UNITED STATES OFFICE OF PERSONNEL MANAGEMENT Wa»hington, DC 204!5 Ollicc nf the la.~pector Gener:ll December 5, 2013 Honorable Carolyn N. Lerner Special Counsel Office of Special Counsel 1730 M Street, NW, Suite 218 Washington, DC 20036 Dear Ms. Lerner: This letter transmits for your information my office's final report pursuant to the interagency agreement we signed with the U.S. Office of Special Counsel (OSC) on March 3, 2006. Under that instrument, we were empowered to conduct an investigation of a complaint filed on March 3, 2005 (as amended on March 31, 2005) by several fanner OSC employees who alleged that then-Special Counsel Scott J. Bloch committed prohibited personnel practices and other acts of misconduct during fhe period January 2004- March 2005. Because it would have constituted an irreconcilable conflict for OSC to have investigated the alleged wrongful conduct of its own agency head, Clay Johnson, who at that time was the Deputy Director for Management of the Office of Management and Budget (OMB), took responsibility for arranging an independent inquiry into the complaint. In an October 5, 2005 letter to our office, Mr. Johnson asked us to conduct an administrative investigation of the allegations contained in the employees' complaint, and to provide a report of our findings to him. Upon the direction ofOMB, OSC funded the costs of the investigation from its appropriated funds. While there was considerable discussion during the negotiation of the Economy Act Agreement regarding the authorities that our office could exercise in conducting its investigation, we proceeded on the basis that it was our responsibility to develop and report factual findings which could be used as a basis for resolving the matters identified in the fanner employees' complaint. To conduct the investigation, we assembled a team of investigators, attorneys, information technology specialists and an OPM senior personnel management auditor drawn from several different member agencies of the then-President's Council on Integrity and Efficiency to work under the leadership of a supervisory special agent from my office. The investigative team initiated its work in March 2006 after execution of the Economy Act Agreement. In August 2007, the investigative team obtained evidence which indicated that Mr. Bloch may have committed violations of Federal criminal law associated with efforts to impede the administrative investigation that our office was conducting. In September 2007, after consulting with the United States Attorney's Office for the District ofCohnnbia, the team referred responsibility for the criminal matters to them in accordance with title 5, United States Code, section 1214(d)(l). In October 2007, the U.S. Attorney opened a criminal investigation and requested the participation of the OIG investigative personnel. At the furfher request of the prosecutor to whom the criminal case was assigned, the team suspended its administrative investigation OSC is releasing this document in the public interest. Appropriate redactions have been made to protect individual privacy interests. www.opm .gov www.u5ajobs.gov Honorable Carolyn N. Lerner 2 pending resolution of the criminal issues. This took an unexpectedly prolonged time, and the criminal matter was not closed until Mr. Bloch's sentencing before U.S. District Court Judge Robert L. Wilkins on June 24, 2013. (Our report, of course, does not address any aspects of the criminal investigation or the ensuing judicial proceedings.) The investigative team interviewed Mr. Bloch in July 2007 during the administrative investigation. In addition to the testimony he provided at that time, the team reviewed documents that Mr. Bloch generated in response to the March 2005 complaint and other material, such as Congressional testimony, containing statements he made in respect to the complaint, the administrative investigation led by my office, and various provisions of OSC law and procedure. In respect to the central issue of the March 2005 complaint-alleged prohibited personnel practices on the part of Mr. Bloch associated with directed staff reassignments-the investigative team developed evidence that, beginning shortly after he took office as Special Counsel in January 2004 and proceeding through calendar year 2004, he took a series of actions that set the stage for an extensive reorganization of the agency's structure which was announced in early January 2005. The key element of the reorganization was the establishment of a Midwest Field Office in Detroit, Michigan and the directed reassignments of 12 headquarters personnel (constituting slightly over ten percent ofOSC's total strength) to that office. The complainants were among those reassigned employees, and they charged that their reassignments were retaliatory in nature, constituting prohibited personnel practices actionable under title 5, United States Code, section 2302(b)(8). The pertinent statutory language is as follows: (a)(l) For the purpose of this title, "prohibited personnel practice" means any action described in subsection (b), {b){S) take or fail to take, or threaten to take or fail to take, a personnel action with respect to any employee or appli_cant for employment because of- (A) any disclosure of infonnation by an employee or applicant which the employee or applicant reasonably believes evidences(i) any violation of any law, rule, or regulation, or (ii) gross mismanagement, a gross waste of funds, an abuse of authority1 or a substantial and specific danger to public health or safety, if such disclosure is not specificaf!y prohibited by law and if such information is not speclfJcally required by Executive order to be kept secret in the interest of national defense or the conduct of foreign affairs; or (B) any disclosure to the Special Counsel, or to the Inspector General of an agency or another employee designated by the head of the agency to receive such disclosures, of infonnation which the employee or applicant reasonably believes evldences(i) any violation (other than a violation of this section) of any law, rule, or regulation, or (ii) gross mismanagement, a gross waste of funds, an abuse of authority1 or a substantial and specific danger to public health or safety; Our investigative report contains information supporting the detennination that the January 2005 reorganization of OSC and the associated personnel reassignments were designed to specifically target the removal of certain employees on the basis ofnorunerit factors. Mr. Bloch and his immediate staff offered an array of ostensible explanations in press releases, Congressional testimony, and interviews with the investigative team, seeking to link the reassignments to the bona fide operational needs of the agency. However, our investigation developed evidence Honorable Carolyn N. Lerner 3 which tended to undennine the proffered explanations. The report discusses these matters in considerable detail, and concludes that OSC management could not demonstrate that the reassignments were taken for a legitimate business purpose of the agency. Particularly relevant to this point was information furnished to the investigative team by Lieutenant General (Retired) Richard Tref!y, a former Inspector General of the Army who was a founder and executive vicepresident of the consulting fim1 Military Personnel Resources, Inc. (MPRI), which was contracted by Mr. Bloch in April 2004 to perform a management analysis ofOSC. General Trefry told the investigative team that, in multiple discussions about MPR!'s work in OSC, Mr. Bloch openly explained to him that OSC had a number of homosexual employees; that he (Mr. Bloch) wanted to "ship out" these persons; and that he "had a license to do this." The general said that he was unsure as to whom or what Mr. Bloch was referring by the "license" comment. However, he observed that Mr. Bloch appeared to be "very detennined" to carry out the intentions he articulated. During the period in which MPRI was performing its analytical study of OSC (April October 2004), General Trefry told the investigative tean1 that Mr. Bloch spoke with him in detail about the way in which he intended to "ship out" homosexual employees. The general indicated that Mr. Bloch stated that his plan was to create a new OSC field office in Detroit, Michigan and assign to it the homosexual employees, along with others who he (Bloch) viewed as exerting a negative influence on the agency. Mr. Bloch also indicated that he would be sending other employees to the existing Dallas, Texas field office. General Trefry advised Mr. Bloch not to create and staff