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Tough Task Of Protecting America's Whistleblowers


I'm Michel Martin, and this is TELL ME MORE from NPR News.

Coming up, we have a couple of stories about the way this country is changing and the growing pains and opportunities in this increasingly diverse country. In a few minutes, we'll tell you about a Mexican-American studies program that's under fire. Its supporters say it offers a different perspective on U.S. history, but critics say it promotes resentment toward other races. That's coming up.

But we'll also tell you about an athlete training for the Olympics who's getting noticed for her skills and something else. That's all later.

But first, a newsmaker interview with the person charged by the U.S. government with a broad mandate to investigate waste and wrongdoing, including employment discrimination and protecting the whistleblowers who allege it. The agency is called The U.S. Office of Special Counsel.

The problem is that for many years the agency had a reputation for being ineffective and, in some cases, for perpetuating some of the wrongdoing it was supposed to fight. But in June of 2011, Carolyn Lerner was tapped to head the office in one of the most high-profile cases of her first six months on the job. She took on a four-star Air Force general to the mat for the mishandling of soldier remains. A result that earned her an extensive profile in one of the country's most important media outlets, The Washington Post.

And Carolyn Lerner joins us now to tell us more about what she hopes to accomplish and hopefully herself. Welcome, thank you for joining us and Happy New Year to you.

CAROLYN LERNER: Thank you, Michel.

MARTIN: The Post, as we said, recently ran an extensive profile of you. And in it you said that the U.S. Office of Special Counsel is, quote, "the best kept secret in the federal government." What did you mean by that?

LERNER: Well, the Office of Special Counsel, we call it the OSC, is a really small agency. We have just over 100 employees, but we're responsible for the entire federal government. And not enough people really know who we are or what we do. But it's not just that we're not well known, but we have a really important mission.

We are unique in the federal government because we're independent. We don't answer to any agency or even to the White House. And our primary mission is really to make government work better for the American people.

MARTIN: You know, one person's whistleblower is another person's jerk, know it all, you know, gab fly, a person who just, you know what I'm saying. How do you distinguish between a person who has a credible complaint and somebody who may just be a jerk with an ax to grind?

LERNER: Sure. Well, Senator Grassley is fond of saying that whistleblowers are often treated like a skunk at a picnic. And I think that there really is a negative perception about whistleblowers that...

MARTIN: Well, (unintelligible) journalists for example, I mean, I think journalists generally have benefited from the work of whistleblowers. Wouldn't you say? But...

LERNER: You know, I think it's understandable that there may be negative perceptions. But overall, in my experience in 20 years of law practice representing individuals and certainly since I've been at the OSC, what I see are people who are very courageous and who feel very vulnerable when they come forward because of the risks that they take by stepping up. You know...

MARTIN: Is it your presumption that if someone comes forward that there's a credible complaint?

LERNER: No, not at all. In fact, last year we got about over 1,000 disclosures. And when we're talking about whistleblowers now, we're talking about people who are making a disclosure of waste, fraud, or abuse, or a health or a safety problem. So, of about 1,000 last year, only about 62 were substantiated by our agency. And there's a very high legal standard. When someone comes to us with a disclosure, it's up to us to decide if it merits an investigation by the agency where the person works.

And most cases don't get referred to the agency for investigation. So, I'd say, no, there really is not a presumption that they're right. And part of that is because the legal standard is really so high.

MARTIN: What is the legal standard? Is it four paragraphs long or...



MARTIN: Can you describe it for us?

LERNER: Sure. There has to be a, quote, "substantial likelihood that the disclosure has merit" before we refer it to an agency for investigation. And we look at things like the whistleblower's credibility. They have to bring to us facts that support their allegations. So, it's not an automatic thing that a disclosure gets investigated.

MARTIN: One of the cases obviously that really brought your office a lot of attention was the one that we mentioned in the introduction that involved serious allegations involving a top Air Force general. It can only be described as gruesome. It was found that a military mortuary had mishandled and in some cases lost body parts belonging to America's war dead. Obviously this is a very serious matter, very emotionally charged.

I'm wondering if your office was looking for a case that would establish to people that you were to be taken seriously or was there some trepidation about going forward with a case like this that is so emotionally charged particularly at the beginning of your tenure.

LERNER: This was a case that was ongoing before I started. I began at the OSC in June and the whistleblowers had come to us about a year earlier. So, it wasn't something that I personally was looking for and it wasn't something that we were looking to get press for. In fact, we didn't anticipate getting any press. But I was totally taken by surprise by the outpouring of media interest. And it was a really unfortunate case, but I think it's important to the extent that it shows that the system worked.

And Air Force Secretary Donley has said the system worked because these whistleblowers came forward. So, if there's a silver lining to an unfortunate and sad situation, I think maybe that's it.

