5 U.S.C. 1214(e) states that,
If, in connection with any investigation under [5 U.S.C. 1214 or 1216], the Special Counsel determines that there is reasonable cause to believe that any violation of any law, rule, or regulation has occurred other than one referred to in subsection (b) or (d) [prohibited personnel practice requiring corrective action, or criminal violation], the Special Counsel shall report such violation to the head of the agency involved.
The Special Counsel shall require, within 30 days after the receipt of the report by the agency, a certification by the head of the agency which states
(1) that the head of the agency has personally reviewed the report; and
(2) what action has been or is to be taken, and when the action will be completed.
Essentially, we’re talking about the Special Counsel’s non-discretionary duty to report to the agency head, and then the public per 5 U.S.C. 1219(a)(3), that a violation of law occurred (“The Special Counsel shall maintain and make available to the public – (3) a list of matters referred to heads of agencies under subsection (e) of section 1214, together with certifications from heads of agencies under such subsection;”).
There’s been some wrangling back and forth between OSC and litigants about what falls under 1214(e). Apparently, OSC has interpreted this provision over 30 years ago to say that it doesn’t cover anything within its “enforcement jurisdiction” – e.g., any violations of prohibited personnel practices (PPPs) or other civil service violations, and that it has the discretion to report violations outside its jurisdiction – e.g., civil violations of say, environmental laws. Inexplicably though, in recent litigation, OSC, through DOJ, said that it does not have the authority to report violations outside its jurisdiction.
Litigants such as Joe Carson contend that OSC’s supposed statutory reading of 1214(e) is erroneous, and that OSC’s duty to report violations of its own civil service rules is clear: 1214(e) applies when OSC determines that a PPP exists/will take place/took place. Further, it has the discretion to determine if corrective action is required, and when it does so, OSC shall report the violation to MSPB, the agency, OPM, and possibly the President, pursuant to 1214(b)(2)(B). Doing so suffices to meet the requirements of 1214(e). Either way, reporting of some sort (either thru 1214(e) or 1214(b)(2)(B) in case of corrective action) has to take place when a PPP occurs.
Why is this important?
Well, to analogize to whistleblower disclosures under 5 U.S.C. 1213, when OSC reports that there was a violation of non-civil-service law, it catches the public’s attention:
Would a public report that an agency retaliated against a whistleblower or discriminated against a federal employee on the basis of favoritism catch on as much as the Air Force scandal did? Probably not, but it’s likely that a few hundred or even thousand such violations in a year would.
Which is why the Civil Service Reform Act of 1978 required the OSC to make such reports to the agency head and then make them available to the public, per 1219(a)(3). After all, whistleblower disclosures are made available on the OSC’s website here.
But where, on OSC’s website, or even in their physical files, is the public database for 1214(e) reports? And where’s the legal interpretation of 1214(e) that ostensibly allows OSC to escape its reporting mandate?