6.Federal Whistleblower Statement, DoL, OSC, GAP (Dr. Darrell Whitman)
5 October 2018
Dr. Darrell L. Whitman (GS-12)
FEDERAL WHISTLEBLOWER REPRISAL ALLEGATIONS Against
THOMAS E. PEREZ, Secretary U.S. Department of Labor (DOL) and Dr. DAVID MICHAELS, U.S. Assistant Secretary of Labor for Occupational Safety and Health (OSHA) and CAROLYN N. LERNER/HENRY KERNER/MARK COHEN/ADAM MILES/TRISTAN LEAVITT Office of the U.S. Special Counsel (OSC) and LOUIS CLARK/TOM DEVINE Government Accountability Project (GAP)
SUBJECT: Federal employees assigned to the Office of the U.S. Special Counsel (OSC) engaged in an organized criminal effort,1 with employees of the Government Accountability Project (GAP), a 501(c)(3) nonprofit public interest group, in order to circumvent legitimate agency investigations into credible reports of agency wrongdoing involving senior level federal employees.2
OVERVIEW: Dr. Darrell L. Whitman, a Regional Investigator assigned to the Occupational Safety and Health Administration (OSHA) Whistleblower Protection Program (OSHA-WBPP), has been the subject of a prolonged multi-year pattern of federal whistleblower retaliation resulting from his notification to the Department of Labor (DOL) Secretary Thomas E. Perez of systemic agency corruption occurring within the Occupational Safety and Health Administration (OSHA) under the direction of U.S. Assistant Secretary of Labor for Occupational Safety and Health, Dr. David Michaels.
Issue: Dr. Darrell L. Whitman identified, via his chain-of-command, that there was a systemic disregard by Occupational Safety and Health Administration (OSHA) responsible management officials for compliance with statutory mandates to protect private and federal sector whistleblowers from retaliation when providing credible reports of serious threats to public safety, health and financial security. Instances include: ongoing falsification of environmental tests by the nation’s largest industrial environmental testing laboratory (TestAmerica); failure to safely decommission nuclear power plants (Humbolt Bay); failure to protect private sector employees (Federal Express) reporting wide-spread violation of aircraft safety regulations mandated by the Federal Aviation Administration (FAA); violation of Department of Transportation (DOT) regulations by Department of Defense (DoD) contract carriers (M3 Transport LLC-SLT Expressway Inc.) distributing hazardous material and explosives via the inter-state transportation network; and failure to conduct timely investigation into violation of Security and Exchange Commission (SEC) regulations by major financial institutions (Wells Fargo Bank) creating fraudulent customer accounts.
Retaliation Against Federal Employees for Whistleblowing: Dr. Darrell L. Whitman, along with the entire team of attorney-investigators, assigned to the Occupational Safety and Health Administration (OSHA), Region 9 Whistleblower Protection Program (WBPP) were systematically purged from the Whistleblower Protection Program, beginning in August 2014, via a pattern of gross mismanagement, abuse of authority, prohibited personnel practices and whistleblower retaliation.
Conducting retaliatory investigation: In response to Dr. Darrell L. Whitman report to DOL Secretary Thomas J. Perez reflecting a “culture of corruption within the Occupational Safety and Health Administration (OSHA), a Region 9 retaliatory investigation of Dr. Whitman and four other Regional Investigators3 was undertaken to justify removal of all federal attorney-investigators assigned to OSHA Region 9
- Federal Inspector General (IG) Loss of Independence and Objectivity: Following Dr. Darrell L. Whitman demand that the Department of Labor (DOL) Inspector General (DOL-IG), Scott S. Dahl, initiate an investigation into senior leader misconduct within the Department of Labor (DOL) and Occupational Safety and Health Administration (OSHA); the DOL-IG, Scott S. Dahl, declined the demand to conduct an investigation into senior leader misconduct
- Removal from Federal Service: As a result of federal whistleblowing, Dr. Darrell L. Whitman was removed from federal service under the pretext of expressing a “lack of condor” during a hearing concerning personnel policy or practice or other general condition of employment, on 19 December 2014.