a new field office, or to assign more employees to Dallas, on the basis that workload availability in the field did not warrant these actions, and urged that any reassignments be made in accordance with Federal personnel law. The report also addresses several other charges of improper or wrongful conduct on the part of Mr. Bloch that were contained in the complaint. In summary, these include: • Refusal to enforce statutory provisions barring discrimination on the basis of employee sexual orientation, This portion of the complaint referred to a decision by Mr. Bloch to reverse the existing OSC policy which deemed sexual orientation discrimination to constitute a prohibited persom1el practice under section 2302(b)(10) of Title 5, United States Code, which prohibits agencies to "[D]iscriminate for or against any employee or applicant for employment on the basis ofconduct which does not adversely affect the performance ofthe employee or applicant or the performance ofothers " The investigative team found that formal implementation of the 2302(b)(l0) policy change occurred hun·iedly in February 2004 without a plan to explain or justify it, without an apparent intention to announce it publicly, without prior consultation with other interested agencies, and in an apparent failure-whether willful or not-to realize that it affected, or could be perceived as affecting, significant numbers of Federal employees. In fact, an official White House press release in March 2004 is susceptible to being interpreted to indicate that Mr. Bloch had not informed or cleared his actions through their channels. Cumulatively, we believe that these factors demonstrate-regardless of the legal correctness of the policies involved-that Mr. Honorable Carolyn N. Lerner 4 Bloch's conduct of the process through which the policy change was implemented involved a substantial degree of inefficiency and disorganization. However, the investigative team ultimately concluded that a determination of the legal supportability of Mr. Bloch's action to reverse the prior OSC policies could not be appropriately made through investigative techniques, but rather must rest on legislation or a decision of an appropriate adjudicative body. In the absence of such factors, the Special Counsel, as a matter of operational reality, had the ability to establish OSC's position on the issue. Mr. Bloch clearly defined it to preclude the recognition of sexual orientation discrimination as a prohibited personnel practice. The complainants did not identify a statute or judicial decision in effect as of the date of Mr. Bloch's policy change that was directly inconsistent with his position. Therefore, we do not believe it could be either proved or disproved by this investigation that Mr. Bloch's actions represented a refusal to enforce Federal personnel law. • Violations associated with attempts to limit free speech rights of OSC employees through issuance of a "gag order." This issue involves allegations in the complaint that involved the following matters attributed to Mr. Bloch's actions as Special Counsel: • Violating the First Amendment rights of OSC employees by issuing a "gag order" which restricted their ability to communicate with parties outside the OSC on "confidential or sensitive internal agency matters." • Violating the Anti-Gag statute by failing to provide guarantees of employees' statutory free speech rights in the "gag order." • Violating the Lloyd LaFollette Act (5 U.S.C. 7211 ), which assures Federal employees the right to petition or furnish information to Congressional representatives and committees. directed develop oo ~~ a agency be issued through Immediate Office of the Special Counsel (lOS C--an acronym for ~olitically-appointed advisors and executives). On April 9, 2004,. - - s e n t an email titled "Updated language for issuance to staff' to the chiefs of OSC's three Investigation and Prosecution Divisions which contained the statement "[T]he Special Counsel has directed that any official comment on or discussion of confidential or sensitive internal agency matters with anyone outside OSC must be approved in advance by an IOSC official." The following week Mr. Bloch directed the issuance of a follow-up e-mail to OSC's career executives, which read in part, "Although nobody on my immediate staff saw the final message [reference is to the April 9, 2004 email cited above] before it went out, obviously there was no intent that First Amendment rights, WPA, or other statutory rights of employees be curtailed. Please reassure and communicate that to the staff." The investigative team's interviews with employees who were present in OSC during 2004 revealed that, to the extent that this po !icy was communicated to them at all, the senior career Honorable Carolyn N. Lerner 5 amttio,nofits intent Many employees simply received a copy of forwarded by their immediate supervisors. Some did not conveyed to them at all. The employees expressed varied opinions as to whether the policy was still in effect at the time of our investigation in 2006, with some believing that it had been rescinded and others unsure of its status. None of the persons we interviewed indicated that they had interpreted the message as infringing on their speech rights or opined that it affected their on-the-job conduct in any way. Moreover, essentially every current and lbnner OSC employee interviewed by the investigative team expressed a belief that the statement was intended to serve the appropliate business purpose of assuling coordination at the top management level for matters on which the agency had to speak authoritatively and with one voice. The complainants provided no evidence upon which it could be concluded that OSC officials acted in a manner that deprived any employee of his or her constitutional and legal rights of free speech. In light of these findings, the investigative team does not believe that these allegations in the complaint have been proved. • Religious Discrimination This matter appeared in the March 3 J, 2005 amended complaint. It consisted of allegations that "Mr. Bloch's political appointees" had closed OSC and given employees paid time off for Good Friday in 2004 and 2005, while not providing equivalent treatment of employees on nonChristian religious holidays. In addition, it was alleged that Mr. Bloch scheduled a mandatory off-site retreat tor OSC senior managers, including certain career personnel, during a portion of Passover in 2004. The investigations team verified that all OSC employees were excused from duty without charge to leave on Good Friday in 2004 (April 9) and 2005 (March 25), and that the April2004 OSC senior staff retreat at the Tidewater hm in Easton, MD did fall during Passover, the dates of which in 2004 extended from sundown Aplil 5 until April 12. The email record available to the arranging the Tidewater Inn cn1nferer>ce: considerable care to selecting dates that observances. There was no indication that IOSC personnel gave similar consideration to conflicts with the dates of Passover, or that they even realized when Passover was to occur. While the current and former career OSC employees interviewed by the investigative team were aware that the noncareer officials hired into OSC by Mr. Bloch had a particular religious orientation that appeared to support their political viewpoints, none expressed a belief that actions such as the granting of time off for all employees on Good Friday constituted discrimination on religious grounds. Even the complainant who raised this matter in the first instance declined, upon being interviewed by the investigative team, to state tha.ad been the victim of religious discrimination. We concluded, therefore, that the factual content of this element of the complaint was substantiated, but that there was no basis to conclude that the complainants, or other OSC employees, were adversely affected by the timing of April 2004 senior staff conference. Honorable Carolyn N. Lerner 6 • with . Renne was servingInformation developed by unu:sua! circumstances sutrrotmdiiJg the sub:seqttent ~tments were among made in OSC during the were placed in mid-career positions, neither of them, in the estimation of the investigative team's human resources management consultant, possessed qualifications relevant to the positio.eceived. ~r. Bloch's tenure. The investigative appointment Renne who In late 2003-just prior to his appointment in OSC-Mr. Renne Honorable Carolyn N. Lerner 7 and- i- highly respecte~ leave the agency in September pra:c;e~:a8 ~ticproxiim:ltely two years later, the abeyant reassignment was cancelled without further notice. ofllllifll•••• The symmetry of this occurrence-three OSC employees who retained an attorney were all removed, whil.