MARTIN: You know, there's another case that the agency have features - if I can use that word - on its website where the Navy had threatened an individual and suspended him without pay and suspended his security clearance because he made charges that the Marine Corps have failed to provide mine-resistant ambush protected vehicles to servicemembers in Iraq in a timely manner. And he was then put on leave with pay and then he was threatened with indefinite suspension. And then it was requested that - well, in any event, he's been reinstated. Is that a more typical case?

LERNER: I think so, yeah. And unfortunately, it is typical that even when someone should be hailed as a hero, which I think that person should have been because he was speaking out to protect our servicemembers serving abroad and trying to make them safer, he was retaliated against for having done so. And unfortunately, about 80 percent of the time when people make disclosures like that they do experience or feel like they're being retaliated against.

MARTIN: If you're just joining us this is TELL ME MORE from NPR News.

I'm speaking with U.S. Special Counsel Carolyn Lerner. She is the head of the agency charged with investigating cases of government wrongdoing and also protecting those who report it. You know, yours is a political appointment and those jobs often come with accusations of favoritism or a tilt. How do you - what's the word I'm looking for - who keeps you accountable?

LERNER: You know, we don't report to anyone, but the public certainly is very aware of what we do, good government groups are aware of it. Congress and the oversight committees in Congress are very aware of what we're doing. I think our actions will speak for themselves. And if we don't do what we're expected to do, we're going to hear about and the public's going to hear about it because this is very public.

MARTIN: But you can prosecute people.

LERNER: We don't actually have criminal prosecution authority.

MARTIN: So, your main job is to investigate, establish the facts to the degree that they can be established and then what?

LERNER: Well, we wear many hats. And so, for disclosures, when someone wants to report waste, fraud, or abuse or a health or safety problem, we don't have investigative authority for those cases. We refer them back to the agency and the agency is required to then investigate. For situations where someone has a prohibited personnel practice or retaliation claim for having made a disclosure, then we can do an independent investigation and if necessary take it to the Merit Systems Protection Board.

We also have two other really important responsibilities. One is under the Hatch Act to keep improper politics out of the government and we can prosecute those cases again to the Merit Systems Protection Board and under USERRA, the Uniform Services Employment and Reemployment Rights Act, which is the law that protects our members of the military and returning service members from discrimination on the job and we can take those cases, as well, and prosecute them to the MSPB.

MARTIN: Now, the Post also reported that, speaking of the Hatch Act, that your goal is to expand opportunities for people to politically participate, particularly at the state and local level, if that participation doesn't impinge upon their day job, as it were, in the federal government. Why do you think that that's in the best interest of the American people?

LERNER: Well, the Hatch Act is really important to keep improper politics out of the workplace and it serves a really important role to keep coercion out, so a supervisor shouldn't be, you know, coercing a subordinate employee to participate in politics for their favorite candidate.

But to the extent that we are preventing people from running for their state and local, you know, offices - for example, we had to tell a police officer in Pennsylvania that he couldn't run for school board because he worked in the canine unit and his dog was paid for with federal funds.

We had to tell deputy sheriffs, the people who are most qualified to run for sheriff, that they often can't run because their positions get some federal funding. And I don't think it's the role of the federal government to be telling people that they can't serve their local communities because their jobs are peripherally tied to federal funds. I don't think that was envisioned by the Hatch Act and it's not a proper role for us.

MARTIN: Just in the couple of minutes that we have left, can we just talk a little bit about you? I mean, you were a partner in private practice in the Washington, D.C. area. There aren't that many women partners. And I was just wondering why public service was attractive to you, having already achieved a milestone that is important to a lot of people.

LERNER: Well, although I'd never held public office before, I've always been committed to public service, and even in my private practice, I was basically what I think doing public service by representing individuals oftentimes in civil rights cases and I did a lot of community service, as well. And I can't imagine a better time to go into public service.

The Office of Special Counsel has an extraordinarily important mission and, you know, protecting federal tax payers and preventing waste, fraud and abuse and I think at a time, also, when there's a declining view about what government can do and what it should do, we can help really increase confidence in government through the work of this agency.

And so I feel like it's a really exciting time to be in government and there's a lot of good that we can do.

MARTIN: Before we let you go, you're six months into a five year term. The five year term is meant to span administrations, I believe, in part to try to insulate you from political pressures, the pressures of campaigns and so forth, sort of like the FBI director, if I can use that, who has a 10 year term.

How will you know at the end of this term that you've succeeded?

LERNER: That's a tough question. I think, if people feel confident coming to this agency and feeling that they're going to get a fair shake, if members of Congress feel comfortable referring their constituents to our agency for help, then we're doing our job right. I mean, I think if we can make sure that the federal workforce knows that we're there, that we are impartial and independent and have confidence in our ability to help them, then we'll have been successful.

MARTIN: Carolyn Lerner heads the U.S. Office of Special Counsel. She was kind enough to join us in our Washington, D.C. studios. Thank you so much for speaking with us and happy New Year to you.

LERNER: Thank you, Michel. It's been a pleasure to be with you. Transcript provided by NPR, Copyright NPR.