Developments at OPM: On Monday, May 5, 2014, the Office of Personnel Management (OPM) published a final rule in the Federal Register implementing the 2012 Hatch Act amendments. The Final Rule can be found at 79 Fed.Reg. 25,483-25,486. The Hatch Act amendments were analyzed previously in this blog. The Final Rule comes into effect June 4, 2014.
Developments at the MSPB: The MSPB continues its assault on due process violations by agencies when taking adverse personnel decisions against federal government employees. In this latest example, a poorly written complaint by the Office of Special Counsel (OSC) violated the due process rights of government employee Jeffrey E. Smith by failing to place Mr. Smith on notice of his alleged violations, the MSPB recently held. OSC's complaint alleged that Mr. Smith violated the Hatch Act for engaging in political activity while on duty and while in a government building on a government computer. However, OSC's complaint lacked necessary particularity and supporting facts. The complaint failed to properly identify referenced emails and documents Mr. Smith allegedly drafted or edited, and it did not contain any attachments or copies of materials which constituted the bases for its charges. The MSPB made clear that outlining each specification of a complaint "is precisely what OSC is required to do," and that OSC's failure to do so prevented Mr. Smith from defending himself against OSC's allegations and did not inform the judge as to what must be adjudicated. The MSPB accepted an amended OSC complaint as a new complaint so that Mr. Smith may exercise his full procedural rights if the new complaint complies with constitutional and regulatory requirements. Special Counsel v. Smith, 2011 MSPB 69 (July 12, 2011).
Developments at the OSC: The U.S. Office of Special Counsel (OSC) recently reached a settlement agreement on behalf of whistleblower Ken Downey, a long-time supervisor with the Blaine (Washington) Sector Communication Center of the U.S. Department of Homeland Security's Customs and Border Protection (CBP). OSC investigations revealed that CBP illegally retaliated against Mr. Downey for making a series of whistleblower disclosures of agency misconduct by proposing to fire Mr. Downey, suspending him, transferring him indefinitely to another border patrol station, issuing him a reprimand, removing his supervisory duties, and failing to promote him despite a favorable recommendation from his supervisor.