The C'est Moi Interview With The Office of Special Counsel

3 May, 2007

The following interview was conducted via phone and e-mail correspondence by Megan Donovan with Mr. Loren Smith, Director of Congressional and Public Affairs for the Office of Special Counsel.
The Office of Special Counsel has recently launched an investigation surrounding the U.S. Attorney firings and specific GSA activity with regard to possible executive violations of both USERRA and the Hatch Act.

M. DONOVAN: A lot of people are probably not familiar with the Office of the Special Counsel. Can you briefly explain what the role of the OSC is?

L. SMITH: The U.S. Office of Special Counsel is an independent watchdog agency established in the late 70’s as part of the post-Watergate reforms. We have four main areas of statutory responsibility involving federal employees and applicants.
1) safeguarding and facilitating whistleblower disclosures,
2) investigating and prosecuting certain employment complaints known as Prohibited Personnel Practices, with a special focus on whistleblower reprisal,
3) enforcing the civilian job rights of military service members under a law known as USERRA, the Uniformed Services Employment and Reemployment Rights Act of 1994, and
4) enforcing the Hatch Act, the law that restricts certain political activity by government employees.


M. DONOVAN: Can you explain exactly what the Hatch Act is? Who is it primarily meant to protect?

L. SMITH: The Hatch Act is a law enacted in 1939 to prevent the machinery of government from being used for partisan political purposes. It is designed to protect taxpayers, including federal workers, from having their government resources used to advocate in partisan elections.

M. DONOVAN: The L.A. Times has claimed that the current investigation stems from two separate investigations your office launched within the last few weeks. The first one concerns former U.S. Attorney David Iglesias. The second concerns a series of Power Point presentations given by aide to Karl Rove, J. Scott Jennings, and made at the General Services Administration this year. Is this correct?

L. SMITH: Essentially, yes. Regarding the second investigation, it would be more precise to say that we’re investigating that event at GSA, including the comments made by GSA Administrator Lurita Doan. I must also add that we have other matters, not yet public, that dovetail with these two investigations and contributed to the determination to initiate the broader investigations.

M. DONOVAN: Can you elaborate on how the original complaints were initiated?

L. SMITH: Mr. Iglesias filed with our agency on April 3rd, alleging violations of both USERRA and the Hatch Act. In the GSA matter, we also received a complaint.

M. DONOVAN: What led you to expand the investigation into one with a broader scope? Is Karl Rove a focal point for your investigation?

L. SMITH: It became apparent that OSC would be shirking its responsibilities under the Hatch Act if we failed to examine the possibility that unlawful political activity was occurring elsewhere within the executive branch. As to the focal points, everyone within the executive branch is covered by the Hatch Act save the President and the Vice President, but mainly we are focused on Mr. Iglesias’ complaint and the events surrounding the briefings by the White House Office of Political Affairs. It would be premature for us to say we are targeting individuals at this point.

M. DONOVAN: The OSC is defined as an "independent federal investigative and prosecutorial agency." Does the agency have complete autonomy? Can you make clear for us how the OSC handles the disposition of cases? - Be they civil remedies or criminal findings.

L. SMITH: OSC is autonomous, although we depend on Congress and the President for our annual appropriations. Under the Hatch Act, we have the authority to investigate any allegation of wrongdoing as defined by the statute. Then, if we believe we can substantiate a violation, we file for disciplinary action with the Merit Systems Protection Board. The presumptive penalty under the Hatch Act is removal, although that could be lessened to a suspension.

An exception is the category of individuals who have received Senate confirmation, known as PAS – Presidentially-Appointed, Senate-confirmed. This would include cabinet heads as well as many agency heads, including that of GSA. In these cases, OSC would still investigate, but rather than filing with MSPB, we would send a letter with our Report of Investigation to the President informing him of our findings and recommendations.

In either category (PAS or non-PAS), if we find coercion of federal employees with regard to political activity (see title 18, section 610 of the US Code), we could also refer the case to the Department of Justice for criminal prosecution.

M. DONOVAN: What are your first steps in this investigation; we understand you have subpoena power, can you anticipate when that phase of the investigation might begin, and can you tell us today who will, at least initially, be subpoenaed?

L. SMITH: We do have subpoena power, although we hope to avoid issuing subpoenas by receiving positive and timely responses to our initial information requests. Regarding the timeline, I cannot comment – both due to the sensitive nature and the unpredictable nature of such investigations.

M. DONOVAN: How is testimony to the OSC handled? Is this deposition style sworn testimony?

L. SMITH: Generally, statements are taken under oath.

M. DONOVAN: The OSC has already come under some scrutiny regarding The Office of Personnel Management's investigation into the OSC. What would you say to your critics on the merits of that probe and on your ability to thoroughly and objectively investigate this matter unimpeded by it?

L. SMITH: OSC is the agency charged with enforcing the Hatch Act – as I mentioned before, we would be derelict if we failed to perform these investigations. The OPM Inspector General investigation is an unrelated matter; however, it is worth noting that the task force we have created to investigate this matter is led by a career employee, and is composed entirely of career employees.

M. DONOVAN: Can you tell us: If congressional testimony continues, would any witnesses appearing there be free to testify on matters that are a part of an ongoing investigation by your agency?

L. SMITH: Yes. Please note that our investigation is independent and not coordinated with any other investigation of these matters.

Mr. Smith allowed us to submit these brief follow-up questions:

To his previous response:

L. SMITH: Mr. Iglesias filed with our agency on April 3rd, alleging violations of both USERRA and the Hatch Act. In the GSA matter, we also received a complaint.

M. DONOVAN: (AS A FOLLOW UP): Are you able to tell us who filed the complaint regarding the GSA matter?

L. SMITH: No - OSC almost never comments on the identities of those who file with our agency. Mr. Iglesias is an exception because he released OSC from our obligations under the Privacy Act.

To his previous response:

L. SMITH: We do have subpoena power, although we hope to avoid issuing subpoenas by receiving positive and timely responses to our initial information requests. Regarding the timeline, I cannot comment – both due to the sensitive nature and the unpredictable nature of such investigations.

M. DONOVAN: (AS A FOLLOW UP): Are you able to tell us if any such requests for information have been made to date?

L. SMITH: In general, we won’t be issuing comment on specific details of the investigation, including the status of information requests.

We extend our appreciation to Mr. Loren Smith for his candor and for being so generous with his time.

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OSC, office of special counsel, U.S. Attorney firings, investigation, David Iglesias, Loren Smith, Scott Bloch, Karl Rove, Lurita Doan, GSA, Gonzales, USERRA, Hatch Act, White House, executive branch, OPM



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