FY2008 Performance and Accountability Report

November 17, 2008

U.S. OFFICE OF SPECIAL COUNSEL

1730 M Street, N.W., Suite 300

Washington, D.C. 20036-4505

(www.osc.gov)
FY 2008 Performance and Accountability Report 2

TABLE OF CONTENTS

WWW.OSC.GOV

 Page

Message from the Acting Special Counsel 3

Part 1: Management Discussion and Analysis 4

I. Agency at a Glance 4

II. Statutory Background 4

III. The Mission of the U.S. Office of Special Counsel 5

IV. Organizational Structure of OSC 6

V. Performance Highlights 8

VI. OSC’s Systems, Controls, and Legal Compliance 10

VII. Management Assurances 12

VIII. Future Effects of Known Demands, Risks, Uncertainties, Events, Conditions and Trends 12

IX. Comments on Final FY 2008 Financial Statements 13

Part 2: Performance Section 16

Goals: Prohibited Personnel Practices ..................................................................................................... 17

Goals: Hatch Act...................................................................................................................................... 20

Goals: USERRA ...................................................................................................................................... 23

Goals: Whistleblower Disclosures........................................................................................................... 27

Part 3: Financial Section 29

CFO Letter.............................................................................................................................................. 30

Independent Auditor’s Report................................................................................................................. 31
FY 2008 Performance and Accountability Report 3

 

 

A Message from the Acting Special Counsel 

It is my pleasure to present the Office of Special Counsel’s Performance and Accountability Report for Fiscal 

Year 2008. This agency has a proud history of serving the federal workforce and the public through its 

tenacious defense of the merit system principles that continue to safeguard the integrity of the executive 

branch agencies of the United States. Fiscal Year 2008 marks the fifth year the U.S. Office of Special 

Counsel was required to have a financial audit. I am happy to report once again the agency’s strong results, 

which include no reportable conditions and no material weaknesses.

To all of those who rely on our counsel, our service, and our protection, be assured that we will continue 

striving for excellence. Thank you for your continued trust and confidence.

Sincerely,

William E. Reukauf

Acting Special Counsel
FY 2008 Performance and Accountability Report 4

I. Agency at a Glance

Part 1: Management Discussion and Analysis 

The U.S. Office of Special Counsel (OSC) is an independent federal investigative and 

prosecutorial agency. Its primary mission is to safeguard the merit system in federal employment, 

by protecting employees and applicants from prohibited personnel practices (PPPs), especially 

reprisal for whistleblowing. In addition, the agency operates a secure channel for federal 

whistleblower disclosures of violations of law, rule or regulation; gross mismanagement; gross 

waste of funds; abuse of authority; and substantial and specific danger to public health and safety. 

OSC also has jurisdiction under the Hatch Act to enforce restrictions on political activity by 

government employees. Finally, OSC enforces federal employment rights secured by the 

Uniformed Services Employment and Reemployment Rights Act (USERRA). OSC currently has 

approximately 110 employees. 

II. Statutory Background 

OSC was first established on January 1, 1979.1 From then until 1989, it operated as an 

autonomous investigative and prosecutorial arm of the Merit Systems Protection Board (“the 

Board”). By law, OSC received and investigated complaints from current and former federal 

employees, and applicants for federal employment, alleging prohibited personnel practices by 

federal agencies; provided advice on restrictions imposed by the Hatch Act on political activity by 

covered federal, state, and local government employees; and received disclosures from federal 

whistleblowers (current and former employees, and applicants for employment) about wrongdoing 

in government agencies. The office also enforced restrictions against prohibited personnel 

practices and political activity by filing, where appropriate, petitions for corrective and/ or 

disciplinary action with the Board.

In 1989, Congress enacted the Whistleblower Protection Act. The law made OSC an 

independent agency within the Executive Branch, with continued responsibility for the functions 

described above. It also enhanced protections against reprisal for employees who disclose 

wrongdoing in the federal government, and strengthened OSC’s ability to enforce those 

protections. 2

The Congress passed legislation in 1993 that significantly amended Hatch Act provisions 

applicable to federal and District of Columbia (D.C.) government employees, and enforced by 

OSC.3 Provisions of the act enforced by OSC with respect to certain state and local government 

employees were unaffected by the 1993 amendments.
FY 2008 Performance and Accountability Report 5

In 1994, the Uniformed Services Employment and Reemployment Rights Act became law. 

It defined employment-related rights of persons in connection with military service, prohibited 

discrimination against them because of that service, and gave OSC new authority to pursue 

remedies for violations by federal agencies.4

OSC’s 1994 reauthorization act expanded protections for federal employees, and defined 

new responsibilities for OSC and other federal agencies. It provided that within 240 days after 

receiving a prohibited personnel practice complaint, OSC should determine whether there are 

reasonable grounds to believe that such a violation occurred, exists, or is to be taken. The act 

extended the protections of certain legal provisions enforced by OSC to approximately 60,000 

employees of what was then known as the Veterans Administration (now the Department of 

Veterans Affairs), and to employees of certain government corporations. It also broadened the 

scope of personnel actions covered under these provisions. Finally, the act made federal agencies 

responsible for informing their employees of available rights and remedies under the 

Whistleblower Protection Act, and directed agencies to consult with OSC in that process. 5

In November of 2001, Congress enacted the Aviation and Transportation Security Act,6

OSC efforts led to the signing of a memorandum of understanding (MOU) with TSA in 

May 2002, under which OSC would review whistleblower retaliation complaints from security 

screeners, and recommend corrective or disciplinary action to TSA when warranted. The MOU 

did not (and could not), however, provide for OSC enforcement action before the MSPB, or for 

individual right of action (IRA) appeals by security screeners to the MSPB.

which created the Transportation Security Administration (TSA). Under the act, non-security 

screener employees of TSA could file allegations of reprisal for whistleblowing with OSC and the 

MSPB. The approximately 45,000 security screeners in TSA, however, could not pursue such 

complaints at OSC or the MSPB.

