Three million employees of the federal government rely on one fairly obscure office
for protection against job discrimination, retaliation for whistle-blowing, political
hackery, secrecy, and partisanship. Tragically, the man who runs that agency,
the Office of Special Counsel (OSC), is a gay-hating, secretive, partisan, political
That man, Scott Bloch, is decimating the ability of government employees to
turn in their bosses for wrongdoing -- which is apparently the way George W.
Bush wants it. After all, Bush has spent five years replacing the government's
inspectors general -- each agency's watchdog for investigating whistleblower
complaints -- with partisan hacks. (See Rep. Henry Waxman's report.) That means
more waste, more fraud, and more abuse of taxpayer dollars. It also means less
accountability for Bush-administration appointees who pursue their own ideologically
After a little more than a year running the independent, 100-person OSC, Bloch
is already facing a world of scrutiny. Two Senate committees are planning oversight
hearings. US representatives have made public accusations. A watchdog group
is collecting horror stories. And last month, the Bloch problem officially landed
in Bush's lap, when a complaint lodged by current and former OSC employees was
officially referred to the Office of the White House Counsel for action. "President
Bush will have to decide whether this gets investigated or buried away,"
says Debra Katz, an attorney for the OSC employees.
Their allegations run the gamut. They claim Bloch has denied help to gay workers
who assert sexual-orientation discrimination; dismissed hundreds of whistleblower
and discrimination complaints without any investigation; issued illegal gag
orders and reassigned or fired employees he suspects of leaking information
about him; and left critical staff vacancies open, while hiring numerous unqualified
friends at high salaries for unnecessary administrative positions. Worse, they
allege that he has politicized what should be a nonpartisan office by squashing
investigation into whether Condoleezza Rice had broken campaign law, but speedily
pursuing allegations against John Kerry; and vigorously pursuing petty complaints
against Democrats and Green Party candidates, while burying complaints against
That's quite an abrupt change from the previous OSC special counsel, Clinton
appointee Elaine Kaplan -- a union-friendly, open lesbian. It's not surprising
that many of the staffers who liked Kaplan don't like Bloch. What is amazing
is that the current and former OSC employees who bring these allegations fear
retaliation from the very office established to protect federal employees from
such retaliation. "I really do think he'll take reprisal action" against
subordinates for speaking to the Phoenix, says one current employee, who asked
that his name not be used. "Folks are really quite terrified."
The OSC is known mostly for helping whistleblowers who have suffered retaliation,
but it also investigates discrimination -- in fact, it has long been the one
and only place for most federal employees to get help in cases of alleged discrimination
on the basis of sexual orientation. (The Equal Employment Opportunity Commission
does not redress sexual-orientation discrimination.)
Now, thanks to Bloch, victims of sexual-orientation discrimination have no
recourse -- people like Michael Levine, a gay, 32-year Forest Service employee
in California. Levine says he was harassed and suspended after co-filing a complaint
against a fellow employee's personal use of office resources. According to a
witness, the personnel officer who came after Levine said during the process,
"Don't you just hate these fucking faggots?"
Levine filled out an OSC complaint form in November 2003, including a letter
from the witness. A year later, without any investigation, the case was judged
to have no merit and closed.
"That was appalling," says one former OSC investigator who has seen
both the Levine complaint and the OSC's response. "That is a no-brainer,
that should be investigated."
Not, apparently, according to Bloch, who has publicly indicated that he believes
the OSC's statute covers discrimination based on off-duty sexual conduct, not
on sexual orientation per se. In other words, according to Bloch, discrimination
against an employee for having same-sex relationships can be investigated by
the OSC, but discrimination against an employee simply for being homosexual
cannot, because that is not conduct. This tortured reading of the statute is
contrary to White House and OSC interpretation dating to the Reagan administration.
During Bloch's confirmation process in the fall of 2003, senators suspicious
of his beliefs asked him directly about his interpretation. Bloch's answers
were vague. Sen. Daniel Akaka submitted a series of written follow-up questions
to get Bloch to clarify. His four-page response to Akaka talked around the question.
For instance, asked directly whether he agrees that the statute covers sexual
orientation, Bloch wrote: "I will not fail to enforce if a claim of sexual
orientation discrimination comes to my office that shows through the evidence
that the statute has been violated." Faced with this mumbo-jumbo, Sen.
Carl Levin submitted yet another follow-up, which Bloch again managed to answer
Bloch was playing possum to get confirmed. In February 2004, a month after
taking office, he began a "legal review" to determine whether the
statute covers sexual-orientation discrimination. At the same time, Bloch ordered
all references to sexual-orientation discrimination scrubbed from the OSC Web
site, including materials designed to educate employers and employees about
His actions got leaked, embarrassing the White House, which announced in March
that the Bush administration believes that the OSC covers sexual orientation.
The day after that declaration, Bloch announced via press release that his legal-review
project was complete, and that sexual-orientation discrimination cases would
But not really. One year later, none of the material taken down from the web
site has been put back. Even the office's official complaint form, newly revised
as of February, does not mention sexual orientation. More importantly, not one
sexual-orientation-discrimination case has been acted upon under Bloch's tenure.
