00-20671. Filing Complaints of Prohibited Personnel Practice or Other Prohibited Activity; Filing Disclosures of Information

AGENCY:

Office of Special Counsel.

ACTION:

Proposed rule; public comment period.

SUMMARY:

The U.S. Office of Special Counsel (OSC) proposes to revise its regulations to: Provide basic information about OSC jurisdiction over complaints of improper employment practices, and over disclosures of information of wrongdoing in federal agencies (also known as “whistleblower disclosures”); implement a requirement that complaint filers use an OSC form (Form OSC-11, “Complaint of Possible Prohibited Personnel Practice or Other Prohibited Activity”) to submit allegations of improper employment practices (other than alleged Hatch Act violations); outline procedures to be followed by OSC when filers submit complaints (other than Hatch Act allegations) in formats other than an OSC complaint form (Form OSC-11); revise and update descriptions of information needed by OSC to process both complaints alleging Hatch Act violations and whistleblower disclosures; and update contact information for sending complaints and disclosures to OSC, and for obtaining OSC complaint and disclosure forms. Current and former Federal employees, employee representatives, other Federal agencies, and the general public are invited to comment on the proposed regulatory revisions.

DATES:

Submit comments by October 16, 2000.

ADDRESSES:

Any comments about this proposed regulatory change should be sent by mail to Kathryn Stackhouse, Attorney, Planning and Advice Division, U.S. Office of Special Counsel, 1730 M Street, NW, Suite 300, Washington, DC 20036-4505, or by facsimile to Ms. Stackhouse at [phone].

FOR FURTHER INFORMATION CONTACT:

Kathryn Stackhouse, Attorney, Planning and Advice Division, by mail at the address shown above, or by telephone at [phone]. The proposed regulatory change will also be available for review on OSC's Web site (at www.osc.gov).

SUPPLEMENTARY INFORMATION:

Current OSC regulations, at 5 CFR 1800.1, describe information needed by OSC to process complaints alleging improper employment practices (including prohibited personnel practices defined at 5 U.S.C. 2302(b), other violations of law defined at 5 U.S.C. 1216, and violations of the Hatch Act under chapters 15 and 73 of title 5). OSC regulations at 5 CFR 1800.2 describe information needed by OSC to process whistleblower disclosures. The regulations permit complaints or disclosures to be submitted in any written form, and specify an OSC address to which such matters should be sent. OSC proposes to revise § § 1800.1 and 1800.2 for the purposes outlined in the Summary section, above. A brief explanation of each purpose follows:

(1) Provide basic information about OSC jurisdiction over complaints of improper employment practices and whistleblower disclosures. Sections 1800.1 and 1800.2 outline procedures for filing complaints and disclosures, with no reference to OSC's basic jurisdiction. The regulatory revision proposed in this notice would provide jurisdictional information in each section, as an aid to persons considering the filing of a complaint or disclosure with OSC.

(2) Implement a requirement that complaint filers use an OSC complaint form to submit allegations of improper employment practices (other than alleged Hatch Act violations). Most complaints received by OSC consist of allegations of improper employment practices other than Hatch Act violations. Section 1800.1, at subsecs. (b)(1)-(6), outlines the types of information that should be provided in a complaint, and indicates that complaints can be submitted in any written format. Given this latitude, there have been considerable disparities in the way complaint information is presented to OSC.

OSC recently revised its complaint form, which—along with a revised OSC form for whistleblower disclosures—is awaiting clearance by the Office of Management and Budget (OMB) under the Paperwork Reduction Act (PRA). See 65 FR 41512 (July 5, 2000). The revised form consists of standard questions seeking factual information of the kind outlined in the current OSC regulation. It also contains several enhancements, including information for potential filers about: (a) Agencies and employees outside OSC's jurisdiction; (b) election of remedies; (c) OSC deferral policies in cases involving certain discrimination and veterans rights claims; (d) legal elements required for OSC to establish reprisal for whistleblowing (investigation of which is a high priority); and (e) appeal rights to the Merit Systems Protection Board (MSPB, or “the Board”) in connection with whistleblower reprisal allegations.

Mandatory use of the OSC form, rather than any written format chosen by a filer, would help to: (a) Enable complainants to obtain useful information about OSC jurisdiction and procedures before filing the complaint; (b) produce more consistent, effective, and reliable presentations of facts needed by OSC to review, follow up on, and investigate complaints of improper employment practices; and (c) make more efficient use of OSC's limited resources, by reducing the time spent by staff in answering threshold questions about jurisdiction and procedures, and in soliciting basic information about allegations in complaints.

