Human Rights

Bush's House Homophobe

The Office of Special Counsel exists to protect federal workers from job discrimination and whistle-blowing retaliation. Here's how Scott Bloch turned it into a haven for gay-bashing and partisan politics.
Three million employees of the federal government rely on one fairly obscure office for protection against job discrimination, retaliation for whistle-blowing, political hackery, secrecy, and partisanship. Tragically, the man who runs that agency, the Office of Special Counsel (OSC), is a gay-hating, secretive, partisan, political hack.

That man, Scott Bloch, is decimating the ability of government employees to turn in their bosses for wrongdoing -- which is apparently the way George W. Bush wants it. After all, Bush has spent five years replacing the government's inspectors general -- each agency's watchdog for investigating whistleblower complaints -- with partisan hacks. (See Rep. Henry Waxman's report.) That means more waste, more fraud, and more abuse of taxpayer dollars. It also means less accountability for Bush-administration appointees who pursue their own ideologically driven prejudices.

After a little more than a year running the independent, 100-person OSC, Bloch is already facing a world of scrutiny. Two Senate committees are planning oversight hearings. US representatives have made public accusations. A watchdog group is collecting horror stories. And last month, the Bloch problem officially landed in Bush's lap, when a complaint lodged by current and former OSC employees was officially referred to the Office of the White House Counsel for action. "President Bush will have to decide whether this gets investigated or buried away," says Debra Katz, an attorney for the OSC employees.

Their allegations run the gamut. They claim Bloch has denied help to gay workers who assert sexual-orientation discrimination; dismissed hundreds of whistleblower and discrimination complaints without any investigation; issued illegal gag orders and reassigned or fired employees he suspects of leaking information about him; and left critical staff vacancies open, while hiring numerous unqualified friends at high salaries for unnecessary administrative positions. Worse, they allege that he has politicized what should be a nonpartisan office by squashing investigation into whether Condoleezza Rice had broken campaign law, but speedily pursuing allegations against John Kerry; and vigorously pursuing petty complaints against Democrats and Green Party candidates, while burying complaints against Republicans.

That's quite an abrupt change from the previous OSC special counsel, Clinton appointee Elaine Kaplan -- a union-friendly, open lesbian. It's not surprising that many of the staffers who liked Kaplan don't like Bloch. What is amazing is that the current and former OSC employees who bring these allegations fear retaliation from the very office established to protect federal employees from such retaliation. "I really do think he'll take reprisal action" against subordinates for speaking to the Phoenix, says one current employee, who asked that his name not be used. "Folks are really quite terrified."

The OSC is known mostly for helping whistleblowers who have suffered retaliation, but it also investigates discrimination -- in fact, it has long been the one and only place for most federal employees to get help in cases of alleged discrimination on the basis of sexual orientation. (The Equal Employment Opportunity Commission does not redress sexual-orientation discrimination.)

Now, thanks to Bloch, victims of sexual-orientation discrimination have no recourse -- people like Michael Levine, a gay, 32-year Forest Service employee in California. Levine says he was harassed and suspended after co-filing a complaint against a fellow employee's personal use of office resources. According to a witness, the personnel officer who came after Levine said during the process, "Don't you just hate these fucking faggots?"

Levine filled out an OSC complaint form in November 2003, including a letter from the witness. A year later, without any investigation, the case was judged to have no merit and closed.

"That was appalling," says one former OSC investigator who has seen both the Levine complaint and the OSC's response. "That is a no-brainer, that should be investigated."

Not, apparently, according to Bloch, who has publicly indicated that he believes the OSC's statute covers discrimination based on off-duty sexual conduct, not on sexual orientation per se. In other words, according to Bloch, discrimination against an employee for having same-sex relationships can be investigated by the OSC, but discrimination against an employee simply for being homosexual cannot, because that is not conduct. This tortured reading of the statute is contrary to White House and OSC interpretation dating to the Reagan administration.

