatives from each work unit. The purpose is
to obtain regular feedback from customers, and to review changes and
improvements to the system. These regular meetings provide a forum for
problems to be raised and solved and for enhancements to the system to be
suggested.
Appendix I OSC's Data Tracking System and Privacy Protection Policies
Privacy Protection Policies
Given the nature of OSC's enforcement mission, its complaint and
litigation files often contain personal or sensitive information,
including information from or about complaint filers, and other
information made or received by OSC during its investigative and
prosecuting activities. OSC's basic privacy protection policies are
derived from the Privacy Act of 1974, 5 U.S.C., section 552a.1 In addition
to the Privacy Act, the Whistleblower Protection Act requires that the
identity of any employee, former employee, or applicant for employment who
makes a whistleblower disclosure may not be disclosed by OSC without such
individual's consent unless OSC determines that the disclosure of the
individual's identity is necessary because of an imminent danger to public
health or safety or imminent violation of any criminal law.
Generally, unless permitted under one of the Privacy Act's exceptions, OSC
cannot disclose any of its records by any means to any person, or to
another agency, except pursuant to a written request by, or with the prior
written consent of, the individual to whom the record pertains. Exceptions
to the Privacy Act permit certain disclosures without such a request or
consent. For example, OSC may disclose information within the agency when
other OSC employees need the information to do their jobs, to federal law
enforcement agencies for civil or criminal law enforcement purposes, or
under OSC's routine uses.
Under the Privacy Act, OSC is permitted to disclose information from its
files when doing so would be in accordance with a routine use of such
information. As required by the Privacy Act, OSC has published a
descriptive listing of its routine uses in the Federal Register, 66 Fed.
Reg. 36611 and 51095 (2001). For example, OSC may provide information to
the Equal Employment Opportunity Commission about allegations of
discrimination and to the Merit Systems Protection Board when filing a
petition for disciplinary action. In the event that OSC believes that
disclosure may be appropriate in a circumstance when it has not received a
written request or consent from a complainant or whistleblower, and
1The Privacy Act addresses the permissible disclosure of those agency
records that are contained in a system of records, which is a group of
records from which information is retrievable by name or other personal
identifier of an individual. OSC's system of records, designated as "OSC
GOVT-1, Complaint, Litigation and Political Activity Files," include
records in complaint files, disclosures files, Hatch Act advisory opinion
files, and litigation files. OSC is required to publish in the Federal
Register upon establishing or revising its record system a notice of the
existence and character of the system of records.
Appendix I OSC's Data Tracking System and Privacy Protection Policies
routine use or other Privacy Act condition of disclosure does not apply,
OSC will seek written authorization from the complainant or whistleblower.
Regardless of the permissibility of disclosure under the Privacy Act, OSC
is specifically prohibited by law from responding to inquiries concerning
work performance, ability, aptitude, general qualifications, character,
loyalty or suitability for any personnel action of any complainant who
filed a prohibited personnel practice allegation, unless (1) the
complainant consents in advance, or (2) an agency requires the information
in order to make a determination concerning the complainant's access to
highlysensitive national security information. (5 U.S.C., S: 1212(g)(2)).
When a prohibited personnel practice complaint is filed, it is OSC's
policy not to reveal the identity of the complainant even to the involved
agency unless OSC has the complainant's consent. OSC requires each filer
to select one of three consent statements that contains varying
restrictions on OSC's disclosure and use of complainant information.
OSC has taken a number of steps within the agency to ensure that the
rights and privacy of the complainants are adequately protected. The
agency requires that all staff receive training about ensuring the
confidentiality of OSC records and the privacy rights of those individuals
bringing cases to it. In addition, the agency makes information about its
policy statements and disclosure policies under the Whistleblower
Protection Act available to each person alleging reprisal for
whistleblowing.2 For example, in April 1995, OSC issued "Policy Statement
Concerning the Disclosure of Information Regarding Prohibited Personnel
Practice Complaints." OSC enhanced this statement in September 1995, when
it issued another policy statement on the "Disclosure and Use of
Information from OSC Files," which contains disclosure information
relevant to all OSC case types and outlines the Privacy Act provisions
under which OSC may disclose information about a case. Moreover, in
September 2002, OSC issued two updates to the statements that expounded on
the disclosure and use of information from OSC program files. These policy
papers afford better understanding of how OSC uses and discloses the
information that OSC acquires or creates while investigating and
prosecuting cases.
