By William Fisher
Public interest groups and anonymous whistleblowers are charging that Scott Bloch, head of the Office of Special Counsel (OSC), has irreconcilable conflicts of interest in his much-trumpeted investigations of Karl Rove’s missing emails and the firing of a US Attorney, and are calling on the top White House lawyer to force Bloch to recuse himself.
In a letter to White House Counsel Fred Fielding, an attorney representing Public Employees for Environmental Responsibility (PEER), the Project On Government Oversight (POGO), and the unnamed whistleblowers, wrote:
“Multiple conflicts of interest will result if Mr. Bloch continues to lead an investigation of high level officials in the White House while he himself is being investigated, essentially at the direction of the White House.”
Lawyer Debra S. Katz wrote Fielding that, “On the hand, the pending charges against Mr. Mr. Bloch supply him with an incentive to whitewash violations of the law in the hopes of currying favor. On the other hand, were he to make findings of violations, his findings would be viewed as an act of retribution and/or coercion to prevent the President from taking appropriate action against him, which he would surely portray as retaliation. If Mr. Bloch’s investigation of White House officials is still underway when (the Office of Personnel Management) completes its own investigation of Mr. Bloch…the White House will be put in the position of having to make a decision about Mr. Bloch’s continued tenure, while it is itself being investigated by Mr. Bloch.”
Since 2005, Bloch has been under investigation by the Inspector General of the White House Office of Personnel Management (OPM), at the behest of the President’s Office of Management and Budget. OPM’s investigation centers on charges that Bloch retaliated against whistleblowers who complained they were being transferred out of Washington for political reasons because they disagreed with Bloch’s policies. That investigation is reportedly reaching its final stages.
As that process plodded forward, Bloch announced his plans to investigate the White House by combining several unrelated high-profile investigations, including the firing of US Attorneys, missing Karl Rove emails and political briefings of General Services Administration managers, in violation of the Hatch Act.
Jeff Ruch, Executive Director of Public Employees for Environmental Responsibility (PEER) told Truthout, "Scott Bloch gives opportunism a bad name."
PEER is among a number of public interest groups calling for the abolition of Bloch’s office, which is up for congressional reauthorization this year.
Bloch’s proposed investigation has prompted protests both inside and outside the OSC. These have been based on issues including:
· The OSC likely does not have jurisdiction over a complaint filed by recently fired US Attorney David Iglesias (a complaint solicited by Bloch) alleging discrimination on the basis of his service in the Navy Reserve.
· Presidential appointees who have been confirmed by the Senate are not entitled to claim statutory protection against decisions regarding their continued tenure.
· There are separation of powers questions about applying statutes to block a presidential prerogative to remove his own appointees.
· OSC has only a qualified subpoena power and lacks the authority to enforce its subpoenas in court. If a party simply refuses to comply, OSC must obtain the consent of the General Counsel of the Merits Systems Protection Board, headed by a Bush-appointee, who would then be charged with bringing an enforcement action.
· The legal basis for an OSC investigation into emails from White House staff sent on Republican National Committee accounts, as well as OSC’s power to order surrender of the missing missives, is unclear.
“It makes no sense for Scott Bloch to investigate the White House while the White House investigates Bloch,” stated PEER’s Ruch, noting that Bloch has told allies that the White House has twice asked him to resign. Bloch, who is in the midst of a fixed five-year term, can only be removed for cause.
"Bloch should recuse himself from this case and hand the matter over to an outside entity, such as the relevant Inspectors General or Congress,” Ruch said.
He added, ““Scott Bloch brings the investigative acumen of an Inspector Clouseau to a very complicated and delicate matter.”
“It is not that Bloch has lacked the opportunities to conduct complex investigations since every virtually whistleblower in town goes to the OSC, but Bloch has ignored them all. It is only when a probe serves his political agenda that he latches onto it as if it were the last helicopter leaving Saigon, ” says POGO Director of Investigations Beth Daley said, “What we have here is a mutual investigation society. This is the bureaucratic equivalent of a mouse trying to swallow an elephant. The OSC has no standing to conduct the investigation and Scott Bloch cannot possibly investigate the White House while it is investigating him.”
