Office of Special Counsel
The Office of Special Counsel (OSC) is an independent investigative and prosecutorial agency that litigates before the Merit Systems Protection Board and primarily helps to enforce three federal statutes: the Civil Service Reform Act, the Whistleblower Protection Act, and the Hatch Act.
OSC’s main responsibilities are:
• investigating alleged prohibited personnel practices;
• interpreting and enforcing Hatch Act provisions on political activity; and
• operating a whistleblower disclosure hotline for federal employees to report wrongdoing in government.
The Special Counsel heads the OSC and is appointed by the President and confirmed by the Senate. The agency is headquartered in Washington, DC, and has field offices in Dallas, Detroit and San Francisco. OSC can be contacted at: 1730 M St., N.W., Suite 218, Washington, DC 20036-4505; phone: (202) 804-7000; https://osc.gov.
During the course of an investigation the Special Counsel may issue subpoenas, order the taking of depositions and require responses to written interrogatories. P.L. 115-91 of 2017 specified that OSC has the same authority to gather privileged material as agency inspectors general. Under that law, when OSC is conducting an investigation, review, or inquiry, agencies must timely provide OSC with access to all relevant material and agencies may not withhold material from OSC based on any common law privilege such as attorney-client privilege.
Prohibited Personnel Practice Complaints
While most federal employees and job applicants fall under OSC jurisdiction with regard to prohibited personnel practices (see Section 3 of this chapter for the list of those practices), there are exceptions. Employees of certain government corporations may file whistleblower complaints with OSC, but no other prohibited personnel practice complaints. Postal Service employees may file nepotism complaints with OSC, but no other kinds of complaints. Employees of most intelligence agencies, the Government Accountability Office, the Postal Regulatory Commission, and the Federal Bureau of Investigation are not within OSC jurisdiction.
Employees covered by a collective bargaining agreement must choose one of three avenues when pursuing a complaint of a prohibited personnel practice: an OSC complaint, an MSPB appeal, or a grievance under the collective bargaining agreement.
If an initial examination of a complaint shows a potentially valid claim, the matter will be sent to OSC’s investigation and prosecution division for field investigation. If a violation is found, the OSC may seek relief including:
• A stay of any personnel action. If the Special Counsel has reasonable grounds to believe that the proposed action is the result of a prohibited personnel practice, the OSC may ask the agency involved to delay the personnel action. If the agency does not agree to a delay, the OSC may then ask the MSPB to stay the action. The OSC cannot stay a personnel action on its own authority.
• Relief designed to make an employee whole. If an agency fails to remedy a prohibited personnel practice upon request by the OSC, corrective action may also be obtained through litigation before the MSPB. Such litigation begins with the filing of a petition by the OSC alleging that there are reasonable grounds to believe that a prohibited personnel practice has occurred, exists, or is about to occur. Corrective actions that can be ordered by the MSPB include job restoration, reversal of suspensions and other adverse actions, reimbursement of attorney’s fees, back pay, medical and other costs and damages.
• Disciplinary action against an employee who has committed a violation. The OSC may seek disciplinary action against any employee believed to be responsible for committing a prohibited personnel practice. The OSC begins a disciplinary action case by filing a complaint with the MSPB, charging an employee with the commission of a prohibited personnel practice, and seeking disciplinary action against that person. Rights of employees against whom the OSC seeks disciplinary action in these cases are at 5 CFR 1201 subpart D. Individuals found by the MSPB to have committed a prohibited personnel practice are subject to removal, reduction in grade, debarment from federal employment for up to five years, suspension, reprimand, or fine of up to $1,000. In the alternative, at any time during its investigation of a matter, the OSC may authorize the agency involved to take disciplinary action against an employee believed to be responsible for committing a prohibited personnel practice.
OSC offers mediation, as an alternative to investigation, in selected prohibited personnel practice cases. See Section 7 of this chapter.
Current or former federal employees and applicants for employment who have filed a matter with the OSC alleging actual or threatened reprisal for whistleblowing may have their allegation heard by the MSPB as an “individual right of action” appeal if OSC closes the matter after investigation, or if OSC does not seek corrective action within 120 days from receiving the complaint. If such an appeal is filed, The MSPB may not take into account OSC’s decision to terminate an investigation of a whistleblowing complaint without seeking corrective action. See Whistleblowing in Section 3 of this chapter.
The Special Counsel may participate in most proceedings before the MSPB but it may not intervene in certain proceedings, including Individual Right of Action cases, without the consent of the employee.
In general, employees in the Executive Branch including the Postal Service, whether in the competitive or the excepted service, are subject to certain political activity restrictions under the Hatch Act. Part-time and temporary employees are included. Certain employees, primarily in intelligence and law enforcement agencies, are under stricter prohibitions (see below). The law continues to apply to covered employees while they are on paid or unpaid leave, including furlough.
Exceptions from the law include employees paid from the appropriation for the office of the President and officials whose position is in the United States, who determine national policy and who are appointed by the President subject to Senate confirmation. These employees may engage in political activities while on duty, while in uniform, while in a government building, or while using a government vehicle. Also, employees who work on only an occasional or irregular basis, or who are special government employees, as defined in 18 U.S.C. 202(a), are subject to the restrictions only when they are engaged in government business.
