March 1, 2022

Henry Kerner, Special Counsel

US Office of Special Counsel (OSC)

1730 M St, NW

Washington, DC

Via: email to frliaison@osc.gov; hkerner@osc.gov; sullman@osc.gov

Subject: Comments on OSC’s federal register notice of proposed rules and their non-compliance

with section 1097(m) of NDAA of 2018

Dear Special Counsel Kerner,

I submit these comments per the relevant Federal Register notice.1

My two decades of public whistleblowing about four decades of continuing law-breaking at OSC

played a role in the enactment of Section 1097(m) of the National Defense Authorization Act of

2018, Pub.L. 115-91, on December 12, 2017.

By it, 

(1)

IN GENERAL.—Not later than 2 years after the date of enactment of this Act, the Special

Counsel shall prescribe such regulations as may be necessary to perform—

(A)

the functions of the Special Counsel under sub-chapter II of chapter 12 of title 5,

United States Code, including regulations that are necessary to carry out sections

1213, 1214, and 1215 of that title; and

(B)

any functions of the Special Counsel that are required because of the amendments

made by this section.

(2)

PUBLICATION.—Any regulations prescribed under paragraph (1) shall be published in

the Federal Register.

1

 See Federal Register Vol. 87, No. 21, Tuesday, February 1, 2022, pages 5409-5423. 

Perhaps because OSC knows these proposed regulations do not implement the requirements of

the 1097(m) of the NDAA of 2018, OSC did not issue a press release when they were issued. 

The deadline to submit comments is 3/2/2022, I learned of them, despite filing a whistleblower

disclosure about OSC’s failure to timely issue them, on 2/28/2022. So, yes, I am taking a day of

annual leave to prepare timely comments on them. 

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I have reviewed the proposed rules by which OSC apparently claims compliance with this

statutory requirement (even if more than two years overdue, given December 12, 2017 is when

the requirement was enacted). 

Basically, I think they reflect what I have been publicly claiming for decades - OSC is a decadeslong, law-breaking fraud of a federal law enforcement agency, possibly the most corrupt and

corrupting federal agency in since the enactment of the Constitution. 2

There is little, if anything, in the proposed regulations that demonstrate compliance with Section

1097(m) of the NDAA of 2018, i.e. “regulations that are necessary to carry out sections 1213,

1214, and 1215" of Title V of the US Code.3

Here is a (partial) list of requirements found in 5 U.S.C. §1213 that are unaddressed by the

proposed regulations:

1213(b) - How does OSC determine “substantial likelihood” the regulation should elaborate on

this crucial OSC duty and determination? What does it request of the agency head if it makes

such a determination?

1213(e) - how does the Special Counsel use the comments of the whistleblower in making his

“reasonable” determination about the agency head report?

1213(g)(1) - just who are “individuals” in this section? How does OSC respond to whistleblower

disclosures of such individuals? How does it enforce agency head compliance? How does this

section relate to the requirements of sections 1218 and 1219 for its Annual Reports and Public

Records?

1213(g)(2) - how does OSC make this determination? How does it enforce agency compliance?

How does this section related to the requirements of sections 1218 and 1219 for its Annual

Reports and Public Records?

1213(h) - how does OSC protect the confidentiality of the whistleblower? What criteria does

OSC use to determine it is necessary to reveal the identity of the whistleblower? Does OSC

2

 OSC is tiny, my claim is relative to its size - FTE-for-FTE, OSC is likely the most

corrupt and corrupting federal agency in our history.

3

 The proposed regulations do not even mention section 1097(m) as a reason they are

being proposed. If nothing else, should not the proposed regulations include the statutory

language of these sections of the law, so that OSC’s compliance with the proposed regulations

would be a method to demonstrate compliance with the statutes? What else can the words of the

law, “including regulations that are necessary to carry out sections 1213, 1214, and 1215 of that

title” mean?

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engage the whistleblower in such a decision?