The Administration’s investigation of Bloch comes as a result of a complaint filed by his own staff members and whistleblower groups alleging a host of misconduct charges against Bloch. One part of that complaint concerns Bloch’s improper interference with the handling of Hatch Act cases, the statute that Bloch is now invoking as the basis for looking at White House political briefings.
Bloch’s proposed investigation follows allegations that the Justice Department fired eight US Attorneys for political reasons, that White House officials including Bush political advisor Karl Rove violated the Presidential Records Act by using an email account of the Republican National Committee and failing to archive these communications, and that Bush appointees delivered politically-charged briefings to employees of the General Services Administration (GSA), thus violating the Hatch Act.
Bloch contends that one of the fired US Attorneys, David Iglesias, suffered discriminatory treatment because of his 45-day absence for military service.
The US Office of Special Counsel is an independent federal investigative and prosecutorial agency. Its basic authorities come from three federal statutes, the Civil Service Reform Act, the Whistleblower Protection Act, and the Hatch Act.
Its mission is to safeguard the merit system by protecting federal employees and applicants from prohibited personnel practices, especially reprisal for whistleblowing. It is intended to provide a secure channel for federal workers -- except those in the FBI and intelligence agencies -- to disclose information about various workplace improprieties, including a violation of law, rule or regulation, gross mismanagement and waste of funds, abuse of authority, or a substantial danger to public health or safety.
OSC has about 110 employees, about 40 percent of them licensed attorneys. Like public defenders, OSC’s attorneys are paid by the government to act in the interests of federal employees who seek their protection.
President Bush nominated Bloch for his five-year term in 2003. He was unanimously confirmed by the US Senate. From 2001-2003, Bloch served as Associate Director and then Deputy Director and Counsel to the Task Force for Faith-based and Community Initiatives at the Department of Justice. Before joining the Bush Administration, he was a partner in a Lawrence, Kansas, law firm.
The complaint against Bloch alleges he discriminated against OSC employees by imposing illegal gag orders, cronyism, and retaliation in forcing employee relocations and the resignations of one-fifth of OSC headquarters legal and investigative staff.
Bloch insists that the ‘forced removals’ were part of a reorganization that sent 12 career OSC employees to new assignments in other cities “to improve performance, not punish any employees.”
The OPM Inspector General’s investigation is the third probe into Bloch’s operation after less than two years in office. The Government Accountability Office (GAO) and a US Senate subcommittee both have ongoing investigations into mass dismissal of hundreds of whistleblower cases, crony hires, and Bloch’s targeting of gay employees for removal while refusing to investigate cases involving discrimination on the basis of sexual orientation.
The allegation was made by in 2005 by PEER, which said figures released by Bloch reveal that in the previous year OSC dismissed or otherwise disposed of 600 whistleblower disclosures where civil servants have reported waste, fraud, threats to public safety and violations of law, and “made 470 claims of retaliation disappear”.
Ruch says, “The 600 disclosure cases that Bloch has admitted were dismissed are all instances where civil servants came forward to report waste, fraud and abuse, yet OSC decided that there was no need to investigate.”
He added, “Dismissing all 600 cases and deciding that not one deserved investigation (because, in the words of the OSC spokesperson they were all ("minor matters or issues previously investigated") stretches credulity.”
“Bloch has yet to announce a single case where he has ordered an investigation into the employee’s charges”, PEER charges. The organization says, “in not one of these cases did Bloch’s office affirmatively represent a whistleblower to obtain relief before the civil service court system”, called the Merit Systems Protection Board.
PEER says, “In order to speed dismissals, Bloch instituted a rule forbidding his staff from contacting a whistleblower if their disclosure was deemed incomplete or ambiguous. Instead, OSC would simply dismiss the matter. As a result, hundreds of whistleblowers never had a chance to justify why their cases had merit.”
And Melanie Sloan, executive director of another public interest organization, Citizens for Responsibility and Ethics in Washington, said of Bloch, “Having transformed OSC into a virtual black hole for legitimate complaints of retaliation, Bloch is decidedly not the right person to tackle the issues of misconduct and illegality that surround top White House officials. There is a serious question as to whether Bloch will just provide cover for an administration that has been covering for him.”