III. The Mission of the U.S. Office of Special Counsel 

OSC’s mission is to protect current and former federal employees, and applicants for 

federal employment, especially whistleblowers, from prohibited employment practices; promote 

and enforce compliance by government employees with legal restrictions on political activity, and 

facilitate disclosures by federal whistleblowers about government wrongdoing. OSC carries out 

this mission by:

• investigating complaints of prohibited personnel practices, especially reprisal for 

whistleblowing, and pursuing remedies for violations;

• providing advisory opinions on, and enforcing Hatch Act restrictions on political 

activity;

• operating an independent and secure channel for disclosures of wrongdoing in federal 

agencies;

• protecting reemployment and antidiscrimination rights of veterans under the USERRA; 

and
FY 2008 Performance and Accountability Report 6

• promoting greater understanding of the rights and responsibilities of federal employees 

under the laws enforced by OSC.

IV. Organizational Structure of OSC

OSC maintains its headquarters office in Washington, D.C. Four field offices are located 

in Dallas, Oakland, Detroit, and Washington, D.C.

Agency components during FY2008 include the Immediate Office of the Special Counsel 

(IOSC), five operating units/divisions and several supporting offices explained in detail below.

Immediate Office of the Special Counsel. The Special Counsel and staff in IOSC are 

responsible for policymaking and overall management of OSC. They also manage the agency’s 

congressional liaison and public affairs activities, and its outreach program, which includes 

promotion of compliance by other federal agencies with the employee information requirement at 

5 U.S.C. § 2302(c).

Complaints Examining Unit. This unit is the intake point for all complaints alleging 

prohibited personnel practices and other violations of civil service law, rule, or regulation within 

OSC’s jurisdiction.7 This unit is responsible for screening approximately 2,000 prohibited 

personnel practice cases per year. Attorneys and personnel management specialists conduct an 

initial review of complaints to determine if they are within OSC’s jurisdiction, and if so, whether 

further investigation is warranted. The unit refers all matters stating a potentially valid claim to 

the Investigation and Prosecution Division for further investigation.8

Disclosure Unit. This unit is responsible for receiving and reviewing disclosures from 

federal whistleblowers. It advises the Special Counsel on the appropriate disposition of the 

information disclosed (including possible referral to the head of the agency involved for an 

investigation and report to OSC; referral to an agency Inspector General; or closure). The unit 

also reviews agency reports of investigation, to determine whether they appear to be reasonable 

and in compliance with statutory requirements before the Special Counsel sends them to the 

President and appropriate congressional oversight committees.

Investigation and Prosecution Division

If meritorious cases cannot be resolved through negotiation with the agency involved, 

division attorneys represent the Special Counsel in litigation before the Merit Systems Protection 

Board. They also represent the Special Counsel when OSC intervenes, or otherwise participates, 

in other proceedings before the Board. Finally, division investigators and attorneys also 

. The Investigation and Prosecution Division 

(IPD) is comprised of four field offices. The IPD conducts field investigations of matters referred 

after preliminary inquiry by the Complaints Examining Unit. Division attorneys conduct a legal 

analysis after investigations are completed to determine whether the evidence is sufficient to 

establish that a prohibited personnel practice (or other violation within OSC’s jurisdiction) has 

occurred. Investigators work with attorneys in evaluating whether a matter warrants corrective 

action, disciplinary action, or both.
FY 2008 Performance and Accountability Report 7

sometimes investigate alleged violations of the Hatch Act and the Uniformed Services 

Employment and Reemployment Rights Act, though most Hatch Act and USERRA work is 

handled by the Hatch Act Unit and the USERRA Unit, respectively. 

Hatch Act Unit. This unit issues advisory opinions to individuals seeking information 

about Hatch Act restrictions on political activity by federal, and certain state and local, 

government employees. The unit is also responsible for enforcing the act. It reviews complaints 

alleging Hatch Act violations and, when warranted, investigates and prosecutes the matter (or 

refers the matter to the Investigation and Prosecution Division for further action). It will also 

oversee Hatch Act matters farmed out to the IPD.

USERRA Unit. This unit handles USERRA cases that are referred to OSC for 

prosecution by the Department of Labor. In addition, during FY 2008, this unit worked on 

investigating the last remaining cases that were transferred to OSC under the Demonstration 

Project created by P.L. 108-454. This law required OSC to investigate approximately half of all 

federal sector USERRA cases, and to prosecute wherever warranted.

SUPPORTING UNITS:

Alternative Dispute Resolution Program. In selected cases referred by the Complaints 

Examining Unit for further investigation, the agency contacts the complainant and the agency 

involved, and invites them to participate in OSC’s voluntary Mediation Program. If mediation 

resolves the complaint, the parties execute a written and binding settlement agreement; if not, the 

complaint is referred for further investigation. 