-who were unrepresented but were otherwise similarly situated were allowed to remain with the agency in Washington, D.C.----{;reated the appearance that Mr. Bloch's decisions affecting them may have been motivated by retaliatory considerations. However, the investigative team concluded that the varying situations sunounding each of the employees whose reassignments were rescinded tend to undercut this conclusion. In addition, based on OSC documents obtained by the investigative team, it is quite plausible that the 9 Honorable Carolyn N. Lerner executive's reassignment was deD • ' • . • that the actual costs of relocating the amount that had been budgeted tor this purpose. 10 • I I • • iscovered ar exceeded Therefore, in the absence of evidence definitively establishing a causal link between removals of employees and their representation by counsel, this element of the complaint was not considered to have been proven. • Systemic human resources management violations The complaint alleged that, under Mr. Bloch's leadership, OSC had "abandoned competitive merit-based hiring." To assess the accuracy of this element of the complaint, the investigative team conducted a I 00 percent review of OSC personnel actions and records for the period 2004 through 2005. The team found that a nearly complete exclusion of OSC career managers from their customary role in recruiting and hiring employees for OSC's career positions had occun·ed. While it is a widely-observed and strongly recommended practice, there is no systemic requirement as such within the Federal personnel management system that managers be directly involved in recruiting and selecting candidates for their own organizations. Indeed, in many situations, direct managerial participation is simply not possible. This is particularly the case in larger agencies which have a need to hire substantial numbers of employees on a continuing basis without an ultimate duty location having been identified beforehand. This is, for example, a common practice in law enforcement agencies. However, this context for recruitment and selection of candidates places a particular emphasis on adherence to pre-established staffing plans that are developed by an agency with input from the employees most knowledgeable regarding the positions to be filled-that is, the supervisors and managers of the positions in question. In contrast, the record developed by the investigative team indicates that this simply did not occur in connection with OSC's hiring and assignment practices during 2004 and 2005. There was an absence of input from career-level agency managers, either directly by first-hand participation in selection decisions or indirectly through the agency's adherence to a recruitment plan. In this regard, the investigative team found it to be especially problematic that OSC had an established recruitment plan for hiring attorneys into career positions, but clearly failed to adhere to it. Among other concerns, this placed OSC at risk of failing to meet statutory requirements related to veterans' preference and equal employment opportunity. In addition, while the complainants' terminology, "abandonment of merit-based competitive hiring" implies a universality which the record does not fully support, there was evidence of widespread deficiencies in other personnel management areas as well. Foremost among these was the deficient recordkeeping to document OSC's personnel actions. The investigative team's personnel management auditor noted that having the ability to reconstruct personnel actions from the written record is fundamental to carrying out a personnel management audit and to applying accountability principles within an agency's human resources system. In this light, he opined that the evident inadequacies of the personnel records supplied to the investigative team may have been part of a deliberate attempt to hinder the investigation, because "having as little an audit trail as possible is the best way to avoid accountability for wrongdoing." He also observed that information developed by the investigative team indicated that the Government Accountability Office (GAO), which conducted several reviews of OSC during 2004 and 2005, Honorable Carolyn N. Lerner ll prior to the OIG's involvement, had discovered a similar pattern of inadequate or missing OSC documentation in the areas that it addressed. In closing, we are also providing the attached report to the Director of the Of!ice of Personnel Management and to the current Deputy Director for Management of OMB. Under the principles of the Economy Act, and as agreed between my offtce and the OSC, both the report and all other documents created by the investigative team are the property of, and are controlled by, the Office of Special Counsel, and administrative action in respect of the report's findings is within your jurisdiction. If you have specific questions regarding the role of the Office of the Inspector General in this investigation, please do not hesitate to contact me, at (202) 606-1200, or have a member of your staff contact J. David Cope, Assistant Inspector General for Legal Affairs, at (202) 606-2851. Sincerely, ~f!tFa:r~ Inspector General Enclosure U.S. OFFICE OF PERSONNEL MANAGEMENT OFFICE OF THE INSPECTOR GENERAL FINAL REPORT OF INVESTIGATION INTO MARCH 3 AND 31, 2005 COMPLAINTS FILED WITH THE OFFICE OF SPECIAL COUNSEL DECEMBER 2013 PREPARE!) UNDER THE AUTHORITY Of AN ECONOMY ACT AGREEMENT (31 U,S,C. 1535) BETWEEN THE OFF!CE OF THE lNSf'F.CTOR GENERAL AND THE OFPtC£ OF SPbt:lAL COUNSEL OSC is releasing this document in the public interest. Appropriate redactions have been made to protect individual privacy interests. REPORT OF INVESTIGATION MARCH 3, 2005 COMPLAINT(AS AMENDED MARCH 3!, 2005) OF PROHIBITED PERSONNEL PRACTICES IN THE U.S.OFF!CE OF SPECIAL COUNSEL This is the report of the administrative investigation conducted by the Office of the Inspector General (010) of the U.S. Office of Personnel Management (OPM) into the allegations of prohibited personnel practices and other improper activities made against then-Special Counsel Scott J. Bloch in a complaint filed with the Office of Special Counsel (OSC) on March 3, 2005, and amended on March 31,2005. I. BACKGROUND This matter arose from a complaint filed by a group of OSC employees who, at the time ofthc filing, had been given notice that they would be removed from the Federal service because of their refusal to accept directed reassignments to the OSC' s newly-establislied Midwest Field Office in Detroit, Michigan. The reassignments were associated with a reorganization announced by Mr. Bloch on January 5, 2005. The complainants alleged that they had been subjected to prohibited personnel practices, and sought remedies under the provisions of section 1214 of title 5, United States Code which authorize OSC to conduct investigations and flle administrative actions before the Merit Systems Protection Board (MSPB) against agencies and, in some cases, individua!sl for conunitting such-practices. Because it would have constituted an irreconcilable conflict for OSC to have investigated the alleged misconduct of its own agency head, responsibility for arrru1ging an independent inquiry into the complaint devolved upon Clay Johnson, who at the time in question was the Deputy Director for Management of the Office of Management and Budget (OMB). In an October 5, 2005 letter to OPM Inspector General Patrick E. McFarland, Mr. Johnson asked the OPM-0!0 (OlG) to conduct an administrative investigation of the allegations contained in tl1e employees' complaint, and to provide a report to him. After an extended period of negotiation between the OIG and OSC, this arrangement was tbrmalized in a March 3, 2006 Economy Act agreement (Agreement), which by its tcmlS was to remain in effect until the 0!0 completed its investigative activities and issued a report of investigation. Upon the direction of OMB, OSC funded the casts of the investigation from its appropriated funds. It was also agreed that the 010 would use the investigative authorities conferred upon OSC by Title 5, but OSC specifically declined to extend to the 010 its authorities under title 5, United States Code, sections 1214, 1215, and 1216 to seek a stay, corrective actiVC•C5 most directly involved in reorganization · 6 needed to carry Otlt the reorganization, which.,as directed to modify on an on-going basis. As the investigative team reconstructed the timeframes involved, it