Further, the Office of Personnel Management may grant a partial exemption from restrictions on participation in partisan local elections in the city of Washington, DC, certain communities in its immediate vicinity, or any other municipality in which most voters are federal employees. Affected employees may run in such elections, although only as independent candidates, and may participate in fundraising and certain other activities for others who are running as partisan candidates, within certain limits. See 5 CFR 733 for detailed policies and a listing of places where the exemption has been granted.
Note: Certain lesser restrictions apply to state and local employees if their principal employment is connected with an activity financed in whole with loans or grants made by a federal agency.
OSC investigates allegations of violations of the law and files complaints of violations with the MSPB. Potential penalties for a violation include reprimand, suspension, reduction in grade, a civil penalty of up to $1,000, removal from federal employment, debarment from federal employment for up to five years or a combination.
Guidance on Hatch Act-related issues such as the distinctions between partisan and nonpartisan elections, coverage of specialized occupations, the use of social media (see below), and other issues is at https://osc.gov/Pages/HatchAct.aspx and advisory opinions are at https://osc.gov/pages/advisory-opinions.aspx.
Generally Permissible and Impermissible Activities—Most employees may: run as candidates for public office in non-partisan elections; register and vote as they choose; assist in voter registration drives; express opinions about candidates and issues; contribute money to political organizations; attend political fundraising functions; attend and be active at political rallies and meetings; join and be an active member of a political party or club; sign nominating petitions; campaign for or against referendum questions, constitutional amendments and municipal ordinances; campaign for or against candidates in partisan elections; distribute campaign literature in partisan elections, and hold office in political clubs or parties.
Under the law, employees may not: use their official authority or influence to interfere with an election; solicit, accept, or receive political contributions unless both the donor and solicitor are members of the same federal labor organization or employee organization, the one solicited is not a subordinate employee and the contribution is for the organization’s multi-candidate political committee; knowingly solicit or discourage the political activity of any person who has business before the agency; be candidates for public office in partisan elections; or, while on duty, in any government office, while wearing an official uniform or while using a government vehicle engage in activities (including sending e-mails or posting on social media as described below, or wearing, displaying or distributing items) that advocate for or against a political party, partisan political group or candidate for partisan public office. (Note: Effective March 5, 2018, President Trump is considered a candidate for these purposes; see https://osc.gov/News/pr-18-23.pdf).
Employees Subject to Tighter Restrictions—Stricter prohibitions against engaging in partisan political activity apply to what are called “further restricted” employees, including: career Senior Executive Service employees as well as employees of the Federal Election Commission, FBI, Secret Service, CIA, National Security Council, National Security Agency, Defense Intelligence Agency, Merit Systems Protection Board, Office of Special Counsel, Office of Criminal Investigations in the Internal Revenue Service, Central Imagery Office, the Office of Investigative Programs of the United States Customs Service, Office of Law Enforcement at the Bureau of Alcohol, Tobacco, Firearms and Explosives, Criminal Division of the Justice Department, administrative law judges, and Contract Appeals Board members.
These employees may: register and vote as they choose; express opinions publicly and privately on all political subjects and candidates; display a political sign in their yard; display a partisan bumper sticker on their privately-owned vehicle (when the vehicle is regularly used for work purposes, the bumper sticker should be covered—this applies to all federal employees); make a political contribution to a candidate or political party; accept appointment to a public office; participate in a non-partisan election either as a candidate or in support of a candidate; serve as an election official for the city or county; be politically active in connection with an issue not specifically identified with a political party; participate in the non-partisan activities of a civic, community, social, labor, professional, or similar organization; attend a political convention, rally, fundraiser as a spectator; sign petitions; petition Congress to express a point of view on legislation.
However, those employees may not: be candidates for public office in partisan elections; campaign for or against a candidate in a partisan election; serve as an officer of a political party; solicit, accept, or receive political contributions; sell tickets to or organize a partisan political fundraiser; take an active part in managing the political campaign of a partisan candidate for public or party office; work at the polls on behalf of a partisan candidate or political party; distribute campaign material; serve as a delegate, alternate, or proxy to a political party convention; address a convention, rally, caucus, or similar gathering of a political party in support of or in opposition to a partisan candidate for public office or political office; use a personal automobile to drive voters to the polls on behalf of a political party or partisan candidate.
Electronic Communications/Social Media—OSC policy is that merely receiving a partisan political e-mail while at work, does not constitute prohibited political activity. An employee who receives such an e-mail may forward it to a personal address, but must not send the e-mail to others while on duty or at work, even from a personal address. Similarly, OSC policy is that if someone else posts a link on an employee’s social media profile to the contribution page of a political party, partisan candidate, or partisan political group, or otherwise solicits political contributions, the employee does not need to remove it but also should not respond in any way that would tend to encourage readers to donate.
Employees may include their official titles or positions and where they work in their social media profiles, even if they also include their political affiliation or otherwise use their account to engage in political activity.