The mediation program for Alternative Dispute Resolution has been reorganized. Rather 

than have a single ADR specialist under the leadership of an SES employee, the agency has 

expanded the program through cross-training multiple individuals from OSC’s operating units. As 

a result the agency now has a broad pool of trained mediators with different legal areas of 

expertise.

Legal Counsel and Policy Division. This division provides general counsel and policy 

services to OSC, including legal advice and support on management and administrative matters; 

legal defense of OSC in litigation filed against the agency; policy planning and development; and 

management of the agency ethics program.

Management and Budget Division. This division provides administrative and 

management support services to OSC, in furtherance of program, human capital, and budget 

decisions. This division also includes the Information Technology Branch, Human Resources 

Branch, Document Control Branch and Budget and Procurement branch. The purpose of this 

division is to put the administrative support functions under one authority.

Training Office. A training office has been created to train all new employees, cross train 

existing employees, and develop specialized training in areas such as litigation skills. 

Specifically, the Training Office will cross train attorneys and investigators to enable them to 
FY 2008 Performance and Accountability Report 8

traverse organizational boundaries within the agency. They will develop sufficient expertise in 

several areas of the law, giving management the ability to detail employees to address any 

potential backlogs that could form in the various units. 

V. Performance Highlights

A high priority item in recent Performance and Accountability Reports has been the status 

of backlogs at OSC. During FY 2008, despite elevated numbers of Hatch Act cases (up an 

unprecedented 58%), disclosures (up 10%), and cases involving Prohibited Personnel Practices 

(up 8%), the agency worked hard to avoid a recurrence of backlogs in these three units. 

1) FAA Safety. OSC recently completed investigations into the FAA resulting in much 

needed oversight and changes for passengers and increased airline safety compliance.

OSC’S SUCCESSES IN FY 2007

2) OSC’s FAA Task Force. This internal task force continues to receive and address 

numerous safety-related issues from concerned whistleblowers and is working 

collaboratively with the FAA and Congressional oversight committees to ensure safety 

concerns are being addressed.

3) New Orleans Pumps. OSC’s work on the possibly defective New Orleans levee pumps 

prompted a new independent investigation to ensure proper safeguards are in place to 

avoid another Katrina disaster.

4) High profile Hatch Act results. Over the last year, OSC has investigated hundreds of 

potential Hatch Act violations and has worked efficaciously to prosecute egregious cases 

of politicization and coercion. For example, a recent high profile OSC investigation of an 

Ohio Prosecutor who solicited subordinate employees for political contributions resulted in 

an admission of guilt and an agreement not to seek employment with a locality or 

government agency for a period of 18 months. 

5) More Hatch Act results. Another prominent investigation by the OSC resulted in a 180-

day suspension for a NASA employee for using his government email account to send 

partisan political e-mails. The employee was also found to have solicited political 

contributions.

6) OSC Special Task Force continues review of possible violations by administration 

officials. OSC is conducting several high-level investigations related to the Hatch Act and 

to possible violations of certain Prohibited Personnel Practices.
FY 2008 Performance and Accountability Report 9

7) OSC’s willingness to prosecute federal agencies for violations of the USERRA law. 

OSC set precedent in the last four years by filing a number of USERRA cases with the 

Merit Systems Protection Board, and receiving full corrective action in nearly all of them, 

including one in which the U.S. Department of Labor told the claimant that his case had no 

merit. Several of these cases stem from the demonstration project created by the Veterans 

Benefits Improvement Act of 2004, under which OSC has responsibility to investigate and 

resolve certain federal sector USERRA cases. This willingness to prosecute USERRA 

violations also contributes to more corrective action settlements prior to litigation. OSC 

achieved another 26 USERRA corrective actions in Demonstration Project cases during FY 

2008, bringing its total for the three year project to 120, which represents a corrective 

action rate for the project of approximately 27%.

8) Specific USERRA Results. An Air National Guardsman, who lost his federal job while on 

active military duty, waited more than seven years to get relief under USERRA. Only 

months after the Government agency where his case had languished for seven years 

referred it to OSC, a settlement was reached providing him with full back pay and restored 

benefits.

9) More Specific USERRA Results. In many instances, OSC investigates complex USERRA 

claims where investigators work to remedy personal hardships caused by employer’s 

misunderstanding of the law. For example, one of this year’s cases involved a claimant who 

alleged that an agency mischarged his leave and imposed a debt on him as a result of his 

service in the Air Force Reserve. At the USERRA unit’s request, the agency took the series 

of actions that were necessary to fully correct the situation, including restoring the 

employee’s annual leave, cancelling the debt, and reimbursing him for lost pay.

10) OSC continues to enhance its resources for conducting mediations. Instead of having 

one full time mediator, seven people from different parts of the agency have received 

training in conducting mediations. OSC now has a cadre of professionals with varied skills 

and legal expertise in multiple areas from which to draw. 

11) OSC continues to operate under its re-designed Performance Goals. OSC’s 

performance goals are now measurable, finite, and directly aligned with the four statutory 

missions of the agency. They deal with timeliness, quality, and outreach (where 

applicable) for each enforcement mission. The Senate Appropriations Committee 

expressed their satisfaction with the changes and they appeared for the first time in the FY 

2008 Congressional Budget Justification. OSC will continue to use its performance goals 

to drive a results-oriented performance culture.

 

Although the elimination of backlogged cases has helped OSC achieve its strategic goals 

of protecting federal employees from PPPs, protecting the merit system, and guarding the public 

interest through its Disclosure Unit, there are other important ways in which the agency must 

gauge its success. OSC made progress on improving the timeliness to review PPP cases (95% 

processed in less than 240 days during FY 2008, a 1% improvement above the FY 2007 result). 