OBSTRUCTION OF LEGITIMATE AGENCY INVESTIGATION BY THE U.S. SPECIAL COUNSEL:
- Failure of the U.S. Special Counsel, Carolyn N. Lerner, to Safeguard the Merit System and Protect Federal Whistleblowers: In January 2015, Dr. Darrell L. Whitman filed an OSC Form 12 Whistleblower Disclosure of Agency Wrongdoing (DI-15-1950) with the U.S. Special Counsel, Carolyn N. Lerner, disclosing serious agency wrongdoing and the inability/reluctance of the DOL- IG, Scott S. Dahl, to properly perform the mandate of his federal office
By intentionally delaying the issuance of a mandatory 45-Day “substantial likelihood” finding, required within 45 days of receipt by the Office of Special Counsel (OSC) for over 1,273 days, the
U.S. Special Counsel was complicit in ensuring that the evidentiary base (witness statements/documentation) needed to properly substantiate/non-substantiate allegations was sufficiently degraded making legitimate agency investigation impossible.
- Failure of the U.S. Special Counsel, Henry Kerner, to Safeguard the Merit System and Protect Federal Whistleblowers: In July 2018, Dr. Darrell L. Whitman filed an OSC Form 12 Whistleblower Disclosure of Agency Wrongdoing (DI-18-4904) with the U.S. Special Counsel, Henry Kerner, identifying systemic failure with-in the Office of the U.S. Special Counsel to safeguard the merit system and protect federal whistleblowers
Rather than take proactive steps to acknowledge and correct known internal agency deficiency, Henry J. Kerner, had his Associate Special Counsel General Law Division/former Merit System Protection Board (MSPB) Judge, Anne Wagner, inappropriately use her position to conceal the fact that U.S. Special Counsel, Henry J. Kerner, refused to make proper agency head notification (Chief Executive) and order a 60-Day investigation into a credible report of wrongdoing occurring within the Office of Special Counsel (OSC).
Additionally, the U.S. Special Counsel refused to make a 45-Day “substantial likelihood” finding avoiding the triggering of formal investigation and notification of receipt of a credible report of wrongdoing, see 5 U.S.C. §1213.
- Obstructing a U.S. Special Counsel OSC-11 Complaint of Prohibited Personnel Practices (PPP): On 29 March 2016, Dr. Darrell L. Whitman filed an OSC Form 11 (MA-16-3007) Whistleblower Complaint of Prohibited Personnel Practice (PPP) with the U.S. Special Counsel, Carolyn N. Lerner.
- Following the systemic pattern of legal obfuscation resulting in the inability/reluctance of the U.S. Special Counsel to investigate OSC Form 11 (MA-16-3007) to the extent necessary to determine whether there were “reasonable grounds to believe” that a prohibited personnel practice occurred, existed, or was about to be taken.
- After conducting internal a U.S. Special Counsel “investigation” for over 800 days, the U.S. Special Counsel elected to close the on-going OSC-11 (MA-16-3007) investigation, after discovering that Dr. Darrell L. Whitman had severed his relationship with the Government Accountability Project (GAP).
1 A scheme or artifice to deprive another of the intangible right of honest services, see 18 U.S.C. §1346.
2 The Whistleblower Protection Act (WPA) is a U.S. federal law that protects federal whistleblowers, who report the existence of an activity constituting a violation of law, rules, or regulations, or mismanagement, gross waste of funds, abuse of authority or a substantial and specific danger to public health and safety, see 5 U.S.C. §2302(b)(8)/5 U.S.C.
§2302(b)(9)
3 Susan Kamlet, Janet Leader, Sewali Patel; and Blake Wu
- Additionally, the U.S. Special Counsel made the arbitrary and capricious demand that Dr. Darrell L. Whitman request all U.S. Special Counsel records, via the Freedom of Information Act (FOIA), knowing that Dr. Darrell L. Whitman would be denied timely release of records essential to meeting the uncompromising timelines imposed by the Merit System Protection Board (MSPB), See 5 C.F.R. 1800.1(b)(3).4
This arbitrary and capricious FOIA action was direct retaliation for demanding proper performance of duty by the U.S. Special Counsel in meeting his responsibility to safeguard the merit system and protect federal whistleblowers.
IMPACT: The systemic failure of the federal executive to effectively protect private and public sector whistleblowers is a grave threat not only to public safety, health, and financial security, but also to the ethical integrity and overall efficiency of the federal government.
The systemic effect of unaddressed corruptive behavior, demonstrated by the GAP/OSC nexus, degrades the capacity of the federal government to adequately serve the public interest and reflects a decline in the respect for law, which underpins the Federal Merit System which governs the behavior of 2.3 million federal employees.