appears that the reorganization arrangements were finalized during the week between Christmas 2004 and the New Year's 2005 holiday. m. On the afternoon of January 5, 2005, the reorganization was announced to career OSC employees. They were convened simultaneously in conference rooms at the agency's offices in Washington, Dallas, and Oakland. Via teleconference links, Mr. Bloch stated that OSC was being reorganized, and that employees could obtain information about the reorganization, including their new assignments, by returning to their offices and l.ogging on to the OSC website. Based on interviews it conducted with OSC employees, the investigative team determined that Mr. Bloch had achieved l 00 percent secrecy-and the resulting surprise-among rank-and-file career employees, none of whom had obtained any prior knowledge of the reorganization. Mr. Bloch did brief the OSC career executives individually during the afternoon of January 4 and the morning of January 5, 2005 informing them of the outlines of the reorganization and the manner in which they would be personally affected. n. The reorganization created a new Midwest Field 0!1ice in Detroit, Michigan, and reassigned nine staff members of Investigation and Prosecution Division 3 (lPD 3), division chief, Travis Elliott, a GS-15 attorney, and to Detroit to constitute the displacing the The other headquarters components were realigned to report to the single remaining Associate Special Counsel, with the exception of the Hatch Act Unit, which was designated to report directly to the Spe<:ial CounseL o. Subsequently, many of the OSC employees who were to be reassigned out of Washington retained counsel, and attempted to obtain the retraction of their reassigrunents or, failing that, an extension of their reporting dates in Detroit or Dallas, in the hope that they could locate other employment in the meantime. Some of the individuals designated for reassignment canvassed Senators and Congressmen interested in Federal employee issues to focus attention on their situation. Ultimately, none of the reassignments to the field offices actually took place. All of the atfected IPD 3 employees either obtained employment outside OSC or were separated from the Federal service during March 2005 for refusing to accept their directed reassignments to Detroit or Dallas. One of the · employees reassigned to Dallas obtained other Federal employment, one accepted a lastminute offer of a position with OSC in Washington, and another declined a similar offer and was removed from the Federal service. The employees who were offered the opportunity . . not informed of the reaso.ns why th~d such offers. · relocatwn to t h e but without any explanation being provided instead given an imenm 7 assignment at OSC headquarters Approximately two years later was also without cxp lanation. ton''"'' v p. On March 3, 2005, the employees who had been reassigned to Detroit, and had not found employment outside OSC, filed d1e complaint which became the subject of this investigation. The purpose of this filing was to preserve their rights under OSC statutes to an investigation of their claims of whistleblower reprisal and other prohibited personnel practices and ultimately to file petitions to the Merit System Protection Board (MSPB) seeking corrective action for alleged prohibited personnel practices. An amended complaint was ftled on March 31, 2005. q. Mr. Bloch forwarded the complaint to then-OMB Deputy Director for Management Clay Johnson, noting that it would be a conflict of interest tbr OSC to investigate its own agency head. A formal complaint of prohibited personnel practices had never previously been filed against a Special Counsel, and it was not immediately apparent where jurisdiction to address it should lie. During the ensuing six months, the complaint was forwarded to a number of entities, including the then-President's Council on Integrity and Efficiency and its Integrity Committee and the Offtce of the White House Counsel, none of which believed that it had jurisdiction. In an October 5, 2005 letter to Inspector General Mcfarland, Mr. Jolmson requested that tl1e OIG investigate the complaint. He addressed the jurisdictional issue by directing that OSC and the OIG execute an agreement under the Economy Act (31 U.S.C. 1535), through which the investigation would be conducted by the OlG, using OSC's investigative authorities, with costs being reimbursed by OSC. The O!G quickly and unconditionally agreed to Mr. Johnson's request OSC raised a series of objections to the proposed arrangement, involving Mr. Bloch's expressed interest in remaining personally involved in the case, the amount of funds needed to conduct the investigation (OSC initially proposed that $8,000 would be an adequate budget, but after a review by OMB, Mr. Jolmson directed it to make $! 13,000 available), and the extent of the investigative team's access to OSC documents and employees. Resolution ofthese matters delayed the start of the OIG team's investigation until March 2006. 4. SCOPE AND RESULTS OF THE INVESTIGATION Under the Economy Act agreement with OSC, the O!G's investigative jurisdiction was limited to the matters set forth in the originai and amended complaints against Mr. Bloch. During their interviews with the O!G, the complaiMnts raised one additional allegation of a prohibited personnel practice and made a whistleblower disclosure concerning an abuse of authority by Mr. Bloch. Both of these appeared to be so closely associated with the allegations contained in the complaint that they were included witl1in the scope oftbe investigation. The investigative team addressed every issue identified by the complaint. However, in reviewing the original complaint and fts March 31, 2005 amendment, they observed that there were substantial areas of overlap among the various allegations of legal violations and 8 misconduct. In these instances, we sought to identify the areas of commonality as being tbe principal thrust of the allegations, and focused our efforts accordingly. In addition, several of the allegations appeared to be so closely associated with each other that they could be treated as related portions of a single issue. Therefore, we consolidated a number of separate charges to be treated in a unitary manner. In particular, we addressed several issues regarding improper or wrongful administration of Federal personnel law and regulation within OSC through an analytical survey conducted by a senior human resources auditor who was detailed from OPM to the O!G for this purpose. This review is rep011ed on pages 39 through 44. The results of our investigation are presented on an is;ue-by-issue basis below. ISSUE A: Refusing to enforce s~atutory protections of Federal employees against sexual orientation discrimination. This allegation refers to section 2302(b)(l0) ofTltle 5, United States Code which establishes a category of actions that constitute prohibited personnel practices if taken by agencies against federal employees. This provision designates as prohibited personnel practices actions that (1 0) Discriminate for or against any employee or applicant for employnrent on the basis of conduct which does not adversely affect the peiformance ofthe employee or applicant or the performance ofothers;.,. 5 U.S.C. 1212(a)(2) confers jurisdiction on OSC to investigate allegations of prohibited persmmel practices, and to bring actions before the Merit Systems Protection Board seeking corrective action on behalf of the victims of such practices and disciplinary measures against persons who commit them. BACKGROUND During the tenure of Elaine Kaplan, Mr. Bloch's immediate predecessor as Special Counsel (1998- 2003), OSC determined that 2302(b)(10) should apply to prohibit discrimination in Federal personnel actions on the basis of an employee's sexual orientation. OSC staff attorneys interviewed by the investigative team explained that this policy rested on the underlying theory that an individual's sexual orientation connoted that he/she engaged in a form of conduct which, unless it occurred directly in the workplace, could not be shown to affect the employee's job performance. The issuance of Executive Order (E.O.) 13087 ("Further Amendment to Executive Order l 1478, Equal Employment Opportunity in the Federal Workplace," May 28, 1998) appears to have contributed to OSC's decision to deem sexual orientation discrimination as a prohibited personnel practice. E.O. 13087 states that it is the policy of the Federal Government that its employees are protected against discrimination in employment on the basis of their