Despite unprecedented spikes in Hatch Act caseload (up 58% over FY 2007), OSC still managed 

to resolve 88% of them in less than 365 days. Timely settlements and processing of cases are very 

important and will be a continued focus of the agency in the coming year. 
FY 2008 Performance and Accountability Report 10

VI. OSC's Systems, Controls, and Legal Compliance

Management control activities carried out by OSC include periodic reviews of agency 

administrative and program elements to assure that obligations and costs comply with applicable 

laws; funds, property and other assets are safeguarded; revenues and expenditures are properly 

recorded and accounted for; and programs are efficiently and effectively carried out in accordance 

with law and management policy. During FY 2008, reviews were completed on the following 

agency administrative operations:

1. Information Security Program. OSC’s Chief Information Officer conducts an annual 

security review. The results of this review were summarized in the agency’s Federal 

Information Security Management Act (FISMA) Report, submitted to OMB in early 

October, 2008. The review found no material weaknesses in the agency’s information 

technology policies, procedures, or practices. Further, there were no security incidents 

affecting critical agency information systems.

2. GAO Correspondence. In early 2008, GAO followed up on its 2007 correspondence 

entitled “Office of Special Counsel Needs to Follow Structured Life Cycle 

Management Practices for its Case Tracking System.” That report had recommended 

that OSC develop an SDLC approach for its case tracking system, OSC2000. OSC’s 

case tracking system has never had any data reliability problems during its seven years 

of constant use by the agency. But in order to acknowledge that a recommendation had 

been made, OSC spent considerable man-hours developing the SDLC documentation 

for the system, which was completed in August of 2007. The report also recommended

that OSC establish a standardized method of querying its database. OSC launched a 

project to create the standardized queries and completed the project in July of 2007.

OSC responded to follow–up questions from GAO concerning both of them in early 

FY 2008.

3. Financial Audit. OSC is undergoing its fifth financial audit. The agency’s first audit 

was in FY 2004. The auditors reported no material weaknesses in FY 2004, FY 2005, 

FY 2006, or FY 2007. The FY 2008 audit addresses the financial statements and 

accounting processes, almost all of which were accomplished by the National Business 

Center (NBC) at the Department of Interior under an interagency outsourcing 

agreement. In the event that any material control weaknesses are identified during this 

year’s audit, they will be discussed in the next FMFIA/IG Act report.

4. OSC Capitalization Policy. In November of FY 2005, OSC created a capitalization 

policy for assets with a purchase price over $50,000. This policy is in place and 

reviewed quarterly, to determine if OSC has additional assets to capitalize.

5. HSPD-12. To comply with the security requirements of directive HSPD-12, OSC has 

an agreement for HSPD-12 services with the General Services Administration. OSC 
FY 2008 Performance and Accountability Report 11

has met the 2006, 2007, and 2008 deadlines for the accomplishment of HSPD-12 

milestones and is now in the process of having PIV cards issued to all OSC employees.

In FY 2008, OSC outsourced several financial management and administrative activities to 

the National Business Center (NBC). These activities included budget accounting, financial 

accounting, reporting accounting, procurement systems software, and travel services. OSC 

personnel and payroll data entry transactions were processed by the Department of Agriculture’s 

National Finance Center (NFC). These operations were administered under cross-servicing 

agreements. For information on any significant management control issues related to services 

provided under these agreements, OSC relies on information received from NBC and NFC, and 

any audits or reviews issued by the Inspectors General and Chief Financial Officers of the 

Departments of Treasury and Agriculture, and the Government Accountability Office (GAO).

In May of 2007, there was a GAO Correspondence entitled “Managerial Cost Accounting 

Practices at the Department of Interior”, which pointed out perceived managerial accounting 

deficiencies in various divisions of the Department of Interior. However, GAO states that the 

deficiencies affect the way NBC sets pricing and makes managerial decisions. There is no effect 

on the accounting they do for OSC, other than the possibility that NBC’s pricing could be slightly 

lower or higher than it would be with a better activity based costing system, which could spread 

costs evenly among clients according to effort expended on the individual clients. 
FY 2008 Performance and Accountability Report 12

VII. Management Assurances

Annual Assurance Statement on Internal Controls and Internal Control over Financial 

Reporting

OSC's management is responsible for establishing and maintaining effective internal 

control and financial management systems that meet the objectives of the Federal Managers' 

Financial Integrity Act (FMFIA). OSC conducted its assessment of internal control over the 

effectiveness and efficiency of operations and compliance with applicable laws and regulations in 

accordance with OMB Circular A-123, Management's Responsibility for Internal Control. Based 

on the results of this evaluation, OSC can provide reasonable assurance that its internal control 

over the effectiveness and efficiency of operations and compliance with applicable laws and 

regulations as of September 30, 2008 was operating effectively and no material weaknesses were 

found in the design or operation of the internal controls.

OSC works with the National Business Center (NBC) for its financial reporting needs. 

OSC obtains the SAS 70 report from NBC, and reviews it to assist in assessing internal control 

over financial reporting. OSC has not discovered any significant issues or deviations in its 

financial reporting during FY 2008 and therefore concludes that the agency’s internal controls 

over financial reporting are sufficiently strong.