In fact, Bloch has removed those cases from the normal review process. All
other personnel-practice allegations go to a Complaints Examining Unit, and
then, if found to have merit, to the Investigation and Prosecution Division.
According to insiders, under Bloch, sexual-orientation cases must be sent directly
to OSC attorney adviser James McVay, a political appointee of Bloch's. This
is a highly unusual, perhaps unique policy, which has placed all sexual-orientation
discrimination cases -- like Levine's -- beyond scrutiny, and into the hands
of McVay, a former Marine drill sergeant and insurance attorney with no experience
in employment law, whistleblower law, or federal-sector work.
Each agency head gets to make some "political" appointments, such
as McVay, who are exempt from civil-service and competitive-hiring laws that
cover the "career" employees who make up most of the staff. McVay
is one of about 10 political hires Bloch made soon after taking office -- doubling
the number of political appointees on the staff under Kaplan, who had left many
of those positions unfilled. At least five of that group were hired at salaries
above $100,000 -- a significant dent in the OSC's $13.6 million budget.
Most of these new hires, including McVay, have ties to Bloch -- many from his
Kansas days. Bloch, after graduating from the University of Kansas in 1980 and
UK's law school in '86, stayed in Lawrence to practice law for the next 15 years.
In November 2001, he came to Washington to work for the Department of Justice's
Task Force for Faith-based and Community Initiatives.
Almost all Bloch's hires, political or not, are Catholic, as he is -- and,
like him, most are conservative activists. Deputy special counsel James Renne,
who has worked for the conservative Media Research Center and Heritage Foundation,
signed an open letter in 2000 from Concerned Catholic Attorneys warning, among
other things, that an Al Gore victory could lead to a Supreme Court "willing
to declare homosexual conduct a constitutional right" by finding that "traditional
religious opposition to homosexual acts is ... a form of bigotry akin to racism."
(Renne was reportedly Bloch's second choice for the job, which was first offered
to a professor who founded an anti-gay-rights organization at Casper College,
in Laramie, Wyo., in 1998.) Public-affairs officer Catherine Deeds -- formerly
Bloch's Faith-based Initiative counterpart at Health and Human Services -- previously
worked for the conservative Family Research Council.
Bloch's conservative-Catholic leanings are not subtle. He sent staff home early
on Good Friday, and scheduled a senior-staff retreat on Passover. Thomas Forrest,
who worked for McVay, "would walk around the office talking about how important
going to church is, in effect proselytizing," says one source. Bloch has
hired several attorneys out of Ave Maria Law School, an openly right-wing Catholic
institution that has not yet gained full accreditation from the American Bar
Association. He hired Alan Hicks, former headmaster at Bloch's son's Catholic
boarding school, for consulting work, including giving a speech at the retreat.
Bloch's defenders, including the American Spectator and Catholic League president
William Donohue, have dismissed all the accusations as anti-Catholic bigotry.
The religious affiliations of these officials wouldn't be of interest, except
for the allegations of cronyism -- and the fact that all sexual-discrimination
complaints have been funneled to this cadre for handling.
When Bloch's gay-discrimination maneuvering became public last year, this core
group became secretive and suspicious of the other employees, sources say. "[Bloch]
seemed to put employees on one side of the table and he and his staff on the
other," says one OSC worker. Bloch complained to press about "leakers"
in his office, and ordered staff not to speak to outsiders without prior approval.
Then in December -- shortly after a watchdog group reported Bloch's hiring
of his friends -- Bloch abruptly relocated 12 career employees to offices in
Dallas and Detroit, and fired those who refused to go, which was most of them.
The reassignments made little practical sense; for example, the head of the
mediation team was sent away from DC, where most cases originate, to Detroit.
Two of the 12 targeted were openly gay. Some were among the most senior staff.
None was given any reason for being fired other than his or her refusal to move.
A few were offered severance settlements requiring their silence about Bloch's
actions at OSC; nobody accepted the terms.
These are exactly the kinds of retaliatory acts that the OSC exists to investigate.
So the employees, with the help of several watchdog organizations, including
the Human Rights Campaign, filed a complaint with the OSC this March. They asked
Bloch to recuse himself and refer the complaint to the independent President's
Council on Integrity and Efficiency (PCIE). Instead, Bloch sent it to another
body, the Integrity Committee, which quickly ruled that it had no jurisdiction
over the OSC and closed the case.
"Our contention is that Scott Bloch referred it to the Integrity Committee
because it has no jurisdiction, so the IC would close it and it would be gone,"
says attorney Debra Katz. At Katz's request, the IC chairman sent the case to
the White House Counsel's Office in mid April, which now must decide what, if
anything, to do with it.