sexual orientation, OPM issued a June 24, 1999 explanatory memorandum to heads of Federal departments and agencies, following up E.O. \3087, and indicating that it interpreted 2302(b)(!0) to prohibit discrimination based upon sexual orientation. OSC employees who were in the agency during Ms. Kaplan's tenure as Special Counsel told the investigative team that the agency had been looking for test cases to bring before MSPB on this 9 issue, but had not, by the end of her term in office in 2003, found an appropriate case in which the fac1s and procedural posture would allow the issue of sexual orientation to be addressed directly as a matter of law. However, OSC did negotiate settlements in favor of Federal employees in at least two cases where the facts indicated that the sexual orientation of the employee was a contributing factor in personnel actions which had been taken against them. On February 4, 2004-about one month after Mr. Bloch took office as Special Counsel--the material on the OSC website which indicated that 2302(b)(t0) applied to persmmel actions based on an individual's sexual orientation was abruptly removed. The equivalent hardcopy publications, forms, and other informational material were also subsequently withdrawn from use. OSC did not publicly announce these actions until Federal employee groups noticed the website changes and informed the news media. After the appearan.ce of news articles about the changes generated critical comment, OSC issued pl'ess releases which described its actions as an interim step based on tbe determination that "sexual orientation" as refert'ed to in E.O. 13087 did not amount to "conduct" as that term is used in 5 U.S.C. 2302(b)(l 0). ANALYSIS The complaint against Mr. Bloch characterized OSC's decision to discontinue its policy of heating sexual orientation as a form of conduct that was protected tmder 2302(b)(l0) as a refusal to enforce the civil service laws. However, as the investigation proceeded, this matter appeared to present at least two dimensions. First, any finding regarding the allegation as framed by the complainants necessarily requires a determination as to whether the language of 2302(b)(l0) actually can be applied to sexual orientation. In both written material he provided to ti1e OlG and in his interview with the investigative team, Mr. Bloch repeatedly asserted that his position rested on a legal analysis which concluded that a plain reading of the statutory language ("conduct which does not adversely affect the performance of the employee ") cannot reasonably be construed to include one's sexual orientation. He explained that, in his estimation, the essential meaning and intent of the term "conduct' necessarily denote overt action, rather than a state of mind or preference, as is typically associated with the concept of "orientation." During its interviews of curt'ent and tbrrner OSC attorneys who were identified by their peers as being particularly conversant with thi.s issue, the investigative team fotmd that there were supporters for each of the differing interpretations of 2302(b )( 10) taken by OSC during the Kaplan and Bloch administrations. The investigative team concluded that a deterrnination of the legal supportability of Mr. Bloch's action to reverse the Kaplan era policies cannot be made through investigative techniques, but rather must rest on a decision of an appropriate adjudicative body. In the absence of such a decision, the Special Counsel, as a matter of operational reality, had the ability to establish the OSC's position on the issue. Mr. Bloch clearly defined it to preclude the recognition of sexual orientation discrimination as a prohibited personnel practice. As of the date that the investigative team suspended its administrative investigation in late 2007, no adjudicative bodies had issued opinions or orders directly inconsistent with his position. Therefore, we do not believe it call be either proved or disproved by this investigation that Mr. Bloch's actions represented a refusal to enforce Federal personnel law. 10 However, information developed by the investigative team revealed circumstances surrounding OSC's policy change on sexual orientation that are inconsistent with Mr. Bloch's statements to the investigative team that depicted the process as an objective and carefully considered legal analysis conducted with the knowledge and support of OSC career staff. In fact, according to statements of witnesses in OSC and infonnation generated by the investigative team's review of OSC email records, there appears to have been a sort of"crash project" during an approximately four working day period in late January and early February 2004, coinciding with the arrival in OSC of Mr. Renne as the first Deputy Special Counsel appointed by Mr. Bloch, Mr. Renne was specitlcally identified as having personally directed and led the so-called "scrubbing" of material which depicted the scope of 2302(b)(I 0) to include coverage of sexual orientation disc'Timination. According to the testimony of senior OSC career officials, when Mr. Bloch first took office, he sharply limited his contact with the agency's employees. At ~was isolating himself unnecessarily, and urged him to -Emails that Mr. Bloch sent to OSC personnel during indicating that he was deferring any initiatives pending the arrival of his deputy, tend to confirm this depiction. Mr. Bloch did have some level of contact with the senior career officials, and apparently spoke briefly and infonnally with each of them on their views as to whether 2302(b)(l0) protected employees against dis<:rimination on the basis of sexual orientation. The OSC career officials who pmticipated in these conversations did not characterize them as a systematic exploration oftha issue, or as a serious exchange of legal viewpoints in the manner that lawyers may use to test the strength of various lines of argument. Most of the OSC staff, including the career managers and supervisors, stated that they were unaware of and uninvolved with these discussions. Mr. Bloch did solicit the views of Mr. Elliott, who was acting as OSC's congressional relations director pending the arrival ofthe political appointee who Mr. Bloch had selected for the position. Mr. Elliott, who was described in interviews with career staff as being professionally respected, expressed his support for the interpretation given to 2302(b )(l 0) during the Kaplan administration. In his interview with the investigative team, Mr. Elliott indicated that Mr. Bloch quickly and clearly "lost interest" in talking to hint when his opinion becan1e apparent. As for the actual process of removing material from the OSC website, one senior career official who observed the effort characterized it as a frenetic burst of activity that took place late into the evening of one day (February 4, 2004). At that time, Mr. Renne was depicted as intently searching the OSC website with the assistance of a senior career official to identify passages which interpreted 2302(b )( l 0) as extending protection to employees on the basis of their sexual orientation. According to this account, Mr. Renne demanded that OSC's information technology manager remove these materials from the website immediately. OSC email records reviewed by the investigative team made it clear that in the haste to remove material, several passages addressing sexual orientation discrimination were missed, and that fotlow·up deletions from the website continued to be made for some time thereafter, A similar process took place for hardcopy materials, such as inf01mational pamphlets and OSC complaint fonns. OSC either withdrew these items from circulation or superseded them with revised versions that eliminated any reference to the prior interpretation of 2302(b)(l 0) as applying to employees' sexual orientation. !l CONCLUSIONS The investigation identified a series of events that support the inference that Mr. Bloch had decided, before taking offlce as Special Counsel, to reverse the existing OSC policy which deemed sexual orientation discrimination as a form of prohibited personnel practice. Moreover, the timing and urgency with which the elimination of all OSC materials referring to sexual orientation discrimination took place suggest that this was one of Mr. Bloch's highest and most immediate priorities for action by OSC under his direction However, despite the weightiness attached to this matter by Mr. Bloch and his noncareer staff at OSC, the information developed by the investigative team through employee intt'TViews and analysis of emails indicates that the written opinions providing