At all times, employees may not: post or tweet a message that solicits political contributions or invites people to a fundraising event; like, share, or retweet a post that solicits political contributions, including invitations to fundraising events; may accept invitations to, or mark themselves as attending a fundraising event on social media; use an alias on social media to solicit a political contribution for a political party, candidate in a partisan race, or a partisan political group; use their official titles or positions when posting messages directed at the success or failure of a political party, candidate in a partisan race, or partisan political group; use a social media account designated for official purposes to post or share messages directed at the success or failure of a political party, candidate in a partisan race, or partisan political group; engage in political activity on a personal social media account if they are using such accounts for official purposes or posting in their official capacities; or send to subordinates, or to a subset of friends that includes subordinates, any message that is directed at the success or failure of a political party, candidate in a partisan race, or partisan political group.
In addition, while on duty or in the workplace employees may not: post, like, share, or retweet a message or comment in support of or opposition to a political party, candidate in a partisan race, or partisan political group, even if their social media account is private; like, follow, or friend the social media account of a political party, candidate in a partisan race, or partisan political group; use an alias on social media to engage in any activity that is directed at the success or failure of a political party, candidate in a partisan race, or partisan political group; or post, share, tweet, or retweet a political party or current campaign logo or the photograph of a candidate in a partisan race as a profile picture on personal Facebook or Twitter accounts.
“Further restricted” employees may not at any time: share or retweet posts from, or the page of, a political party, candidate in a partisan race, or partisan political group; or link to campaign or other partisan material of a political party, candidate in a partisan race, or partisan political group. So long as they are not on duty or at the workplace they may: post to or like the social media accounts or messages of a political party, candidate in a partisan race, or partisan political group; and personally advocate for the election or defeat of a candidate, provided it is not done in concert with or on behalf of a political party, candidate in a partisan race, or partisan political group.
Whistleblower Disclosure Hotline
The OSC provides a secure channel through which federal employees and former employees (and job applicants) can disclose evidence of a violation of law, rule or regulation, gross mismanagement, gross waste of funds, an abuse of authority, or a substantial and specific danger to public health or safety. Employees who want to make such disclosures can call the hotline at (800) 872-9855 or (202) 804-7000. The OSC guarantees confidentiality.
If the OSC determines that there is a substantial likelihood of wrongdoing, it can order the head of the agency concerned to conduct an investigation, and to provide a report of that investigation to the OSC. The report of investigation, with any comments by the Special Counsel and the employee whose disclosure led to the inquiry, is then sent to the President and Congress.
Other OSC Responsibilities
Under the Uniformed Services Employment and Re-Employment Rights Act of 1994, the OSC has authority to investigate and prosecute cases involving the denial of employment or re-employment rights to veterans and reservists seeking to return to the federal workplace after active duty with the armed services. USERRA complaints against federal agencies normally are first filed with the Labor Department’s Veterans Employment and Training Service; if after investigation that agency is unable to resolve a complaint, a claimant may request referral to the OSC for possible representation before the Merit Systems Protection Board. Under some circumstances the OSC does the initial investigation.
Also, the OSC is authorized to investigate: activities prohibited by any civil service law, rule or regulation; allegations of arbitrary or capricious withholding of information under the Freedom of Information Act; and involvement by any employee in any prohibited discrimination found by a court or administrative authority to have occurred in the course of a personnel action. The Special Counsel also supports efforts to educate federal employees about their rights and remedies in connection with prohibited personnel practices, and about the rights and restrictions of the Hatch Act.
Requests for assistance in connection with allegations of prohibited personnel practices, and requests for the appropriate forms, should be directed to the Prohibited Personnel Practices Unit, Office of Special Counsel, 1730 M St. N.W., Suite 218, Washington, DC 20036-4505, (800) 872-9855 and (202) 804-7000.
Inquiries about the Hatch Act may be made in writing or by phone: Hatch Act Unit, same address, phone (800) 854-2824, (202) 804-7002. Requests for Hatch Act advisory opinions may be made by e-mail to email@example.com.
Disclosures of violations of law, rule or regulation, gross mismanagement, gross waste of funds, abuse of authority, or a danger to public health or safety may be reported in confidence to (and the appropriate form requested from): Disclosure Unit, same address, phone (800) 872-9855, (202) 804-7000.
Questions about the Uniformed Services Employment and Re-Employment Rights should be directed to: USERRA Coordinator, same address, phone (202) 804-7022; e-mail firstname.lastname@example.org.
The San Francisco Bay Area Field Office can be reached at: 1301 Clay St., Suite 1220N, Oakland, CA 94612-5217; phone (510) 598-2065; fax (510) 637-3474. The Midwest Field Office can be reached at: 211 West Fort St., Suite 521, Detroit, MI 48226; phone (313) 335-8085; fax (313) 226-5606. The Dallas Field Office can be reached at: 525 Griffin St., Room 824, Box 103, Dallas, TX 75202; phone (214) 974-7075; fax (214) 767-2764. Also see www.osc.gov.