OSC and CIGIE Reach Agreements for Investigation Referrals
This case law update was written by Conor D. Dirks, an attorney at the law firm of Shaw Bransford & Roth, where since 2013 he has represented federal officials and employees in all aspects of federal personnel employment law. In addition to his work on behalf of government employees, Mr. Dirks has successfully defended small and medium-sized government agencies against EEO complaints and MSPB appeals of agency disciplinary actions.
On November 3, 2020, the United States Office of Special Counsel (OSC) announced that it had reached two agreements with the Council of the Inspectors General on Integrity and Efficiency (CIGIE). A statement by OSC claimed that the “core goals of the agreements are to protect the independence of the respective Inspectors General and provide better outcomes to whistleblowers who report allegations of wrongdoing by OIGs.” The agreements are “the result of a years-long effort to clarify standards of procedure for such disclosures.”
The new procedures outline what OIGs should do when OSC makes a “positive determination” about a disclosure of wrongdoing allegedly committed by individuals subject to CIGIE’s Integrity Committee oversight. A “positive determination” is a determination by OSC that the information disclosed is, or is substantially likely to be, wrongdoing under their jurisdiction. Pursuant to 5 U.S.C. § 1213(c)(1), OSC refers a “positive determination” for investigation to the head of the agency concerned.
Here, the agreement provides that 5 U.S.C. § 1213 referrals go to the Inspector General for all complaints against establishment OIG officials subject to Integrity Committee oversight.
For disclosures against non-establishment IGs, the referral instead goes to the agency head, but OSC agreed to advise the agency head to delegate their review authority to the IG, who in turn would submit the matter for potential investigation to the Integrity Committee. For disclosures against covered officials other than the IG at non-establishment OIGs, OSC agreed to designate the IG as the agency head and initial recipient of the referral.
The agreement states that its standards “set forth a framework for the IC and OSC to work together to ensure that the IC’s review provides OSC with the needed findings for OSC to fulfill its responsibilities under Section 1213.”
In all cases, after a referral to the IG for their review, the IG must transmit the referral to the Integrity Committee. It then falls to the Integrity Committee to “conduct its regular process of review…to determine whether to refer the matter to the IC Chairperson for investigation.” If the matter is not referred for investigation, the Integrity Committee is responsible for drafting an explanatory letter of the decision not to refer the matter. The letter must include the information necessary for reports back to OSC under 5 U.S.C. § 1213(d), and the IC is responsible for forwarding the letter to OSC. If the matter is referred for investigation, the Chairperson of the Integrity Committee must prepare a Report of Investigation for production to OSC.
However, the new procedures allow OSC to review any explanatory letter for reasonableness and sufficiency, just as if it received a full report from the agency. If OSC does not accept the explanatory letter, it can coordinate with the IG and the IC to gather additional information and/or arrange for an alternate resolution, such as making arrangements for “a disinterested third-party OIG that is not currently on the IC” to investigate the disclosure instead.
After all of these steps, OSC is responsible for providing a copy of the explanatory letter or ROI back to the original complainant for written comment. Once finalized, the explanatory letter or ROI is sent by OSC to the President of the United States and the congressional committees with jurisdiction over the agency where the alleged wrongdoing took place.
Read the full memorandum, with new procedures attached, here.
For over thirty years, Shaw Bransford & Roth P.C. has provided superior representation on a wide range of federal employment law issues, from representing federal employees nationwide in administrative investigations, disciplinary and performance actions, and Bivens lawsuits, to handling security clearance adjudications and employment discrimination cases.