Via Erin Fuchs at Business Insider:
A federal investigation has revealed that a lawyer who headed the Office of Special Counsel (OSP) in the George W. Bush administration allegedly disliked gay workers so much that he tried to "ship" them to a new office in Detroit.
Scott Bloch — whose tenure was filled with controversy — went to great lengths to make life difficult for gay workers in the OSP, that agency's inspector general found. Bloch even told government contractor Richard Trefry that he planned to create a Detroit office just for the gays, according to the report, which was posted by the Blog of the Legal Times.
Let's start with a reminder here of what the "Office of Special Counsel" does, and why it exists. From the website of the OSC:
Who We AreThe list of prohibted practices covered by the OSC forbids any federal employee not only to "engage in reprisal for whistleblowing" but also to, "discriminate against an employee or applicant based on race, color, religion, sex, national origin, age, handicapping condition, marital status, or political affiliation", to "discriminate based on personal conduct which is not job-related and does not adversely affect the on-the-job performance of an employee, applicant, or others", or to "coerce the political activity of any person", as well as prohibitions on vaious kinds of favoritism or unfair practices in hiring, including nepotism, or any action that "would violate any law, rule or regulation implementing or directly concerning merit system principles".
The U.S. Office of Special Counsel (OSC) is an independent federal investigative and prosecutorial agency. Our basic authorities come from four federal statutes: the Civil Service Reform Act, the Whistleblower Protection Act, the Hatch Act, and the Uniformed Services Employment & Reemployment Rights Act (USERRA).
OSC’s primary mission is to safeguard the merit system by protecting federal employees and applicants from prohibited personnel practices, especially reprisal for whistleblowing. For a description of prohibited personnel practices (PPPs), click here.
A page on the OSC website specifically addressing allegations of discrimination notes:
The OSC is statutorily authorized to investigate allegations of discrimination based on race, color, religion, sex (including gender identity), national origin, age, or disability (see (1), under "Prohibited Personnel Practices," above). However, procedures for investigating such complaints have already been established in federal agencies and the Equal Employment Opportunity Commission (EEOC). Therefore, to avoid duplicating those investigative processes, the OSC follows a general policy of deferring complaints involving discrimination to those agencies' procedures.It further says that "Allegations of discrimination based on marital status and political affiliation are not within the jurisdiction of the EEOC" and thus OSC has jurisiction over those areas, and then notes also that "OSC has jurisdiction over allegations of discrimination based on conduct that does not affect job performance, which includes sexual orientation discrimination."
The main point here is that for discrimination based on things like political affiliation or sexual orientation, not covered by EEOC, OSC would be the main line of defense. In other words, the top government official charged with investigating the kinds of discrimination Scott Bloch was engaged in, was Scott Bloch.
For this reason, the investigation of Bloch, prompted by a complaint from OSC employees, was assigned to the Inspector General of the Office of Personnel Management (contrary to Erin Fuchs's report above), since the OSC could not investigate their own agency head.
Next, it is important to realize that the reason this report is only coming out now is because it was delayed for five and a half years while Bloch was investigated for destroying evidence and impeding the investigation. According to the letter accompanying the report (pdf):
In October 2007, the U.S. Attorney opened a criminal investigation and requested the participation of the OIG investigative personnel. At the further request of the prosecutor to whom the criminal case was assigned, the team suspended its administrative investigation pending resolution of the criminal issues. This took an unexpectedly prolonged time, and the criminal matter was not closed until Mr. Bloch's sentencing before U.S. District Court Judge Robert L. Wilkins on June 24, 2013.So while some of this may seem to be old news, as we knew years ago there were complaints, it's still significant to see some of the new evidence that has been collected, now that the report has finally been released. Especially of interest is the testimony of General Richard Trefry, a retired Lieutenant General of the Army, who served 6 years as the Army Inspector General (p. 32):
• General Trefry indicated that, in discussions about MPRI's study of OSC, Mr. Bloch spontaneously explained to him that OSC had a number of homosexual employees, and that he (Bloch) wanted to "ship out" these persons and "had a license to do this." The general indicated that he was unsure as to whom, if anyone, Mr. Bloch was referring by the "license'' comment. However, he observed that Mr. Bloch appeared to be "very determined" to carry out these intentions.Also of interest (p 12):
• During the period in which MPRI was performing its analytical study of OSC, General Trefry had numerous discussions with Mr. Bloch about the way in which he intended
to "ship out" homosexual employees. The general indicated that Mr. Bloch stated that his plan was to create a new OSC field office in Detroit and to staff it with the homosexual employees, along with others who he (Bloch) viewed as exerting a negative influence on the office. Mr. Bloch also indicated that he would be sending other employees to the existing Dallas Field Office. General Trefry advised Mr. Bloch not to create and staff a new field office, or to assign more employees to Dallas, on the basis that workload availability in the field did not warrant these actions.