During Bloch's confirmation process in the fall of 2003, senators suspicious of his beliefs asked him directly about his interpretation. Bloch's answers were vague. Sen. Daniel Akaka submitted a series of written follow-up questions to get Bloch to clarify. His four-page response to Akaka talked around the question. For instance, asked directly whether he agrees that the statute covers sexual orientation, Bloch wrote: "I will not fail to enforce if a claim of sexual orientation discrimination comes to my office that shows through the evidence that the statute has been violated." Faced with this mumbo-jumbo, Sen. Carl Levin submitted yet another follow-up, which Bloch again managed to answer without answering.

Bloch was playing possum to get confirmed. In February 2004, a month after taking office, he began a "legal review" to determine whether the statute covers sexual-orientation discrimination. At the same time, Bloch ordered all references to sexual-orientation discrimination scrubbed from the OSC Web site, including materials designed to educate employers and employees about the law.

His actions got leaked, embarrassing the White House, which announced in March that the Bush administration believes that the OSC covers sexual orientation. The day after that declaration, Bloch announced via press release that his legal-review project was complete, and that sexual-orientation discrimination cases would be pursued.

But not really. One year later, none of the material taken down from the web site has been put back. Even the office's official complaint form, newly revised as of February, does not mention sexual orientation. More importantly, not one sexual-orientation-discrimination case has been acted upon under Bloch's tenure.

In fact, Bloch has removed those cases from the normal review process. All other personnel-practice allegations go to a Complaints Examining Unit, and then, if found to have merit, to the Investigation and Prosecution Division. According to insiders, under Bloch, sexual-orientation cases must be sent directly to OSC attorney adviser James McVay, a political appointee of Bloch's. This is a highly unusual, perhaps unique policy, which has placed all sexual-orientation discrimination cases -- like Levine's -- beyond scrutiny, and into the hands of McVay, a former Marine drill sergeant and insurance attorney with no experience in employment law, whistleblower law, or federal-sector work.

Each agency head gets to make some "political" appointments, such as McVay, who are exempt from civil-service and competitive-hiring laws that cover the "career" employees who make up most of the staff. McVay is one of about 10 political hires Bloch made soon after taking office -- doubling the number of political appointees on the staff under Kaplan, who had left many of those positions unfilled. At least five of that group were hired at salaries above $100,000 -- a significant dent in the OSC's $13.6 million budget.

Most of these new hires, including McVay, have ties to Bloch -- many from his Kansas days. Bloch, after graduating from the University of Kansas in 1980 and UK's law school in '86, stayed in Lawrence to practice law for the next 15 years. In November 2001, he came to Washington to work for the Department of Justice's Task Force for Faith-based and Community Initiatives.

Almost all Bloch's hires, political or not, are Catholic, as he is -- and, like him, most are conservative activists. Deputy special counsel James Renne, who has worked for the conservative Media Research Center and Heritage Foundation, signed an open letter in 2000 from Concerned Catholic Attorneys warning, among other things, that an Al Gore victory could lead to a Supreme Court "willing to declare homosexual conduct a constitutional right" by finding that "traditional religious opposition to homosexual acts is ... a form of bigotry akin to racism." (Renne was reportedly Bloch's second choice for the job, which was first offered to a professor who founded an anti-gay-rights organization at Casper College, in Laramie, Wyo., in 1998.) Public-affairs officer Catherine Deeds -- formerly Bloch's Faith-based Initiative counterpart at Health and Human Services -- previously worked for the conservative Family Research Council.

Bloch's conservative-Catholic leanings are not subtle. He sent staff home early on Good Friday, and scheduled a senior-staff retreat on Passover. Thomas Forrest, who worked for McVay, "would walk around the office talking about how important going to church is, in effect proselytizing," says one source. Bloch has hired several attorneys out of Ave Maria Law School, an openly right-wing Catholic institution that has not yet gained full accreditation from the American Bar Association. He hired Alan Hicks, former headmaster at Bloch's son's Catholic boarding school, for consulting work, including giving a speech at the retreat.