2The Office of Special Counsel Reauthorization Act of 1994, P.L. 103-424,
required OSC to issue a policy statement providing detailed guidelines on
the disclosure and the use of information to be made available to each
person alleging reprisal for whistleblowing.
Appendix II
Scope and Methodology
We examined efforts by OSC to manage its caseload. Our review provided
information in the following areas (1) OSC's caseload by type and number
and changes to the caseload between fiscal years 1997 to 2003, (2) the
extent to which cases were processed within time frames set by Congress,
(3) actions taken by management to address workload issues, and (4) the
agency's perspective on the adequacy of its resources. In addition, we
were asked to provide information on OSC's data tracking system and its
privacy protection policies.
To determine the agency's caseload by type, number, and changes over time,
we reviewed OSC's Annual Reports to Congress for fiscal years 1997 through
2002, the latest available, as well as information in OSC's budget
request, annual performance plans, and other reports to Congress. We
examined the information across the various reports and compared them to
agency-generated data to ensure that data for each year were consistently
stated. We discussed with agency officials the reasons for the
fluctuations that occurred in the caseload over time.
For the reportable years under review, we received and reviewed data by
case type. In our examination of the data, we identified discrepancies,
primarily in the beginning and ending inventory of cases. To resolve these
discrepancies, we met with OSC's Chief Information Officer. He told us
that the methodology used for querying the system had limitations. In
particular, the data entry operator used ad hoc queries that were not
reviewed and verified. To provide us with accurate data, he developed a
software program that offered a more reliable and consistent approach to
querying OSC's database. We tested the accuracy and completeness of a
sample of cases from OSC's database. Based on the results of our tests of
required elements, we determined that the data were sufficiently reliable
for the purposes of our report.
To determine the statutory time frames set by Congress, we reviewed
statutory requirements for processing prohibited personnel practice and
whistleblower disclosure cases. To determine the number of cases that were
not meeting the prescribed timeframes, we obtained data on (1) the total
number of cases processed, including subsets of the number of cases
processed within and outside of the statutory timeframes, (2) the average
time spent to process cases, (3) the beginning inventory levels, and (4)
the number of cases in backlog. Based on this information, we computed and
verified the number and percentage of cases in backlog for each year.
Throughout the report, we refer to "processed cases" to denote that OSC
has made the determination required within the statutory time limits for
Appendix II
Scope and Methodology
prohibited personnel practices cases or whistleblower disclosure cases. We
met with agency officials to discuss the delays in processing the cases
and to obtain their views on the agency's ability to meet these time
standards.
To learn about the actions taken by management to address workload issues,
we met with various managers and staff responsible for implementing
several agency-wide initiatives. We reviewed documentation describing the
progress the agency made toward accomplishing internal reforms, including
a major restructuring of organizational units and streamlining case
processing procedures. We examined productivity measures resulting from
changes to case processing procedures.
To obtain the agency's perspective on the adequacy of its resources, we
spoke with agency officials and reviewed documents on the benefits of
obtaining additional staff and funding to help eliminate the backlog and
process cases more timely. We discussed the agency's view on the principal
contributors to its inability to eliminate backlog cases. We then analyzed
the information that we obtained to form conclusions about the extent to
which the agency had made optimum use of its existing resources. Our
findings about the need for an overall strategy on how the agency plans to
reduce the backlog are based in part on our extensive work on strategic
workforce planning.
To learn about OSC's case tracking system, OSC 2000, we reviewed
documentation on the system's internal security controls and security
features for safeguarding complaint information. To determine the policies
and procedures in place, and management oversight capabilities to ensure
reliability and quality, we met with the Chief Information Officer and the
System Administrator. We also received a hands-on demonstration of system
requirements for entering data. We assessed the reliability of the data in
OSC 2000 by reviewing electronic queries of required data elements,
reviewing existing information about the data and the system that produced
them, and interviewing agency officials knowledgeable about the data.
Based on our assessment of required data elements, including the recently
generated caseload data, we determined that the data were sufficiently
reliable for the purposes of our report.
To determine OSC's policy on privacy protection for the types of cases
that it handles, we met with agency officials and examined agency policy
statements and disclosure procedures developed for the privacy and
confidentiality of complainants.