OSC has no in-house financial system. OSC has chosen to use Oracle Federal Financials 

on an instance hosted by NBC, a shared service provider. Because of the rigorous testing that 

NBC undergoes, OSC considers its financial system to be reliable and effective.

 

William E. Reukauf

Acting Special Counsel

November 17, 2008
FY 2008 Performance and Accountability Report 13

VIII.Future Effects of Known Demands, Risks, Uncertainties, 

Events, Conditions, and Trends

In the past several years, the agency has experienced an increase in caseload level. For 

example, in FY 2008, OSC’s caseload increased 8.0%, and in FY 2007, OSC’s caseload increased 

6.0%. Several factors which have contributed to these rising levels of complaint filings with OSC:

 In recent years, OSC has had a large number of high-profile whistleblower cases, leading to 

increased national press coverage of OSC. FY 2008 accelerated this trend. There is now a 

very heightened awareness of the Hatch Act among Federal employees. The number of Hatch 

Act complaints received in FY 2008 was approximately 50% higher than the highest number 

ever previously received in a year. Hatch Act complaints in FY 2009 are expected to remain at 

these elevated levels. 

 IN 2004, Congress passed a statute intended to improve results and decrease the processing 

time for USERRA complainants from members of our armed forces. Under the three-year 

Demonstration Project, which ended December 31, 2007, OSC investigated half of the 

USERRA cases that would typically have been investigated by the Department of Labor, 

thereby increasing OSC’s USERRA caseload considerably. OSC is confident that this pilot 

program improved results for members of our military who were being denied rights under 

USERRA. During the three year program OSC achieved 120 corrective actions in USERRA 

cases, which represented 27% of all USERRA cases handled by OSC under the Demonstration 

Project. Given these excellent results, now that the three year project is over, it is very 

possible that Congress will ask OSC to take on the responsibility of investigating all Federal 

USERRA cases. 

 OSC continues to investigate whistleblower retaliation complaints from Transportation 

Security Agency (TSA) security screeners under OSC’s Memorandum of Understanding 

(MOU) with TSA. This MOU remains viable despite the Merit System Protection Board’s 

decision that the Board does not have jurisdiction to adjudicate these matters.

 During FY 2008, OSC continued to certify more agencies through its outreach program. As 

agencies implement the certification process, agency employees who might previously have 

been unaware of their rights and remedies through OSC are becoming informed.

 In addition to OSC’s certification program, OSC continues to provide outreach programs to 

agencies requesting them, or as part of OSC settlements in particular matters. Outreaches 

explaining the twelve Prohibited Personnel Practices can precipitate new cases being filed with 

OSC, because employees learn more about what a PPP is, and sometimes realize that one may 

have been committed against them. But in the long run, continued outreaches should diminish

actual violations by raising awareness.

 OSC continues to stress the importance of agency-wide cross training. This is an important 

initiative, which has already provided benefits in efficiency at OSC by developing many of the 

agency’s employees to the point where they have sufficient expertise to operate in more than 

one of OSC’s highly specialized units. These highly trained employees can therefore cross 
FY 2008 Performance and Accountability Report 14

organizational boundaries to address any building case backlogs in their initial stages. 

IX. Comments on Final FY 2007 Financial Statements

• OSC’s Asset Capitalization Policy has been in place for three years. It pertains to assets 

with an initial purchase price over $50,000. The agency’s phone system was the first item 

to be placed on the list of capitalized assets. The videoconferencing equipment and certain 

leasehold improvements were subsequently added to the list. 

• An ongoing trend is that salaries, benefits, rent and utility payments tend to take 

precedence over major productivity-enhancing Information Technology projects. Salaries, 

benefits, rent and utility payments are over 90% of the agency’s expenditures. Any 

increases such as pay raises or rent increases have an impact on the agency’s ability to fund 

the IT projects. OSC continues to find ways to implement IT enhancements at low costs. 

However, in the near future, investments in certain systems must be made, for projects 

such as the upgrade of OSC’s case tracking system to a web-based platform. 

• OSC’s Unfunded Annual Leave Liability on the Balance Sheet continues to rise. At the 

end of FY 2008 it was $851,000 an 11.4% increase over the already high accrued leave 

liability amount at the end of FY 2007. This liability stems from the diligent effort given 

by the OSC employees to continue to accomplish the missions of the agency in a timely 

manner in spite of elevated case levels in all units, and to handle the increased 

responsibilities of the Special Task Force, the FAA Task Force, and the remaining 

USERRA Demonstration Project cases.

• Limitations of the Financial Statements: The principal financial statements have been 

prepared to report the financial position and results of operations of OSC, pursuant to the 

requirements of 31 U.S.C. 3515 (b).

The statements have been prepared from the books and records of the Review Commission 

in accordance with generally accepted accounting principles (GAAP) for Federal entities 

and formats prescribed by the Office of Management and Budget (OMB). The statements 

are in addition to the financial reports used to monitor and control budgetary resources 

which are prepared from the same books and records. These statements should be read 

with the realization that they are for a component of the United States Government, a 

sovereign entity.
FY 2008 Performance and Accountability Report 15

 

Endnotes

 1

 Reorganization Plan Number 2 of 1978. See 5 U.S.C.A. App.1, § 204. The Civil Service Reform Act of 1978 

(Public Law No. 95-454, 92 Stat. 1111) enlarged OSC’s functions and powers. 2 Public Law No. 101-12 (1989). Provisions setting forth OSC authorities and responsibilities were codified at 