a legal justification for the rescission of prior OSC policy were produced only after the website had been modified. It is also apparent that Mr. Bloch did not coordinate o!l:icially with other interested agencies on this matter. ln fact, the urgency with which OSC pursued its policy change produced unfavorable perceptions regarding its intentions. The investigative team's review of Mr. Renne's email records for the period immediately following the website changes revealed that he ahd Mr... Bloch were seemingly unaware of the possibilities for adverse reception of the changes and that they were unprepared for the negative reactions that did occur. Their emails indicate that they were sui'jltised by the level and intensity of media coverage and that they expressed to each other anger that their actions had attracted unfavorable comment. There was no indication that Messrs. B\och and Renne had intended to announce the policy changes pubUely, and consequently they appeared not to have had a plan for communicating the reasons behind their actions. The very compressed timeframe surrounding the policy the decision to on an this person extensively-often multiple times a day-over a period of several weeks. and edited an anay of press releases and letters to print media, and provided advice on with the electronic media., without compensation or any form of contractual or employment arrangement with OSC. In summary, we found that implementation of the 2302(b)(l0) policy change occurred "on the fly," without a plan to explain or justify it without an apparent intention to announce it publicly, without prior consultation with other interested agencies, and in an apparent failure-whether willful or not-to realize that it affected, or could be perceived as affecting, significant nlUDbers offederal employees. In fact, an o!l:icial White House press release in March 2004 is susceptible to being interpreted to indicate that Mr. Bloch had not infonned or cleared his actions through their channels. Cumulatively, we believe that these factors demonstrate-regardless of the legal corTectness of the policies involved-that Mr. Bloch's conduct of the process through which the policy change was implemented involved a substantial degree of inefficiency and disorganization. 12 Finally, the investigative team adduced facts which reflect that Mr. Bloch and Mr. Renne may have been motivated in their actions by a negative personal attitude toward homosexuality and individuals whose orientation is homosexuaL Foremost among these were the statements witnessed, and described to the investigative team by, retired Army Lieutenant General Richard Tretry, an MPRI vice-president who met frequently with Messrs. Bloch and Renne as part of MPRI's contract work, Mr. Bloch indicated to General Trefry that there was a sizeable group of homosexuals employed by OSC, which had developed during the years prior to his taking office, that he "had a license" to get rid of homosexual employees, and that he intended to "ship them out." Further, in the portions of Mr. Bloch's official e-mail account that were available to the investigative team, there were crude and vulgar messages containing anti-homosexual themes that appeared to have been forwarded from his personal emaiL The investigative team noted that Mr. Bloch, who stated during his interview with them that as a matter of business practice, he routinely deleted all of his email traffic to avoid "cluttering" his computer, had in fact chosen to retain such items, which were insulting to gay persons. Similarly, Mr. Bloch's public media references to Ms. Kaplan contained repeated, negatively-phrased assertions regarding her sexual orientation. For example, in interviews he granted during 2007, Mr. Bloch described her as a 'lesbian activist,~~ a public lesbian, a ''well~known gay activist,n and similar depictions. While Mr. Bloch's statements did not overtly link her public policies to private personal factors, the investigative team observed that his repeated characterizations of Ms. Kaplan in terms of her sexual orientation (as opposed to her professional qualifications as an employment law attorney with the Federal Government, Federal employee unions, and private-sector law firms) suggests that her personal orientation was significant to him. 1 11 11 At a minimum, Mr. Bloch's statements as described above would appear to be violative of the policy of EO 13087 to the effect that employment-related decision making in the Federal sector should not be based on sexual orientation. Further, they tend to undercut Mr. Bloch's own assertions that his position on 2302(b)(IO) was based solely on a rigorous legal interpretation of law and precedent. ISSUER: Violations associated with attempts to limit free speech rights of OSC employees through issuance of a "gag order." This issue involves the allegations that were articulated in the complaint as involving the following maners artributed to Mr. Bloch's actions as Special Counsel: • Violating the First Amendment rights ofOSC employees by issuing a "gag order" which restricted their ability to communicate with parties outside the OSC on "confidential or sensitive internal agency matters.~~ • Violating the Anti-Gag statute by failing to provide guarantees of employees' statutory free speech rights in the "gag order." • Violating the Lloyd LaFollette Act (5 U.S.C. 7211), which assures Federal employees tl1e right to petition or furnish information to Congressional representatives and committees. 13 BACKGROu'ND The documentary •• , ~ted the t "' •·I ;. · ·• ~ t •41. t , Mr. - t o develop a policy statement requiring that official agency be issued through the IOSC. On April9, - s e n t an email titled "Updated language for issuance to staff' to the chiefs of the three IPDs which contained the statement "the Special Counsel has directed that any official ~of the cbmment on or discussion of confidential or sensitive internat agency matters with anyone outside OSC must be approved in advance by an IOSC official." The following week Mr. Bloch . directed the issuance of a follow-up e-mail to the top OSC career executives, which read in part, "Although nobody on my immediate staff saw the final message [reference is to the April 9, 2004 email cited aboveJ before it went out, obviously there was no intent that First Amendment rights, WP A, or other statutory rights of employees be curtailed. Please reassure and communicate that to the staff." ANALYSIS During the investigative team's interviews of persons who were employed by OSC in 2004, it was repeatedly stated by high-ranking career officials that Mr. Bloch had forcefully expressed his urJwppiness regarding unauthorized disclosures ("leaks") to news media of information regarding the policy changes that he was implementing in OSC and the critical press coverage that they had generated. These witnesses stated that Mr. Bloch made it clear that he wanted to prevent such disclosures. His concerns had also become well-knoW11 to OSC's rank and file career employees and were the subject of apprehension among some of them, who feared that coincidences or random, inadvertent remarks would be wrongfully interpreted so as to cast them as the source of the leaks. For example, within the first few months of Mr. Bloch's tenure, Mr. Sklar casually remarked to him that he was acquainted with a top executive of a firm that produced a publication which had printed articles critical of Mr. Bloch's policies. Mr. Sklar believes that he may thereby have been (wrong!Ully) presumed to be a "leaker," and had thus become a target for retaliation. Mr. Elliott expre;"Sed similar concerns that his interim assignment to handle OSC's media and congressional relations between the end of Ms. Kaplan's term and the arrival of Mr. Bloch's noncareer appointee as the agency's communications director may have cast him in Mr. Bloch's eyes as a suspected "leaker" of information to the media and congressional offices. The investigative team obtained additional direct evidence of Mr. Bloch's concerns about "leaking" through its interview with General Trefry, who indicated that both Mr. Bloch and Mr. Renne were extremely concerned with secrecy and security of their activities. In view of these exceptional expressions of concern about "leaking," the OIG investigative team noted lhat the methodology which Mr. Bloch used to develop and convey the "gag order" was disorganized and ineffective. Even though Mr. Bloch clearly wished to control outside dissemination ofinfonnation regarding OSC's decisions and activities, the process he set in 14 motion for developing