Appendix III
Organization of the Office of Special Counsel
In fiscal year 2003, OSC had five operating divisions: the Complaints and
Disclosure Analysis Division, three Investigation and Prosecution
Divisions, and the Legal Counsel and Policy Division. The three
Investigation and Prosecution Divisions resulted from the 2001 merging of
the former Investigation Division and Prosecution Divisions.
The Complaints and Disclosure Analysis Division includes OSC's two
principal intake units for new cases received by the agency-the Complaints
Examining Unit and the Disclosure Unit-and employs a total of 24 staff.
The Complaints Examining Unit is the intake point for all prohibited
personnel practices and other violations of civil service law, rule, or
regulation within the OSC's jurisdiction. The attorneys and personnel
management specialists in this unit conduct an initial review of
complaints to determine whether they are within OSC's jurisdiction and
whether further investigation is warranted. They refer all matters with a
potentially valid claim to the Investigation and Prosecution Divisions.1
The Disclosure Unit is responsible for reviewing information submitted by
whistleblowers, and for advising the Special Counsel on the appropriate
disposition of the case, including possible referral to the head of the
relevant agency for investigation, referral to an agency Inspector
General, or closure. Attorneys in this unit also analyze the reports of
agency heads in response to the Special Counsel's referral to determine
whether the reports appear reasonable and meet statutory requirements
before the Special Counsel transmits them to the President and appropriate
congressional oversight committees.
The Investigation and Prosecution Divisions consist of three divisions,
including the Hatch Act Unit and the Alternative Dispute Resolution Unit.
The three Investigation and Prosecution Divisions investigate complaints
referred to them by the Complaints Examining Unit. Each division reviews
pertinent records and interviews complainants and witnesses with knowledge
of the matters alleged. Matters not resolved during the investigative
phase undergo legal review and analysis to determine whether the matter
warrants corrective action, disciplinary action or both. Attorneys from
these units conduct litigation before the Merit Systems Protection Board.
The units also represent the Special Counsel when OSC
1When a matter is not referred for investigation, OSC provides
complainants with a written statement of reasons, to which they may
respond. On the basis of the response, if any, the Complaints Unit decides
whether to finalize its preliminary determination to close the matter or
to refer the matter for investigation.
Appendix III
Organization of the Office of Special Counsel
intervenes or otherwise participates in other proceedings before the Merit
Systems Protection Board.
The Hatch Act Unit, part of one of the Investigation and Prosecution
Divisions, is responsible for the administration of Hatch Act restrictions
on political activity by federal and certain state and local government
employees. The unit issues advisory opinions to requesters seeking
information about the application of the Act's provisions to specific
activities. It also receives and reviews complaints alleging Hatch Act
violations, referring complaints to an Investigation and Prosecution
Division, when warranted, for further investigation and possible
prosecution before the Merit Systems Protection Board.
In selected cases that have been referred for further investigation, the
Alternative Dispute Resolution (ADR) unit, a part of another one of the
Investigation and Prosecution Divisions, contacts the complainant and the
employing agency to invite them to participate in OSC's voluntary
Mediation Program. If both parties agree, OSC conducts a mediation
session, led by OSC mediators who have mediation training and experience
in federal personnel law. When mediation resolves the complaint, the
parties execute a written and binding settlement agreement. If mediation
does not resolve the complaint, it is referred for further investigation,
as it would have been had the parties not attempted mediation.
The Legal Counsel and Policy Division serves as OSC's office of general
counsel, manages the agency's Freedom of Information/Privacy Act, and
ethics programs, and engages in policy planning, development, and
implementation. The division is allotted five positions to carry out these
functions.
OSC also has two administrative support units. The Human and
Administrative Resources Management Branch, composed of six employees,
provides personnel, procurement, and other administrative services; and
the Information Systems Branch, with seven employees, provides information
technology, records management and mail services.
Appendix IV
Comments from the Office of Special Counsel
Appendix IV
Comments from the Office of Special Counsel
Appendix V
GAO Contact and Staff Acknowledgments
GAO Contact Belva Martin, (202) 512-4285
Acknowledgments In addition to the person named above, Karin Fangman,
Sharon Hogan, Michael Rose, and Greg Wilmoth made key contributions to
this report.
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