5 U.S.C. § 1211, et seq. 3 Public Law No. 103-94 (1993), codified in scattered sections of 5 U.S.C. and 12 U.S.C. 4 Public Law No. 103-353 (1994), codified at 38 U.S.C. § 4301, et seq. The Veterans’ Employment Opportunities 

Act of 1998 (Public Law No. 103-424) also expanded OSC’s role in protecting veterans. The act made it a prohibited 

personnel practice to knowingly take, recommend, or approve (or fail to take, recommend, or approve) any personnel 

action, if taking (or failing to take) such action would violate a veterans’ preference requirement. See 5 U.S.C. § 

2302(b)(11). (The former § 2302(b)(11) was re-designated as § 2302(b)(12).). 5 Public Law No. 103-424 (1994), codified in various sections of title 5 of the U.S. Code. The provision making 

federal agencies responsible, in consultation with OSC, for informing their employees of rights and remedies under 

the Whistleblower Protection Act appears at 5 U.S.C. § 2302(c). 6 Public Law 107-71 (2001). 7 Unless noted otherwise, all references after this to prohibited personnel practice complaints include complaints 

alleging other violations of civil service law, rule, or regulation listed at 5 U.S.C. § 1216, except for alleged violations 

of the Hatch Act.

8 When the Complaints Examining Unit makes a preliminary determination to close a complaint without further 

investigation, it must by law provide complainants with a written statement of reasons, to which they may respond. 

On the basis of the response, if any, the unit decides whether to close the matter, or refer it to the Investigation and 

Prosecution Division.
FY 2008 Performance and Accountability Report 16

 

Part 2: Performance Section
FY 2008 Performance and Accountability Report 17

 

Goal 1: TO PROTECT THE MERIT SYSTEM THROUGH TIMELY 

CASE PROCESSING

PPP Enforcement Mission PROHIBITED PERSONNEL

PRACTICES CASES

PERFORMANCE INDICATOR Indicator A: Percentage of cases 

processed in less than 240 days.

FY 2006 TARGET 85%

FY 2006 RESULTS 89%

FY 2007 TARGET 92%a

FY 2007 RESULTS 94%

FY 2008 TARGET 92%

FY 2008 RESULTS 95%

FY 2009 TARGET 92%

FY 2009 RESULTS

FY 2010 TARGET 94%

FY 2010 RESULTS

OSC achieved its timeliness target in FY 2008. Therefore, we are again raising the target. Some 

investigations take longer than 240 days due to factors outside of OSC’s control, such as 

extensions of time requested by the agency under investigation, and the timeframes associated 

with litigation.
FY 2008 Performance and Accountability Report 18

 

Goal 2: TO PROMOTE JUSTICE THROUGH THE QUALITY OF 

INVESTIGATIONS AND ENFORCEMENTS 

PPP Enforcement Mission Prohibited Personnel 

Practices Cases 

PERFORMANCE INDICATOR

Indicator A: % favorable 

outcomes in cases determined by 

OSC to be meritorious = (# 

successful mediations + # of 

settlements achieved + # of 

successful litigations) / (# 

meritorious cases) 

FY 2006 TARGET 99%

FY 2006 RESULTS 100%

FY 2007 TARGET 99%

FY 2007 RESULTS 100%

FY 2008 TARGET 100%

FY 2008 RESULTS 100%

FY 2009 TARGET 100%

FY 2009 RESULTS

FY 2010 TARGET 100%

FY 2010 RESULTS

OSC did not lose any cases this year in PPP litigation before the board. Normally, agencies will 

settle the matter when OSC outlines the nature of the prohibited personnel practices that have been 

committed.
FY 2008 Performance and Accountability Report 19

 

Goal 3: TO PROMOTE COMPLIANCE WITH THE STATUTES THAT 

OSC ENFORCES THROUGH ENHANCED OUTREACH TO FEDERAL 

AGENCIES

PPP Enforcement Mission PROHIBITED PERSONNEL

PRACTICES CASES

PERFORMANCE INDICATOR

Indicator A: # of new Federal 

agencies certified in the 2302 (c) 

Program by OSC. 

FY 2006 TARGET 5

FY 2006 RESULTS 6

FY 2007 TARGET 5

FY 2007 RESULTS 3

FY 2008 TARGET 5

FY 2008 RESULTS 5

FY 2009 TARGET 5

FY 2009 RESULTS

FY 2010 TARGET 5

FY 2010 RESULTS
FY 2008 Performance and Accountability Report 20

 

Goal 1: TO DEFEND THE MERIT SYSTEM BY ENFORCING THE 

HATCH ACT – THROUGH TIMELY CASE PROCESSING

HATCH ACT 

MISSION 

HATCH ACT 

WRITTEN 

ADVISORY 

OPINIONS

HATCH ACT 

ORAL & 

EMAIL 

ADVISORY 

OPINIONS

HATCH ACT 

COMPLAINTS

PERFORMANCE 

INDICATORS

Indicator A:

Percentage of 

formal 

written 

advisory 

opinions 

issued in less 

than 120 days. 

Indicator B: 

Percentage of 

oral and email advisory 

opinions 

issued in less 

than five 

business days

Indicator C: 

Percentage of 

matters resolved 

in less than 365 

days.