1213(j) - how does OSC ensure it has personnel with relevant security clearances and/or the

required equipment to transmit and store such classified whistleblower disclosures? How do the

requirements of this section related to the requirements of sections 1218 for OSC’s Annual

Reports?

Here is a (partial) list of requirements found in 5 U.S.C. §1214 that are unaddressed by the

proposed regulations:

1214(a)(1)(A) - just how does OSC make and report - to the complainant, to the agency head, to

the President, and to Congress in its Annual Reports - when it determines there is “reasonable

grounds to believe” a PPP has occurred, exists or is to be taken?

1214(a)(1)(C) - what does OSC need to include in these periodic reports regarding its actions and

the investigation status?

1214(a)(1)(D) - what does OsC need to include of its proposed findings of fact and legal

conclusions?

1214(a)(2)(A) - what does OSC need to include about the relevant facts determined by OSC?

What does OSC need to do to respond to the comments of the complainant? What reason could

OSC have for terminating an investigation other than its determination there is are not

“reasonable grounds to believe” the alleged PPP occurred, exists or is to be taken, if not because

the complainant withdrew the complaint because of a settlement or other reason?

1214(a)(4) - how does OSC seek this consent? How can the complainant request OSC continue

to investigate if they file an appeal with MSPB before OSC has terminated its investigation?

1214(a)(5) - how does OSC implement this authority - to investigate if a pattern of PPPs in a

given agency or agency workplace - without any specific complainant from any specific person?

1214(b)(1)(E) - how does OSC ensure agency heads perform this duty?

1214(b)(2)(A) - how does OSC negotiate and document such an extension?

1214(b)(2)(B) - how does OSC implement this duty? How does OSC determine “corrective

action is required”? How does OSC make this report MSPB, the involved agency and OPM?

When might OSC also make this report to the President? How do these reporting requirements

get connected to sections 1218 and 1219 about OSC Annual Reports and Public Records?

1214(b)(2)(C) - how does OSC make a “reasonable time” determination?

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1214(b)(2)(D) - how does OSC make this report to MSPB?

1214(d) - how does OSC make this determination and report to the Department of Justice, the

involved agency, OPM and OMB? How does it coordinate with the Department of Justice if OSC

makes a positive PPP determination? How does this requirement get reported or documented in

OSC’s Annual Reports and/or public records per 1218 or 1219?

1214(e) - how does OSC implement this requirement?

1214 “termination statement” - how does OSC implement this requirement, including informing

the complainant of the existence of this requirement?

Here is a (partial) list of requirements found in 5 U.S.C. §1215 that are unaddressed by the

proposed regulations:

1215(a)(1)(C) - how does OSC make this determination about failure to comply with an MSPB

order?

1215(c) - how does this requirement get implemented? How does such a determination and

report get captured in OSC’s Annual Report or public records per 1218 or 1219?

Conclusion:

Mr. Kerner, I have previously expressed my opinion of your moral courage - inadequate for your

position of special trust to protect foolhardy federal agency employees as I, who put duty to

protect the public health, safety, security and welfare in our agency employment ahead of our

professional standing and economic security. 

Consistent with my opinion of your inadequate moral courage for your position, you have refused

to even inform me of the agency inspector general (IG) with which OSC has implemented the

MOU required by 5 U.S.C. §1212(ii) - so that I could bring my - undisputed by you or anyone

else - claims of decades of OSC’s continuing law-breaking to their attention. 

Respectfully,

______/s/_________

Joseph (Joe) Carson, PE, license no. 106350, Tennessee Engineering Board

Knoxville, TN

PS I invite you - or anyone - to file a misconduct complaint against me with my professional

engineer (PE) licensing authority in Tennessee if you or anyone at OSC can summon the moral

courage to claim my public statements, reports and testimony of decades of OSC law-breaking

and their harm to public health, safety, and welfare are less than “truthful and objective.” 

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