The OSC Process: What Happens Once An Employee Discloses
Eligible individuals are encouraged to report fraud, waste, abuse, or safety concerns directly to OSC. Disclosures must be based on credible information, such as first-hand observation or documents, and may be supported by sworn affidavits from witnesses. OSC cannot rely on mere speculation or unsupported second-hand information in making its determination.
Once a federal employee discloses one of the five types of wrongdoing (violation of a law, rule, or regulation; gross mismanagement; a gross waste of funds; an abuse of authority; or, a substantial and specific danger to public health or safety), OSC interviews the federal employee by telephone and all material information provided will be considered.
OSC will evaluate the information provided by the whistleblower to determine whether there is a substantial likelihood that the information discloses: a violation of law, rule, or regulation; gross mismanagement; a gross waste of funds; an abuse of authority; or a substantial and specific danger to public health or safety. To meet the substantial likelihood standard, there must be a significant probability that the information reveals wrongdoing that falls within one or more of these specific categories. In its evaluation, OSC considers the strength, reliability, and credibility of the disclosures. If the information is insufficient to meet a "substantial likelihood" test, OSC will explain in this interview, in general terms, what types of additional information might suffice to meet this test.
If a whistleblower believes that wrongdoing took place but cannot provide sufficient information to support that assertion, in most instances, OSC will not be able to refer the allegations to the head of the agency for an investigation. If OSC does not refer the allegations, OSC will notify the whistleblower and provide information about other offices available for receiving disclosures.
OSC may find that all, none, or part of what an employee discloses meets the substantial likelihood test; thus, OSC may refer only some of the information provided by the employee. The employee will have an opportunity to review the information OSC refers to the agency for investigation. In its referral letter, OSC strongly recommends that the agency interview the whistleblower first (assuming the employee has not requested confidentiality), which will enable the employee to provide additional information and an explanation of their allegations.
If OSC determines that a disclosure meets the substantial likelihood threshold, the Special Counsel refers the disclosure to the appropriate agency head, who is required to investigate. For example, a disclosure about the Federal Aviation Administration would go to the Secretary of Transportation. A disclosure about U.S. Fish and Wildlife Service would be referred to the U.S. Department of the Interior. OSC does not, itself, have legal authority to investigate disclosures.
When OSC refers allegations for investigations based on finding a substantial likelihood of wrongdoing, the law requires the agency’s report to spell out the basis for the investigation, the manner in which the investigation was conducted, and a summary of the evidence gathered. The report must also list any apparent violations found and include a description of any action to be taken as a result of the investigation. OSC does not decide who within the agency conducts the investigation. (Agency heads frequently task their Office of Inspector General with this responsibility.) Nevertheless, the agency report must be reviewed and signed by the head of the agency, unless that authority is specifically designated.
The law requires agency heads to complete the investigation and report back to OSC within 60 days. Agencies may request extensions of time to complete the investigation and report. These requests must be in writing and state with specificity why the agency needs additional time. OSC will grant an extension only upon a showing of good cause.
Once OSC receives the agency’s report, the whistleblower is given the opportunity to review and comment on the agency’s report. The Special Counsel then determines whether it contains all the required information and its findings appear “reasonable.” This standard of “reasonableness” is met if the report’s findings and conclusions are credible, consistent, and complete, based upon all the information presented by all parties. OSC then transmits the report, along with the whistleblower’s comments and the Special Counsel’s findings, to the President and the congressional committees with oversight responsibility.
If the investigative report reveals evidence of a criminal violation that the agency has referred to the Attorney General, the report will not be sent to the whistleblower and it does not become part of the public file. Instead, the agency is required to notify the Office of Personnel Management and the Office of Management and Budget of the referral to the Attorney General.