OSC also believes that mandatory use of the redesigned form by persons alleging reprisal for whistleblowing would benefit those filers and OSC during the complaint process, as well as complainants who later seek corrective action later in Individual Right of Action (IRA) appeals to the Board under 5 U.S.C. 1221. The complaint form was redesigned, in part, to provide filers (before and while filing a complaint) with a better understanding of the elements of a whistleblower reprisal claim, and to facilitate OSC's review of such claims.

Also, under 5 U.S.C. 1214(a)(3), complainants who file whistleblower reprisal allegations with OSC may file an IRA with the Board if: (a) OSC notifies them that it is closing the matter, or (b) 120 days have passed without notification by OSC that it will seek corrective action on their behalf. In such cases, MSPB has jurisdiction over only those disclosures and personnel actions reported in the prior OSC complaint. OSC's redesign of its complaint form included consultation with MSPB, in an effort to provide appellants in IRA cases with a consistent mechanism by which to identify the disclosures and personnel actions first reported to OSC. The revised form includes a section (Part 2) in which complainants alleging reprisal for whistleblowing would identify the key components of the allegation (description of the disclosure, person to whom disclosure was made, date of the disclosure, and personnel action(s) taken or threatened because of the disclosure), along with other information pertinent to the allegations. Part 2 of Form OSC-11 has been designed to be a segregable part of the complaint form, a copy of which can be submitted by appellants to the MSPB in IRA cases as evidence of the disclosures and personnel actions submitted to OSC.

In the comparatively small number of cases in which complainants report new disclosures or personnel actions while their initial complaint is pending, OSC will, at its discretion, require filers to submit a report of these events in the Part 2 format; alternatively, OSC will document the events in the Part 2 format, and furnish a copy of that record to the complainant if and when OSC closes the matter without seeking corrective action.

By mandating use of the complaint form, filers alleging reprisal for whistleblowing can make and retain a copy of Part 2 of the form for submission to the Board, as evidence of the required jurisdictional elements in an IRA case. Upon clearance of the revised form under the Paperwork Reduction Act, it will be placed on OSC's Web site (at www.osc.gov), for printing by prospective complaint filers and submittal to OSC (pending OSC's anticipated development of electronic filing procedures).

(3) Outline procedures to be followed by OSC when filers submit complaints (other than Hatch Act allegations) in formats other than an OSC complaint form (Form OSC-11). The revision of § 1800.1 proposed in this notice would provide that if a person uses a format other than the required OSC form to file a complaint (other than a Hatch Act allegation), the material submitted will be returned to the filer with a blank Form OSC-11 to fill out and return to OSC. Processing of the complaint will begin upon OSC's receipt of a completed Form OSC-11.

(4) Revise and update descriptions of information needed by OSC to process both complaints alleging Hatch Act violations and whistleblower disclosures. OSC proposes to continue to permit filers of complaints alleging Hatch Act violations, and filers of whistleblower disclosures, to submit such matters to OSC in any written format. (Possible written formats include OSC's complaint and disclosure forms—Forms OSC-11 and OSC 12, respectively). Sections 1800.1 and 1800.2 currently describe information needed by OSC to review and evaluate complaints and disclosures. The proposed revision of § 1800.1 tailors the description to Hatch Act allegations for filers who submit such matters in formats other than an OSC complaint form. The proposed revision of § 1800.2 updates the description of information needed in whistleblower disclosures to OSC, for filers who submit them in formats other than an OSC disclosure form.

(5) Update contact information for sending complaints and disclosures to OSC, and for obtaining OSC complaint and disclosure forms. Since OSC's current regulations were published, its mailing address for complaints and disclosures has changed, and a Web site has been established at which many OSC forms and publications are made available to the public. The proposed revision of § § 1800.1 and 1800.2 updates both sections with current mailing and Web site address information.

Procedural Determinations

Regulatory Flexibility Act Certification (5 U.S.C. 605): As acting head of the agency, I certify that this proposed revision to current regulations will not have a significant economic impact on a substantial number of small entities. The OSC primarily handles matters involving individuals who are current or former Federal government employees, applicants for federal employment, certain state or local government employees, and representatives of these individuals. These revised regulations affect only the provision of additional information about filing a complaint with OSC and require a form to be used for certain complaints, which form requests substantially the same information as that required to be provided in current regulations.

