By law, 5 U.S.C. 1204(a)(3), one of MSPB’s duties is to
conduct, from time to time, special studies relating to the civil service and to other merit systems in the executive branch, and report to the President and to the Congress as to whether the public interest in a civil service free of prohibited personnel practices is being adequately protected.
There’s no question that studies exist “relating to the civil service and to other merit systems in the executive branch.” But has the MSPB, in its 33 year history, ever reported to the President and to the Congress as to “whether the public interest in a civil service free of prohibited personnel practices is being adequately protected”?
This was the subject of a 2007 lawsuit brought by Joe Carson, an 8-time prevailing whistleblower and Nuclear Safety Engineer at Oak Ridge National Laboratory (part of the Department of Energy). In his suit, Carson contended that MSPB has never abided by this requirement, and he sought a “writ of mandamus” from the court to compel MSPB to comply with this duty. MSPB, as represented by DOJ lawyers, responded by pointing to a multitude of MSPB studies and alleged that it has complied with this duty, stating
Each special study and the resulting report addresses an important aspect of the civil service, and provides some information about whether the public interest in a civil service free of prohibited personnel practices is being adequately protected. The federal government is a large organization and addressing the health of the merit systems is a complex undertaking. By conducting detailed studies of particular aspects of the merit systems and reporting the results of those studies to the President and to Congress, the Board is best able to use its necessarily limited resources to serve the public interest in a prohibited personnel practice free federal government. Simply put, the Board’s special studies and reports, which address comprehensive aspects of the federal civil service, individually and collectively meet the requirements of 5 U.S.C. § 1204(a)(3).
Unfortunately, the court did not consider the merits of this question as it found that it did not have jurisdiction to issue the writ of mandamus. Carson told this author that three other courts have reached the same conclusion.
The Board’s statutory studies function is also a significant part of the agency’s responsibility. Study reports issued by the Merit Systems Protection Board are highly regarded in the Federal human resources management community and by the stakeholders of the Board. If confirmed, I plan to work with my fellow board members as well as the Office of Policy and Evaluation to continue this record of excellence. In particular, I pledge to report to the President and the Congress as to whether the public interest in a civil service free of prohibited personnel practices is adequately protected.
In addition, in a December 2010 public MSPB meeting covering MSPB’s proposed research agenda for 2011-2013, Tom Devine of the Government Accountability Project relayed the following suggestions from the whistleblower community (audio beginning at 1:37:25):
- Concentrate on prohibited personnel practices in MSPB studies. OPM has the authority for merit system studies. Stick to those where MSPB is unique as much as possible.
- Study “systems” in Merit Systems Protection Board: the Federal Reserve, government corporations, White House agencies.
- Issue a study in the field on how merit systems operated during crises like Hurricane Katrina and the Gulf oil spill.
- Issue a study from the Board’s perspective of OSC’s track record and their contribution compared with due process routine of the Board.
- Issue a study on workplace violence, specifically sexual harassment.
However, the published research agenda makes no mention of issuing the special study to answer the question whether the public interest in a civil service free of prohibited personnel practices is adequately protected. Nor does it respond to Devine’s third point, if prohibited personnel practices contributed to the botched response to Hurricane Katrina or the Gulf oil spill, or even 9/11. Additionally, MSPB’s Draft 2012-2016 Strategic Plan is silent on issuing such a study.
Finally, and perhaps most importantly, why is this important? What would a report from MSPB regarding this issue look like?
Here’s one possible answer from Joe Carson:
“MSPB has determined that perception or realities of PPPs was a contributing factor to security vulnerabilities exploited by 9/11 terrorists/lax regulation by BP oil, etc. so therefore, the public interest in a civil service free of PPPs is not adequately protected”
“MSPB has determined that OSC is not properly interpreting and applying aspects of its nondiscretionary statutory duties to protect federal employees from PPPs, so the public interest in a civil service free of PPPs is not adequately protected.”