and issuing the media policy statement was executed in a manner that shielded his involvement, in that the policy was issued in the name af a career o~ ~~··· ~·· Jyor uniformly throughout O S C . emailed it to the other OSC career executives wrthout instructions as to further distribution to their employees or enforcement of its provisions. The subsequent foilow-upemail simply asked the original recipients of the e-mail to communicate the policy to their staffs, without providing specific directions as to the form or content of such communications. .. The investigative team's interviews with employees who were present in OSC during 2004 sug,ges•ted that, to the extent that the policy was communicated to them at all, the senior career · of its intent. Many employees simply received a copy of forwarded through their immediate supervisors. Some not conveyed to them at all. The employees expressed varied opinions as to whether the policy was still in effect in 2006, with some believing that it had been rescinded and others unsure of its current status. However, none recalled any attempts by OSC management to clarify the policy or to enforce it against any OSC employee. In each interview with an OSC employee who was in issued, the investigative team reviewed the language and asked if the interviewee perceived it as inhibiting of speech or their statutory right w1der the Lloyd LaFollette Act to petition or communicate with Congressional representatives or bodies. None of the persons we interviewed indicated that they had interpreted the message as infringing on their speech rights or opined that their on-the-job conduct was in any way affected by the policy. The investigative team also found it difficult to reconcile the accounts of some witnesses regarding the casual manner in which the "gag order" was issued with other witnesses' characterizations of Mr. Bloch's emphatic concerns that leaks of information be squelChed. However, consistent with our observations noted in other sections of this report about careless administration on the part of Mr. Bloch, we believe that this apparent contradiction may simply reflect poor management practices and processes in the IOSC, rather than a lack of interest on Mr. Bloch's part in asserting control over release of information outside OSC. CONCLUSION The complainants made credible assertions regarding Mr. Bloch's repeated expressions of concern and anger regarding the occurrence of "leaks" ofinformation from OSC to outside entities, and appropriately linked the issuance of the "gag order" to his desire to prevent such leaks. However, the plain wording of the order does not appear to support the interpretation that it sought to restrict the speech rights of OSC employees. Further, essentially every current and former OSC employee interviewed by the investigative team expressed a beliefthat the statement was intended to serve the appropriate business purpose of assuring coordination at the top management level for matters on which the agency had to speak authoritatively and with one voice. The investigative team found no evidence upon which it could be concluded that OSC 15 officials acted in a manner that deprived any employee of his or her constitutional and legal rights of free speech. In light of these conclusions, the investigative team does not believe that the allegations in the complaint regarding First Amendment, LJoyd-LaFollette, and Anti-Gag violations in OSC have been proved. ISSUE C: Religious discrimination. This matter appeared in the March 31, 2005 amended complaint. It consisted of allegations that "Mr. Bloch's political appointees" had closed OSC and given employees paid time off for Good Friday in 2004 and 2005, while not providing equivalent treatment of employees on nonChristian religious holidays. In addition, it was alleged !hat Mr. Bloch scheduled a mandatory off-site retreat for OSC senior managers, including certai11 career personnel, during a portion of Passover in 2004. BACKGROUND Tite investigative team obtained information regarding this matter both through testimony of former and cut·rent OSC employees and by examination of email records. It verified that all OSC employees were excused from duty without charge to leave on Good Friday in 2004 (April 9) and 2005 (March 25), and that the April 2004 OSC senior staff retreat at the Tidewater Inn in Easton, Matyland did fall during Passover, the dates of which in 2004 extended from sundown AprilS until Aprill2. ANALYSIS The email record available to the investigative with alTanging the Tidewater conference (principa.lly devoted considerable care to selecting dates that would avoid conflicts with the Christian Holy Week. observances. There was no indication that rose personnel gave similar consideration to conflicts with the dates of Passover, or that they even realized when Passover was to occur. ln a more general context, a number ofth.e current and fonner OSC employees interviewed by the investigations team remarked that the rose persotmel appeared to share the same religious affiliation and attitudes in a mamter that tended to set them apart from others in OSC. The investigative team determined that all rose employees hired prior to January 2007 were Roman Catholic. Based on a review of official email records, it was noted that several of them, including Mr. Bloch, frequently sent messages with a religious content to each other and to outside partie& through the OSC email system. ln addition, they appear to have associated their religious views with political convictions~ and some of their em ails expressed negative perceptions of persons whose beliefs and actions did not contorm to their religiously-derived standards. 16 There were also occasional attempts by persons within !OSC to recruit each other for membership in organizations afftliated with the Roman Catholic Church, including Opus Dei. Mr. Bloch himself had been active for two decades as an officer in the Hillaire Belloc Society, a men's association dedicated to consideration of the life and works ofBelloc, who was the preeminent Roman Catholic writer in Gteat Britain dming the early 20 1h century. There is evidence that Mr. Bloch approached at least one career OSC employee regarding · ' · meetings, This individual was a graduate CONCLUSION While the current and former career OSC employees interviewed by the investigative team were aware that the noncareer officials hired into OSC by Mr. Bloch had a particular religious orientation that appeared to support their political viewpoints, none expressed a belief that actions such as the granting of time off for all employees on Good Friday constituted discrimination on religious grounds. Even the complainant who raised this matter in the tirst instance declined, upon being interviewed by the investigative team, to state that-ad been the victim of religious discrimination. We conclude, therefore, that the factual content of this element of the complaint was substantiated, but that there was no basis to conclude that the complainants, or other OSC employees, were adversely affected thereby. ISSUED: Preferential treatment associated with the Deputy Special Counsel James Renne. !lACKGRQUND 17 ANALYSIS surrounding the appointment of the Mr. Bloch's tenure. This individual OSC's appointment of-reflected circumstances that were suggestive of at least the appearance of preferential treatment ln the conditions o-mp!oyment. hired without any law. aas as a consultant to the investigalive team stated that he did not be held personally accountable for the circumstances o employment, the actions of the OSC officials who appointed -arried at least the appearance of impropriety. l8 identified emails and other documents indicating ,,. ~ ~ • a I r - . ~e in question, less 's---had been hired by OS C. CONCLUSION In · upon may have been an ethically improper exercise of official authority ISSUE E: and highly respectedleave the agency in September o;;-;;o: ""' he irisisted on um,cu:u them to process. Th.- BACKGROUND ~~yreti;ring Voluntary Separation Incentive Pa)'me•nts(colloquiaHy referred to as "buyouts") under authority that Mr. Bloch had requested and received from OPM in September 2004. 