FY 2006 TARGET 75% 99% 60%

FY 2006 RESULTS 93% 100% 84%

FY 2007 TARGET 80% 99% 70%

FY 2007 RESULTS 91% 99% 92%

FY 2008 TARGET 85% 99% 80%

FY 2008 RESULTS 83% 100% Oral 88% 95% Email

FY 2009 TARGET 90% 99% Oral 85% 95% Email

FY 2009 RESULTS

FY 2010 TARGET 90% 99% Oral 85% 95% Email

FY 2010 RESULTS

Indicator A: OSC came close to meeting its timeliness goal for formal advisory opinions during FY 2008. 

The election year spikes in Hatch Act complaints received, oral and email advisories requested, and written 

advisories requested were even larger than anticipated. These spikes made it nearly impossible to meet the 

targets, despite tremendous effort to do so.

Indicator B: OSC always issued the oral advisory opinions within five days. Due to the volume of work 

and resource allocations, there were times when employees were unable to issue every email advisory 

within five days.

Indicator C: OSC met its target for percent of Hatch matters resolved in less than 365 days. This 

is remarkable, given the size of the election year spike. 446 complaints were received, 147 more 

than the previous high during any fiscal year.
FY 2008 Performance and Accountability Report 21

 

Goal 2: TO PROMOTE JUSTICE THROUGH THE QUALITY OF 

INVESTIGATIONS AND ENFORCEMENTS

HATCH ACT 

MISSION 

HATCH ACT CASES

PERFORMANCE 

INDICATOR

Indicator A: % favorable outcomes in meritorious 

cases

FY 2006 TARGET 90%

FY 2006 RESULTS 97%

FY 2007 TARGET 90%

FY 2007 RESULTS 97%

FY 2008 TARGET 97%

FY 2008 RESULTS 96%

FY 2009 TARGET 97%

FY 2009 RESULTS

FY 2010 TARGET 97%

FY 2010 RESULTS

OSC’s Hatch Act Unit was very close to its target of 97% favorable outcomes. There were two 

cases in which the unit was not successful.
FY 2008 Performance and Accountability Report 22

 

Goal 3: TO PROMOTE COMPLIANCE WITH THE STATUTES THAT 

OSC ENFORCES THROUGH ENHANCED OUTREACH TO FEDERAL 

AGENCIES

HATCH ACT 

MISSION 

HATCH ACT 

OUTREACH VISITS 

HATCH ACT SECTION 

OF OSC WEBSITE 

PERFORMANCE 

INDICATORS

Indicator A: (# of HA 

trainings and 

outreaches given) / (# 

of invitations to 

provide HA training 

or outreach, where the 

inviter sponsors OSC) 

Indicator B: Number of new 

advisory complex opinions 

added every month to the 

website.

FY 2006 TARGET 90% One

FY 2006 RESULTS 96% One

FY 2007 TARGET 90% One

FY 2007 RESULTS 100% One

FY 2008 TARGET 95% One

FY 2008 RESULTS 98% One

FY 2009 TARGET 95% One

FY 2009 RESULTS

FY 2010 TARGET 95% One

FY 2010 RESULTS

Indicator A: OSC’s Hatch Act Unit only declined one request for outreach this fiscal year, despite 

the huge spike in workload.
FY 2008 Performance and Accountability Report 23

 

Goal 1: TO ENFORCE THE UNIFORMED SERVICES EMPLOYMENT AND 

REEMPLOYMENT RIGHTS ACT THROUGH TIMELY CASE PROCESSING 

USERRA 

MISSION

USERRA A: 

RE Cases 

USERRA B: 

DP-OD Cases 

USERRA C: 

DP-MX Cases 

USERRA D: 

DP-TSA Cases 

PERFORMANCE 

INDICAT

ORS

Indicator A:

Percentage of 

referrals closed 

or referred for 

litigation 

within 60 

daysof receipt.a

Indicator A:

Average 

number of 

days in which 

the case is 

settled, closed 

or a decision to 

litigate is 

made.

Indicator A: 

Average 

number of 

days in which 

the case is 

settled, closed 

or a decision 

to litigate is 

made.

Indicator A: 

Average number 

of days in which a 

“no merit” 

determination is 

made or a request 

for voluntary 

corrective action is 

sent to TSA.

FY 2007 

TARGET 75 days 160 days 160 days 160 days

FY 2007 

RESULTS 33 days 107 days 171 days 90 days

FY 2008 

TARGET 75 days 140 days 160 days 140 days

FY 2008 

RESULTS

 110 days 204 days 192 days NA

FY 2009 

TARGET 80% in 60 days NA NA NA

FY 2009 

RESULTS

FY 2010 

TARGET 80% in 60 days NA NA NA

FY 2010 

RESULTS

a

The first year for which data will be available is FY 2009, based on USERRA amendments 

signed into law on October 10, 2008 (Veterans’ Benefits Improvement Act of 2008, P.L. 110-

389).

Indicator A: Two cases were excluded from this calculation because they do not accurately 

represent OSC’s average processing times in these matters, and inordinately skew the average if 

included:

In one case, DOL did not fully investigate or analyze the claimant’s original allegations, and the 

claimant raised numerous new allegations after his complaint was referred to OSC. Therefore, it 

was necessary for OSC to do extensive follow-up investigation and analysis to make a 

determination on the complaint. In theory, DOL investigates all allegations and OSC reviews 
FY 2008 Performance and Accountability Report 24

 

DOL’s investigative file to make a representation decision. In this matter, OSC also had to 

conduct its own follow-up investigation, substantially increasing the processing time.

