POGO concerned about implicit risk of bias in actions of Office of Special Counsel


The disparities in the OSC’s treatment of Secretary Fudge and Mr. Kushner further illustrate the concerns raised in my May 6 letter. The reason given by the OSC for refusing to consider CNN’s article on Mr. Kushner is implausible – and that leaves the OSC open to legitimate questions about what influenced its disparate treatment of Secretary Fudge.

OSC’s explanation for Patton case does not stand up to scrutiny

POGO’s May 6 letter stated that the OSC accused 17 people appointed by the Trump administration of breaking the Hatch Law, but that the agency had filed a complaint against the MSPB asking for sanctions against one of them. ‘between them – Regional Housing and Urban Development Administrator Lynne Patton, a black woman. Deputy Special Advocate Wagner’s response rightly argues that Ms Patton committed more than one violation, but other arguments are so unconvincing as to cast doubt on the OSC’s ability to perceive a party taken implied.

The letter from Associate Special Counsel Wagner states that “the role of the OSC under the Hatch Act is to serve as a prosecutor, not a decision-maker.” This disavowal of decision-making masks the myriad decisions the OSC makes when deciding who to sue. The OSC decides which public complaints to dismiss, what information to collect for its investigations, which witnesses to interview, whether to say violations have taken place, whether to file complaints against the MSPB, what penalties to seek, which cases to resolve and what terms to include in settlement agreements. While OSC executives turn a blind eye to the potential for implicit bias in this decision-making by their employees, they are unable to reassure the public that the agency’s decisions are consistently free from implied bias.

Associate Special Advocate Wagner goes on to say that the OSC’s treatment of “high-level White House officials” was different from its treatment of Ms Patton because the law prohibits the OSC from filing MSPB complaints against them. , and cites 5 USC § 1215 (b) as support for this assertion. Under what Associate Special Advocate Wagner calls the “bifurcated structure” of this law, she adds that “the CSO is not allowed to send a report to the president and simultaneously file a complaint with the MSPB to inflict a fine to the same official.

The problem with this argument is that it relies on paragraph 1215 (b), which expressly only covers persons appointed “by and with the advice and consent of the Senate”. This provision does not apply to White House officials, as they are not confirmed by the Senate. A different provision, Section 1215 (a), applies to White House officials. Section 1215 (a) directs that the special advocate “shall” pursue a complaint from the MSPB when he finds that an official, other than a person appointed by the Senate, has violated the Hatch Act. Congress left the OSC no discretion in this matter.

Further, contrary to Associate Special Advocate Wagner’s assertion about a “forked structure,” nothing in Article 1215 prohibits the OSC from sending an investigative report to the President and simultaneously file a MSPB complaint against a White House official. The MSPB complaint could seek fines against the White House official, as well as a reprimand and ban on future employment in positions not appointed by the president, and the investigative report could include, for example, a recommendation that the president dismiss the manager.

Offering another explanation, Associate Special Advocate Wagner says the Constitution prohibits the CSO from filing an MSPB complaint against a person appointed by the president. POGO’s May 6 letter anticipated this argument and pointed out that White House officials are not constitutionally immune from administrative fines for employment-related violations. We reminded the OSC that two White House officials, Senior Advisers Ivanka Trump and Jared Kushner, have been given administrative fines under the Ethics in Government Act. In her letter, Associate Special Counsel Wagner responds that, unlike the Hatch Act, a “search”Imposes fines under the ethics law in the government. But the distinction it implicitly draws is meaningless because a constitutional ban on fines would apply, whether the courts or federal agencies imposed them. The underlying assumption is also incorrect. The Law on Ethics in Government allows the courts to impose certain fines and the executive branch to impose others. It was the executive that imposed the fines on Ms. Trump and Mr. Kushner.

There may be a legitimate explanation for the different treatment of the OSC towards Ms Patton and White House officials, just as there may be a legitimate explanation for the decision to hold Secretary Fudge accountable for the conduct that the OSC. allowed Mr. Kushner to commit with impunity. But OSC has not yet offered one. This leads to reflection on the insidious ways in which implicit biases can creep into decisions undetected.