19 ANALYSIS . Renne had begun to Mr. Bloch within two Additional information developed by the · . Bloch and Renne perceived CONCLUSION ISSUE F: Mr. Bloch personally recruited and of Law 20 provisionally accredited during part of the time these individuals attended it, and because the surrounding circumstances suggested that Mr. Bloch displayed favoritism for students from that school. thattimei~ attorneys in OSC of their appointments, admitted to practice and each met the qualifications requirements of the position to which ANALYSIS The investigative team developed infonnation that contacted, interviewed, and hired directly by Mr. were the or career staff in OSC. attorneys hired in OSC Bloch stated in respect to P'''"'''"'"•• and on a level with tl1e OSC during the tenure of prior Special Counsels. On at least one other occasion identified by the aprlro:,ch by recruiting and hiring CONCLUSION as the individual appointees themselves were concerned, the who Mr. into OSC attorney positions fully qualitled for the positions received. However, student hired · recruitment practices followed by Mr. Bloch in hiring these persons represented a departure from the existing OSC attorney recruitment plar>" in that there was no attempt to attract an applicant pool from among a widely· based variety of recruitment sources, with selections ultimately being made from among the best-qualified candidates in the group as a whole. 21 ISSUE G: Hiring of unqualified cronies 'Plloi:l1tnoerrtwas reviewed extensively by t h e the reviews it conducted in OSC during 2004- 2005 and was mdlep,entlently examined by the personnel management auditor attached to the OIG investigative team. As previously noted, the investigative team also reviewed every personnel appointment made in OSC during 2004 and 2005. ~ var.ious statements responding to the cr~sm allegations, indicated thatwas not a sinecure, and tha.,roduced a use!ul document regarding human behavior in organizations. However, OSC employees interviewed by the investigative ~ppointment team who were present in the agency during t~od o ppointment claimed to have had little or no workplace contact with- Some had no recollection of him at all, while those who did recall remarked that-ad read a research paper which they characterized as overly long, boring, opaque, and unrelated to OSC's work at their Williamsburg conference in 2004. 22 Neither with the investigative team in developing information regarding their prior association, the existence of which they initially denied. It was necessary to question them extensively, and to confront them with information already known to the investigative team, before they admitted the existence of their past relationship. CONCLUSION While perceptions of the usefulness o~appointment by Mr. Bloc[l varied, the investigative team it was~ improper. However, the appointment a position in OSC is susceptible to being characterized as cronyism. Given the very limited cooperation that these individuals extended to the investigative team on this matter, the existence of undisclosed common tinattcial interests stemming from the prior business association between them could not be foreclosed. If such interests did exist, they would call into question the legality of the employee's appointment under ethics law and regulation. ISSUE H: The reassignments of OSC staff members as part of the reorganization announced in January 2005 constituted prohibited personnel practices. The March 2005 complaint alleged that the reassignments were intended to "purge" the complainants from OSC, thus allowing Mr. Bloch to replace them with his "picks." BACKGROUND On January 5, 2005, Mr. Bloch announced a reorganization of OSC, which involved the following actions: a. A new field office was established in Detroit, Michigan. To staff this office, a group of seven employees from the headquarters-based IPD 3, including the complainant Mr. Sklar and complainants Mr. Elliott an~eceived directed reassignments from Washington, D.C. to Detroit. b. supplanting the existing GS-15 Chiet; who had served in that capacity for 20 years. ' c. Three investigators and an attomey who had previously been assigned to IPD 3, along with another attomey in OSC headquarters, received directed reassigrunents from Washington, D.C. to Dallas, Texas, to serve in equivalent positions in OSC's Dallas Field Office. d. • ·.on-based Hatch Act Unit-which had pr~viously reported to t h e he was reassigned to the was designated to report directly to t ,e eputy pecial Counsel. . 2-3 e. The two remaining Investigation and Prosecution Divisions (IPDs I and 2) were consolidated into a single unit, which was titled as the Washington Field Office. This component, along with the headquarters-based Complaints Examining Unit and the Disclosures Unit, was designated to report to a career SES official in OSC headquarters who had previously directed the Complaints Examining and Disclosures Units. f. The headquarters-based administrative and management support responsibilities, wllich had been split among a number of offices, were consolidated into a single organization headed by a senior noncareer official. OSC's HR Director provided advice and technical support to the !OSC staff regarding procedural asp~d doctunentation of the personnel actions associated with the reorganization . •apparent!y did not pmticipate in the actual decisional process. Based on · developed by the investigations team, other than the limited role played b y no career OSC employee was consulted about, or had knowledge of, any features of the reorgaruz:atio•nprior to the afternoon of January 4, 2005, when Mr. Bloch began to inform career SES members. OSC's managerial, supervisory and working-level employees affected by it had literally no advance notice prior being summoned into a meeting with Mr. Bloch where they were told that details about the reorganization-including specific personnel assignments-would be posted on the OSC intranet. Ultimately, none of the directed reassigmnents of staff members was implemented. The lPD 3 employees who were reassigned to Detroit either found other employment outside OSC or, as in the case of all three complainants, were removed by OSC in March 2005 for failure to accept the directed reassignments. The reassignments of two of the four pe to Dallas were ~the other two employees resigned. Effectuation o eassignment to ~as held in abeyance for approximately two years, after which-as assigned to a newly-created headquarters position. The realignments of the headquarters-based units were all implemented as originally announced; however, none of these involved the removal or geographic reassignment of any employees. TI1e original group of seven IPD 3 employees who had received directed reassignments from Washington, D.C. to Detroit obtained counsel for the purpose of opposing these personnel actions. During January and February 2005, they contacted staff of both Senate and House committees with oversight responsibility for OSC, seeking to focus congressional scrutiny on.the reorganization. Through counsel, they also sought to negotiate with OSC management to rescind the reassignments, and failing that, to extend the date on which they had to indicate whether they would accept the reassignments (and, by extension, the date on which they would be subject to removal for failing to accept them). Meanwhile, various members of this group were active.Jy seeking employment outside OSC, and as they obtained other positions, they terminated their representation by counsel. 24 According to information provided to the investigative team through its interviews with career OSC staff members, most OSC employees had anticipated that Mr. Bloch would implemem a reorganization of OSC in late 2004 or early 2005, and expected that the recommendations flowing from the organizational review of OSC by MPRI would play a substantial role in Mr. Bloch's decision-making. As part of its work, MPRl staff interviewed virtually every OSC employee, either individually or as part of a group, or both. In September 2004, MPRI issued a final report oflts findings and recommendations, which was shared with OSC employees. Further, throughout 2004, Mr. Bloch made repeated references to a forthcoming reorganization in emails to employees and in meetings with employee gmups. The documentary and testimonial record developed by the investigative team revealed that the reorganization was formulated by Mr. Bloch and Mr. Renne very early in their tenure at OSC. At the latest, they had established the concept and a general outline of their plan by · 2004, In general terms, the complainants alleged that their directed rea%ignrnents to the newlyestablished Midwest Field Office constituted prohibited personnel actions, taken (1) in retaliation for the complainants' protected disclosures of various acts of wrongdoing; (2) on the basis of their sexual orientation; (3) the professional association of some of them with fanner Special Counsel Elaine Kaplan; or because of other improper rea