Further, in the portions of Mr. Bloch's official e-mail account that were available to the investigative team, there were crude and vulgar messages containing anti-homosexual themes that appeared to have been forwarded from his personal email. The investigative team noted that Mr. Bloch, who stated during his interview with them that as a matter of business practice, he routinely deleted all of his email traffic to avoid "cluttering" his computer, had in fact chosen to retain such items, which were insulting to gay persons.
The report also contains a lengthy and detailed refuting of various pretexts Bloch offered for this reorganization, which were contradicted by the empiracal facts collected. So there was pretty strong circumstantial evidence that it was really intended to be a purge. But General Trefry's testimony really puts the nail in the coffin as to motives.
One unfotunate thing about this report is that there are many other allegations, with some supporting evidence, which were deemed unproven. Much of the difficulty in resolving some of them however, comes from the fact that Bloch obstructed the investigation, and destroyed evidence. The penalty for this obstruction? One day in jail, two years probation, a $5000 fine, and 200 hours of community service. That was the outcome of the criminal investigation which held up this report for 5 years.
Another thing I worry about is that some of the illegal hiring practices described, in addition to the purges of qualified employees, could continue to compromise the effectiveness of the OSC even now years after Bloch is gone. Some highlights there:
The auditor observed that the OSC personnel records the investigative team reviewed, covering the period January 2004-April 2006, reflected the "poorest documentation and recordkeeping" that he had ever encountered in his experience as a personnel management auditor. (p.39)
After repeated requests, OSC's HR officer provided the investigative team with an attorney recruitment plan dated 1979, and asserted that it was still in effect as of April 2006. Given the existence of such a plan, OSC was obligated to follow it in order to meet the regulatory requirements for Schedule A appointments, OSC's plan called for public recruitment of applicants for attorney positions in a variety of law schools, with career OSC managers primarily responsible for carrying out this process independently of the political appointees. The investigative team's interviews of OSC senior career personnel revealed that OSC's attorney recruitment activities prior to Mr. Bloch's appointment as Special Counsel generally corresponded to the plan's model. However, the career managers who had previously conducted OSC's attorney recruitment indicated to the investigative team that they had been systematically excluded from recruitment efforts during Mr. Bloch's tenure, to the extent that many new attorney personnel simply appeared for duty in their of!ices without their prior notice (p. 41)
[redacted] revealed that they had been either recruited by direct contact with Mr. Bloch or referred to OSC through the Office of Student Services of the Federalist Society. The email records reviewed by the investigations team verified that [redacted], the Federalist Society's [redacted], regularly forwarded resumes of law school graduates to Mr. Bloch. One such email alone contained the resumes of approximately 45 candidates, three of whom were hired by OSC. There was no indication that OSC provided public notice of the availability of attorney positions--a requirement of their attorney recruitment plan--during the 2004-2005 period. (p.41)
On the basis of the foregoing, the investigative team believes that there is no indication that Mr. Bloch and his staff made any attempt to adhere to the 1979 OSC attorney hiring plan. There were anecdotal indications-supported to some extent by the empirical record-that political and religious affiliations, as well as attendance at certain law schools that were of interest to Mr. Bloch, were significant factors in OSC's employment decisions. (p. 42)And again, this was all at the agency tasked with ensuring, throughout all of the federal government, that employees were protected against discrimination, as well as against unfair hiring practices, or violations of merit based hiring requirements. I think it is fair to question how effective they could have been in addressing similar practices at other agencies, with this leadership.
Finally, it should be remembered, every time you hear someone arguing that Edward Snowden, Bradley Manning, Thomas Drake or other whistleblowers should have "gone through established channels" and that there "exist plenty of protections" for them if they do, keep in mind, OSC is supposed to be their main protector. If OSC can't do it's job when it comes to protecting against descrimination and unfair hiring practices, how can we trust that they would be able to protect whistleblowers?