Two Senate committees will soon hold hearings into some of these allegations,
but they will also be asking about yet another issue. Among its other duties,
the OSC investigates alleged violations of the Hatch Act, the post-Watergate
prohibitions on using federal offices for political purposes. During the 2004
presidential campaign, Bloch was accused of misusing his office by taking a
partisan approach to Hatch Act investigations.
This hit the fan when Condoleezza Rice, then national-security adviser, made
a series of high-profile speeches in battleground states, which struck many
observers as de facto campaign speeches for George W. Bush. Congressman John
Conyers (D-Michigan) brought a complaint to the OSC. Instead of turning the
complaint over to the regular investigators, as is normal practice, Bloch gave
it to Renne, his political deputy, who did nothing with it until after the election.
Compare that with the handling of allegations from last August, when Senator
John Kerry appeared at the Kennedy Space Center, a National Air and Space Administration
facility. (The appearance resulted in a photo of Kerry in a light-blue protective
suit, which the Republican National Committee mocked.) Within two days of receiving
allegations that Kerry's appearance may have violated the Hatch Act, Bloch assigned
the case to the investigative staff, directing them to conduct an immediate
This apparently partisan application of the OSC's resources was high profile
enough to draw criticism from Conyers and others in Washington. But Bloch appears
to be doing the same with rank-and-file federal employees. He has sought sanctions
against eight people for alleged Hatch Act violations since taking office. Two,
involving a Social Security Administration employee who e-mailed a pro-Kerry
message and another who responded with a pro-Bush e-mail, were just rejected
by an administrative judge. Of the other six, three are against Democrats, two
are against Green Party members, and one is against an independent.
All these allegations are serious, but there is a more fundamental problem
with the OSC under Scott Bloch: it is not doing its job.
Bloch entered office pledging to reduce the backlog of cases, which stood at
about 1200 held-over cases each year. (About half of those are whistleblower
disclosures, and half are complaints about reprisals or discrimination.) He
claims to have done so, although his office has refused all requests for a specific
But by all appearances, he has not cut the backlog by more efficiently processing
complaints, pursuing the ones with merit, and dismissing the others. He seems
instead simply to have closed hundreds of cases without any inquiry at all.
It could hardly be otherwise; the office was understaffed when he arrived,
with at least 10 open positions out of about 120. Since then, roughly 20 percent
of the staff has been fired or quit. Only a few have been hired, outside of
Bloch's political staff, and they are neither experienced nor qualified for
"You've got empty office after empty office," one source says. The
mediation office, a particularly successful program for resolving disputes,
has gone unstaffed. The headquarters investigative team is roughly half what
Nevertheless, despite the staffing shortage and case backlog, Bloch has found
time to pursue, of all things, allegations that the Food and Drug Administration
and the Centers for Disease Control and Prevention are conspiring to hide the
true link between childhood vaccines and autism. "Notwithstanding a new
Institute of Medicine study released yesterday that concludes there is no link,"
reads an OSC press release from May 2004, and even though "the OSC does
not have jurisdiction," Bloch was gathering allegations from private citizens
and referring them for congressional oversight.
Observers inside the office were baffled by the project. "We all looked
at each other and said, 'What on earth is he doing that for?'" says one
Meanwhile, serious allegations are going uninvestigated. The Project on Government
Oversight (POGO) has obtained a detailed complaint against Arturo Q. Duran,
commissioner of the International Boundary and Water Commission in El Paso,
Texas, and a Bush appointee. Duran allegedly hired friends without performing
required background checks; spent government money on himself; and retaliated
against several employees who sent a letter to a local publication about him.
The OSC took one week to close the case, without any inquiry. In another case,
attorney Bryan Schwartz represented several Smithsonian employees who alleged
sexual harassment, theft of government supplies, illegal drug use, inappropriate
use of government equipment and manpower, unfair hiring practices, possession
of personal firearms, and retaliation for whistle-blowing; that case was also
summarily closed. Other cases getting the brush-off involve federal employees
blowing the whistle on security lapses and fraud.
Bloch and others at OSC have denied that the office is closing meritorious
cases just to reduce the backlog. (Neither Bloch or Renne would speak with the
Phoenix.) But they also acknowledge that anywhere from 600 to 1000 whistleblower
cases have recently been closed without investigation, compared with fewer than
700 in the previous two years combined. And insiders report that the emphasis
has been on closing cases, not on pursuing wrongdoers. "When you keep emphasizing
closing cases, you start to wonder whether he wants those cases investigated,"
"In the 16 or so months he's been there, we haven't seen one whistleblower
get helped," says Jeff Ruch of Public Employees for Environmental Responsibility.
Watchdog groups claim that those making complaints are not even receiving a
phone call before their cases close. One group, the Government Accountability
Project (GAP), put out a call last week for anyone who has filed a whistleblower's
complaint with OSC to tell them what has happened.
With GAP compiling these stories, and Capitol Hill holding hearings, the White
House might be forced to rein in Bloch, or even fire him. If not, he's still
got almost four years left in his five-year term to keep Republican law-breakers
safe from their complaining employees.
David S. Bernstein can be reached at email@example.com