OSC issues are on its own initiative

The subjectivity of the OSC’s Hatch Act enforcement raises questions about office processes. An audience questioning whether an implicit bias influences the decisions of the OSC has only examples of inconsistent application from which to glean clues. It should come as no surprise, then, that this audience reacts with skepticism to the CSO’s selection of a black woman to be the first politically appointed person it has targeted with a complaint against the MSPB in 20 years. It should also come as no surprise that this skepticism resurfaced when, shortly after, the OSC berated another black woman for conduct she refused to reprimand a white man for committing. Whether or not an implicit bias is at work here, the subjectivity of the OSC’s approach is an issue that makes these questions inevitable.

This subjectivity was also evident when the CSO treated the “tea party” and “resistance” movements differently.

During the Obama administration, the OSC declared that federal employees could participate in tea party activities at work without breaking the Hatch Act, deeming “tea party” to be a “generic term” and not a ” partisan political group ”. of willful blindness that the Tea Party is commonly understood as a movement within the Republican Party. Ultimately, the distinction between a movement within a party and the party itself is a matter of perspective on which people may disagree. But this is where the problem lies.

The OSC made a very different decision when it tackled virtually the same issue about the “resist” movement. When the OSC gave a right-wing movement the benefit of the doubt that it was not actively supporting a candidate or party, the OSC erred in concluding that a movement associated with the center and the left was ” inextricably linked to the president’s electoral success (or failure). The OSC should have recognized that this asserted link to the president’s electoral success was a matter of opinion when it felt compelled to recognize that the term “resist” had a broader meaning that “generally referred to the ‘opposition to the policies of the administration’. Nonetheless, the OSC said employees could violate the Hatch Act if they used the amorphous term “resist” at work. The OSC found that employees’ use of another phrase, “Black Lives Matter,” did not implicate the Hatch Act, pointing out that the phrase was a “generic term” for a movement that had no no leader, involved various groups and started organically. online – factors that the OSC did not recognize also applied to the term “resist”.

In the same directive in which the OSC addressed the movement to “resist”, the OSC announced that an employee could violate the Hatch Act by simply discussing policy matters without referring to a candidate. As you know, POGO opposed this directive at the time, warning that discussions unrelated to a political candidate or election are just the free expression of disagreement with a policy, which the Hatch Act expressly authorizes. We added, “This new directive places the OSC in the position of having to create a subjective and impossible to defend test to decide when policy matters are sufficiently partisan – a role that the Hatch Act does not create for the OSC. ” These inconsistent results, a direct product of the CSO’s approach, have also raised suspicion from Congress. The representative at the time, Elijah Cummings (D-MD) wrote: “The new guidelines are so out of step with previous CSO interpretations of the law that they raise concerns over whether the CSO will act. indulges in inappropriate political activities.

The OSC’s treatment of other matters was similar. For example, the OSC dismissed a complaint against White House press secretary Sarah Huckabee Sanders, a white woman. On Election Day in 2018, Sanders released an official statement extolling public support for President Trump and saying, “He has clearly made a choice for the American people: Tonight we can continue on the path to prosperity and prosperity. American security or we can back off. ”At the time, polling stations in all states across the country were still open and polls in western parts of the country would remain open for hours.

The lack of objective standards and uniform application leaves federal employees guessing what conduct is permitted, and this will continue to raise questions about implicit bias or other improper motives. Rather than publishing defensive explanations for impenetrable decisions, the OSC can do better by adopting objective standards and applying them consistently.


I urge you to rise to the challenge of making the OSC part of the solution in a country plagued by systemic racism since its inception. Instead of denying the possibility of a problem, the OSC should assess the reasonableness of the public’s concern about a black woman being the first political appointment in two decades that the OSC has chosen to pursue. The OSC should also keep in mind that the last case in which the office prosecuted a political appointee before Ms Patton — 21 years ago — involved a politically appointee who is a Native American, William Yellowtail.

The guilt or innocence of Mrs. Patton, Secretary Fudge and Mr. Yellowtail is irrelevant. Why the OSC has not filed MSPB complaints against other politically appointed individuals is the question the OSC has not satisfactorily answered. Whether or not an implied bias has motivated the OSC’s past actions or not, you can offer the public no assurance that the implied bias will not motivate future actions if you are not on your guard.

As I indicated in my letter of May 6, POGO remains available and eager to help.


Danielle Brian

Executive director

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