Paperwork Reduction Act (PRA): OSC has submitted modified versions of Forms OSC-11 and OSC-12 to OMB for extension of its approval (with change) of the forms previously approved under the PRA (OMB Control Number 3255-0002). OMB approval for the current version of both forms expires on August 31, 2000. The modified forms include the following proposed changes: (1) Style, format, and other minor revisions that do not appear to impose significant new burdens, such as requests for fax numbers, e-mail addresses, and details of certain allegations in a different format; (2) addition of explanatory information about OSC jurisdiction, elements required to prove some claims, and certain procedural rights; and (3) description of new and revised Privacy Act routine uses published after the prior OMB approval. Notices, and a summary description of proposed modifications to the forms, were published in the Federal Register at 65 FR 20504 (April 17, 2000) and 65 FR 41512 (July 5, 2000). The forms proposed for approval are available by contacting OSC, or on the agency Web site at www.osc.gov.

Unfunded Mandates Reform Act (UMRA): This proposed revision does not impose any Federal mandates on State, local, or tribal governments, or on the private sector within the meaning of the UMRA.

National Environmental Policy Act (NEPA): This proposed revision would not have any significant impact on the environment under NEPA.

Executive Order 12630 (Government Actions and Interference with Constitutionally Protected Property Rights): This proposed revision is not a policy that has taking implications under Executive Order 12630.

Executive Order 12866 (Regulatory Planning and Review): This proposed revision is not a significant regulatory action under § 3(f) of Executive Order 12866 and does not require an assessment of potential costs and benefits under § 6(a)(3) of Executive Order 12866. OSC anticipates that the economic impact of this revision will be insignificant. The revision simply provides additional information about OSC jurisdiction and procedures, and requires use of a form by some complaints to collect information already specified in current OSC regulations.

Executive Order 12988 (Civil Justice Reform): This proposed rule meets applicable standards of § § 3(a) and 3(b)(2) of Executive Order 12988.

Executive Order 13045 (Protection of Children from Environmental Health Risks and Safety Risks): This proposed revision is not economically significant under Executive Order 12866 and does not concern an environmental health or safety risk to children.

Executive Order 13132 (Federalism): This proposed revision does not have new federalism implications under Executive Order 13132. The Hatch Act, at title 5 of the U.S. Code, chapter 15, prohibits certain political activities of covered state and local government employees. The OSC has jurisdiction to issue advisory opinions on political activity by those employees, and to bring an enforcement action before the Merit Systems Protection Board for prohibited activity by a covered state or local government employee. However, this proposed revision does not substantively affect the rights of state and local government employees. Rather, it provides additional information on OSC jurisdiction, and prohibited political activity.

List of Subjects in 5 CFR Part 1800

• Administrative practice and procedure
• Government employees
• Investigations
• Law enforcement
• Political activities (Government employees)
• Reporting and recordkeeping requirements
• Whistleblowing

For the reasons stated in the preamble, OSC proposes to amend 5 CFR part 1800 as follows:

PART 1800—FILING OF COMPLAINTS AND DISCLOSURES

1. The heading for part 1800 is revised as set forth above:

2.-3. The authority citation for Part 1800 continues to read as follows:

Authority: 5 U.S.C. 1212(e).

4. Section 1800.1 is revised to read as follows:

§ 1800.1

Filing complaints of prohibited personnel practices or other prohibited activities.

(a) The Office of Special Counsel (OSC) has investigative jurisdiction over the following prohibited personnel practices against current or former Federal employees and applicants for Federal employment:

(1) Discrimination, including discrimination based on marital status or political affiliation (see § 1810.1 of this chapter for information about OSC's deferral policy);

(2) Soliciting or considering improper recommendations or statements about individuals requesting, or under consideration for, personnel actions;

(3) Coercing political activity, or engaging in reprisal for refusal to engage in political activity;

(4) Deceiving or obstructing anyone with respect to competition for employment;

(5) Influencing anyone to withdraw from competition to improve or injure the employment prospects of another;

(6) Granting an unauthorized preference or advantage to improve or injure the employment prospects of another;

(7) Nepotism;

(8) Reprisal for whistleblowing (whistleblowing is generally defined as the disclosure of information about a Federal agency by an employee or applicant who reasonably believes that the information shows a violation of any law, rule, or regulation; gross mismanagement; gross waste of funds; abuse of authority; or a substantial and specific danger to public health or safety);

(9) Reprisal for:

(i) Exercising certain appeal rights;

(ii) Providing testimony or other assistance to persons exercising appeal rights;

(iii) Cooperating with the Special Counsel or an Inspector General; or

(iv) Refusing to obey an order that would require the violation of law;

(10) Discrimination based on personal conduct not adverse to job performance;

(11) Violation of a veterans' preference requirement; and

(12) Taking or failing to take a personnel action in violation of any law, rule, or regulation implementing or directly concerning merit system principles at 5 U.S.C. 2302(b)(1).