Similarly, in another case, OSC and DOL agreed for DOL to immediately refer this highly 

complex matter to OSC without investigating it, primarily because the claimant’s USERRA 

allegations were related to several Prohibited Personnel Practice (PPP) allegations, over which 

OSC has exclusive jurisdiction. Thus, OSC conducted its own investigation and analysis of all 

allegations together (USERRA & PPP), significantly adding to the processing time.

In most cases, the division between investigative (DOL) and prosecutorial (OSC) responsibilities 

is clearer, but the two cases described above presented unusual circumstances that justify their 

exclusion from this calculation.

Beginning in FY 2009, we have changed the target for Indicator A to be “80% in 60 days” for RE 

cases, due to the new statutory requirement for these types of cases.

Indicators B & C: OSC’s USERRA Unit missed its aggressive FY 2008 targets for DP-OD and 

DP-MX cases. The Demonstration Project finished in 2007, but OSC closed a number of the most 

complex cases in FY 2008. These were very complex cases from previous fiscal years and 

therefore raised the overall number of average days.
FY 2008 Performance and Accountability Report 25

 

Goal 2: TO PROMOTE JUSTICE THROUGH THE QUALITY OF 

INVESTIGATIONS AND ENFORCEMENTS

USERRA 

MISSION 

USERRA CASES

PERFORMANCE 

INDICATORS

Indicator A: % 

favorable outcomes 

in cases determined 

by OSC to be 

meritorious = (# 

successful mediations 

+ # of settlements 

achieved + # of 

successful litigations) 

/ (# meritorious 

cases)

Indicator B: # of “test cases” filed

FY 2006 TARGET 90% Inappropriate to set a specific target

FY 2006 RESULTS 100% 0

FY 2007 TARGET 90% Inappropriate to set a specific target

FY 2007 RESULTS 100% 1

FY 2008 TARGET 95% Inappropriate to set a specific target

FY 2008 RESULTS 97% 1

FY 2009 TARGET 99% Inappropriate to set a specific target

FY 2009 RESULTS

FY 2010 TARGET 90% Inappropriate to set a specific target

FY 2010 RESULTS

Indicator A: OSC was successful in 28 out of 29 meritorious cases during FY 2008, which is 

96.6%.

Indicator B: There was one test case filed that falls in this category.
FY 2008 Performance and Accountability Report 26

 

Goal 3: TO PROMOTE COMPLIANCE WITH THE STATUTES THAT OSC 

ENFORCES THROUGH ENHANCED OUTREACH TO FEDERAL 

AGENCIES

USERRA 

MISSION 

USERRA CASES

PERFORMANCE 

INDICATORS

Indicator A: (# of 

USERRA trainings 

and outreaches 

given) / (# of 

invitations to provide 

USERRA training or 

outreach visits 

{where inviting 

agency sponsors 

OSC})

Indicator B: (# of USERRA 

trainings and outreaches given) / 

(# of invitations to provide 

USERRA training or outreach 

visits {where OSC pays expenses}) 

FY 2006 TARGET 90% 50%

FY 2006 RESULTS NA 100%

FY 2007 TARGET 90% 50% 

FY 2007 RESULTS 100% 100%

FY 2008 TARGET 90% 75%

FY 2008 RESULTS 100% NA

FY 2009 TARGET 90% 75%

FY 2009 RESULTS

FY 2010 TARGET 100% 75%

FY 2010 RESULTS

Five outreaches were requested in FY 2008. All five were accomplished by the USERRA Unit.
FY 2008 Performance and Accountability Report 27

 

Goal 1: TO RECEIVE AND RESOLVE WHISTLEBLOWER DISCLOSURES 

WITH TIMELY PROCESSING 

WHISTLEBLOWER 

DISCLOSURE 

MISSION 

DISCLOSURES

PERFORMANCE 

INDICATORS

Indicator A: Percentage of disclosures resolved within 

the statutory 15 day time frame 

FY 2006 TARGET 50%

FY 2006 RESULTS 42%

FY 2007 TARGET 50%

FY 2007 RESULTS 61%

FY 2008 TARGET 50%

FY 2008 RESULTS 52%

FY 2009 TARGET 50%

FY 2009 RESULTS

FY 2010 TARGET 50%

FY 2010 RESULTS

Through tremendous effort, OSC’s Disclosure Unit achieved its target of 50% during FY 2008.
FY 2008 Performance and Accountability Report 28

 

Goal 2: TO PROMOTE JUSTICE AND PROTECT THE MERIT SYSTEM 

THROUGH THE QUALITY OF DETERMINATIONS AND REFERRALS

WHISTLEBLOWER 

DISCLOSURE 

MISSION 

DISCLOSURES

PERFORMANCE 

INDICATORS

Indicator A: % Percentage of disclosures referred to 

agency head, pursuant to 5 U.S.C. § 1213, or under the 

informal IG referral process. 

FY 2006 TARGET 7%

FY 2006 RESULTS 8%

FY 2007 TARGET 7%

FY 2007 RESULTS 10%

FY 2008 TARGET 7%

FY 2008 RESULTS 6%

FY 2009 TARGET 7%

FY 2009 RESULTS

FY 2010 TARGET 7%

FY 2010 RESULTS

During FY 2008, the overall number of disclosures received by the agency rose to 530 from 482 in 

FY 2007. The number of referrals to agency heads and IGs dropped slightly. Therefore the 

percentage of disclosures referred dropped to 6%. The quality of the incoming disclosures is the 

major driver of the percent referred to agency heads.
FY 2008 Performance and Accountability Report 29

 

Part 3: Financial Section