A powerpoint presentation that seems to originate from Office of Special Counsel surfaced online recently, containing information that raises questions about the way OSC processes whistleblower disclosures.
The document, titled “Whistleblower Disclosures: Reporting Allegations of Agency Wrongdoing to the Office of Special Counsel,” bears the names of Catherine McMullen and Karen Gorman, the Chief and Deputy Chief of the Disclosure Unit, and is dated September 13-15, 2011.
The document begins by offering basic information on what whistleblowing is and who may disclose information to OSC. It then defines “substantial likelihood,” the standard required for OSC to refer the disclosure to the relevant agency for self-investigation.
The definition states,
Substantial likelihood is defined as the determination that the agency is more likely than not to find the allegation substantiated at the conclusion of its investigation.
The document does not elaborate how OSC makes the determination whether the agency is likely to substantiate the allegations. The definition notably does not state whether wrongdoing more likely than not happened, but whether the agency is more likely than not to substantiate it.
Given that agencies have an institutional interest in avoiding negative repercussions associated with an admission of wrongdoing, and some agencies may be less forthcoming than others, it is difficult to imagine how this definition can be applied objectively and consistently. Further, the definition assumes the good-faith cooperation of the agency under scrutiny.
The document also contains the factors OSC uses in making the substantial likelihood determination:
- Is the whistleblower reliable?
- Is the whistleblower in a position to know the facts?
- Is the disclosure plausible?
- Does the whistleblower have first hand knowledge of facts alleged?
- Has the whistleblower provided reliable inofrmaion [sic] to OSC in the past?
These factors are troubling because there is significant emphasis on judging the messenger rather than the message. The terms “reliable” and “plausible” are vague and undefined and thus can be manipulated to throw out otherwise meritorious disclosures.
This would be especially pernicious in situations where whistleblowers who approach OSC have undergone trauma, which can cause shifts in narrative as the whistleblower attempts to reintegrate previously-blocked recollections.
In order to seek more information on how these definitions and factors came about, MSPB Watch and WhistleWatch.org made a Freedom of Information Act request to OSC. We will make this information available to the public upon our review.