(b) OSC also has investigative jurisdiction over allegations of the following prohibited activities:

(1) Violation of the Federal Hatch Act at title 5 of the U.S. Code, chapter 73, subchapter III;

(2) Violation of the state and local Hatch Act at title 5 of the U.S. Code, chapter 15;

(3) Arbitrary and capricious withholding of information prohibited under the Freedom of Information Act at 5 U.S.C. 552, (except for certain foreign and counterintelligence information);

(4) Activities prohibited by any civil service law, rule, or regulation, including any activity relating to political intrusion in personnel decisionmaking;

(5) Involvement by any employee in any prohibited discrimination found by any court or appropriate administrative authority to have occurred in the course of any personnel action (unless the Special Counsel determines that the allegation may be resolved more appropriately under an administrative appeals procedure); and

(6) Violation of uniformed services employment and reemployment rights under 38 U.S.C. 4301, et seq.

(c) Complaints of prohibited personnel practices or other prohibited activities within OSC's investigative jurisdiction should be sent to: U.S. Office of Special Counsel, Complaints Examining Unit, 1730 M Street, NW, Suite 201, Washington, DC 20036-4505.

(d) Complaints alleging a prohibited personnel practice, or a prohibited activity other than a Hatch Act violation, must be submitted on Form OSC-11 (“Complaint of Possible Prohibited Personnel Practice or Other Prohibited Activity”).

(1) The form includes a section (Part 2) that must be completed in connection with allegations of reprisal for whistleblowing, including identification of:

(i) Each disclosure involved;

(ii) The date of each disclosure;

(iii) The person to whom each disclosure was made; and

(iv) The type and date of any personnel action that occurred because of each disclosure.

(2) If a complainant who has alleged reprisal for whistleblowing seeks to supplement a pending OSC complaint by reporting a new disclosure or personnel action, then, at OSC's discretion:

(i) The complainant will be required to document the disclosure or personnel action in the Part 2 format, or

(ii) OSC will document the disclosure or personnel action in the Part 2 format, a copy of which will be provided to the complainant upon OSC's closure of the complaint.

(e) Complaint forms are available by writing to OSC at the address shown in paragraph (c) of this section; by calling OSC at (1) [phone]; or by printing it from OSC's Web site (at www.osc.gov).

(f) Except for complaints alleging only a Hatch Act violation, OSC will not process a complaint submitted in any format other than a completed Form OSC-11.

(g) Complaints alleging only a Hatch Act violation may be submitted in any written form to the address shown in paragraph (c) of this section, but should include:

(1) The name, mailing address, and telephone number(s) of the complainant(s), and a time when the person(s) making the disclosure(s) can be safely contacted, unless the matter is submitted anonymously;

(2) The department or agency, location, and organizational unit complained of; and

(3) A concise description of the actions complained about, names and positions of employees who took these actions, if known to the complainant, and dates, preferably in chronological order, together with any documentary evidence the complainant may have.

5. Section 1800.2 is revised to read as follows:

§ 1800.2

Filing disclosures of information.

(a) OSC is authorized by law (at 5 U.S.C. 1213) to provide an independent and secure channel for use by current or former federal employees and applicants for Federal employment in disclosing information that they reasonably believe shows wrongdoing by a Federal agency. The law requires OSC to determine whether there is a substantial likelihood that the information discloses a violation of any law, rule, or regulation; gross mismanagement; gross waste of funds; abuse of authority; or a substantial and specific danger to public health or safety. If so, OSC must refer the information to the agency head involved for investigation and a written report on the findings to the Special Counsel. The law does not give OSC jurisdiction to investigate the disclosure.

(b) Employees, former employees, or applicants for employment wishing to file a whistleblower disclosure with OSC should send the information to: U.S. Office of Special Counsel, Disclosure Unit, 1730 M Street, NW, Suite 201, Washington, DC 20036-4505.

(c) A disclosure of the type of information described in paragraph (a) of this section should be submitted in writing, using any of the following formats:

(1) Filers may use Form OSC-12 (“Disclosure of Information”), which provides more information about OSC jurisdiction and procedures for processing whistleblower disclosures. This form is available from OSC by writing to the address shown in paragraph (b) of this section; by calling OSC at (1) [phone]; or by printing it from OSC's Web site (at www.osc.gov).

(2) Filers may use another written format, but the submission should include:

(i) The name, mailing address, and telephone number(s) of the person(s) making the disclosure(s), and a time when that person(s) can be safely contacted by OSC;

(ii) The department or agency, location and organizational unit complained of; and

(iii) A statement as to whether the filer consents to the disclosure of his or her identity to the agency by OSC in connection with any referral to the appropriate agency.

Dated: August 8, 2000.

Timothy Hannapel,

Acting Special Counsel.