U.S. Office of Special Counsel: Strategy for Reducing Persistent Backlog of Cases Should Be Provided to Congress
Published: 2004-03-08T00:00:00

Fast Facts:

Highlights:
section_title: Why GAO Did This Study
paragraphs: 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.
section_title: What GAO Found
paragraphs: 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. 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.

section_title: Letter
paragraphs: 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.  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  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.
subsections: section_title: Background
paragraphs: 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: 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 240- day 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).  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.
Unless the agency has found evidence of a criminal violation, OSC provides  the whistleblower with a copy of the agency report for comment.
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.
OSC’s authority comes from five federal statutes: the Civil Service Reform  Act of 1978, the Whistleblower Protection Act of 1989, the Hatch Act,Office of Special Counsel Reauthorization Act of 1994, and the Uniformed  Services Employment and Reemployment Rights Act of 1994,as described  in table 1.
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.
section_title: Caseload Has Consisted Mainly of Prohibited Personnel Practices Cases, and a Large Increase in Whistleblower Disclosure Cases Occurred After September 11, 2001
paragraphs: 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).
OSC officials could not tell us with any certainty the reasons for the year-to- year 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  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.
section_title: 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
paragraphs: 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.  The percentage of whistleblower  cases in backlog was always extremely high—95 to 97 percent.
subsections: section_title: OSC’s Record in Meeting Statutory Time Limits for Processing Prohibited Personnel Practices and Whistleblower Disclosure Cases Differed Greatly
paragraphs: 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.
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.
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,(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.
section_title: OSC Has Backlog in Prohibited Personnel Practices and Whistleblower Disclosure Cases
paragraphs: 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  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 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.
section_title: Agency Data Indicate Attempts to Handle Caseload More Efficiently Have Had Salutary Effects
paragraphs: 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.
subsections: section_title: Merger of Investigative, Legal Divisions and Adoption of Streamlined Procedures Increased Productivity
paragraphs: In June 2001, OSC merged its investigators and attorneys, who had been in  two separate divisions, into three parallel divisions in an attempt to (1)  foster a closer and more effective coordination of strategy between  attorneys and investigators, (2) produce a more efficient case-handling  procedure geared to helping the agency process cases within existing  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.
section_title: Adoption of Priority System Enabled Agency to Process Certain Higher Priority Cases Faster
paragraphs: 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.
section_title: Agency Says Existing Resources Are Inadequate, But It Is Not Clear How Additional Resources Would Help Alleviate Backlogs
paragraphs: 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.
subsections: section_title: Claim that Budget for Staff Has Not Kept Pace with Caseload Does Not Fully Explain OSC’s Case Processing Record
paragraphs: 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 full- time 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.
section_title: Meeting 15-day Limit for Whistleblower Disclosure Cases Is Difficult, But OSC Has Not Proposed an Alternative Time Limit
paragraphs: 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.
section_title: While OSC Reports to Congress and OMB Specify Some Reasons for Case Processing Difficulties, These Reports Have Not Proposed Solutions to Them
paragraphs: 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 15- day limit or to reduce the number of backlogged whistleblower disclosure  cases.
Strategic workforce planning—planning that focuses on developing long- term 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.  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.
section_title: Conclusion
paragraphs: 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.
section_title: Recommendation for Executive Action
paragraphs: We recommend 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.
section_title: Agency Comments
paragraphs: 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.
section_title: OSC’s Data Tracking System and Privacy Protection Policies
subsections: section_title: Privacy Protection Policies
paragraphs: 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.  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  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 highly- sensitive national security information. (5 U.S.C., § 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.  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.
section_title: Scope and Methodology
paragraphs: 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  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.
section_title: Organization of the Office of Special Counsel
paragraphs: 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.  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  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.
section_title: Comments from the Office of Special Counsel
section_title: GAO Contact and Staff Acknowledgments
subsections: section_title: GAO Contact
section_title: Acknowledgments
paragraphs: In addition to the person named above, Karin Fangman, Sharon Hogan,  Michael Rose, and Greg Wilmoth made key contributions to this report.
section_title: GAO’s Mission
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subsections: section_title: Order by Mail or Phone
section_title: To Report Fraud, Waste, and Abuse in Federal Programs
section_title: Public Affairs