Bloch's defenders, including the American Spectator and Catholic League president William Donohue, have dismissed all the accusations as anti-Catholic bigotry. The religious affiliations of these officials wouldn't be of interest, except for the allegations of cronyism -- and the fact that all sexual-discrimination complaints have been funneled to this cadre for handling.

When Bloch's gay-discrimination maneuvering became public last year, this core group became secretive and suspicious of the other employees, sources say. "[Bloch] seemed to put employees on one side of the table and he and his staff on the other," says one OSC worker. Bloch complained to press about "leakers" in his office, and ordered staff not to speak to outsiders without prior approval.

Then in December -- shortly after a watchdog group reported Bloch's hiring of his friends -- Bloch abruptly relocated 12 career employees to offices in Dallas and Detroit, and fired those who refused to go, which was most of them. The reassignments made little practical sense; for example, the head of the mediation team was sent away from DC, where most cases originate, to Detroit. Two of the 12 targeted were openly gay. Some were among the most senior staff. None was given any reason for being fired other than his or her refusal to move. A few were offered severance settlements requiring their silence about Bloch's actions at OSC; nobody accepted the terms.

These are exactly the kinds of retaliatory acts that the OSC exists to investigate. So the employees, with the help of several watchdog organizations, including the Human Rights Campaign, filed a complaint with the OSC this March. They asked Bloch to recuse himself and refer the complaint to the independent President's Council on Integrity and Efficiency (PCIE). Instead, Bloch sent it to another body, the Integrity Committee, which quickly ruled that it had no jurisdiction over the OSC and closed the case.

"Our contention is that Scott Bloch referred it to the Integrity Committee because it has no jurisdiction, so the IC would close it and it would be gone," says attorney Debra Katz. At Katz's request, the IC chairman sent the case to the White House Counsel's Office in mid April, which now must decide what, if anything, to do with it.

Two Senate committees will soon hold hearings into some of these allegations, but they will also be asking about yet another issue. Among its other duties, the OSC investigates alleged violations of the Hatch Act, the post-Watergate prohibitions on using federal offices for political purposes. During the 2004 presidential campaign, Bloch was accused of misusing his office by taking a partisan approach to Hatch Act investigations.

This hit the fan when Condoleezza Rice, then national-security adviser, made a series of high-profile speeches in battleground states, which struck many observers as de facto campaign speeches for George W. Bush. Congressman John Conyers (D-Michigan) brought a complaint to the OSC. Instead of turning the complaint over to the regular investigators, as is normal practice, Bloch gave it to Renne, his political deputy, who did nothing with it until after the election.

Compare that with the handling of allegations from last August, when Senator John Kerry appeared at the Kennedy Space Center, a National Air and Space Administration facility. (The appearance resulted in a photo of Kerry in a light-blue protective suit, which the Republican National Committee mocked.) Within two days of receiving allegations that Kerry's appearance may have violated the Hatch Act, Bloch assigned the case to the investigative staff, directing them to conduct an immediate on-site investigation.

This apparently partisan application of the OSC's resources was high profile enough to draw criticism from Conyers and others in Washington. But Bloch appears to be doing the same with rank-and-file federal employees. He has sought sanctions against eight people for alleged Hatch Act violations since taking office. Two, involving a Social Security Administration employee who e-mailed a pro-Kerry message and another who responded with a pro-Bush e-mail, were just rejected by an administrative judge. Of the other six, three are against Democrats, two are against Green Party members, and one is against an independent.

All these allegations are serious, but there is a more fundamental problem with the OSC under Scott Bloch: it is not doing its job.

Bloch entered office pledging to reduce the backlog of cases, which stood at about 1200 held-over cases each year. (About half of those are whistleblower disclosures, and half are complaints about reprisals or discrimination.) He claims to have done so, although his office has refused all requests for a specific accounting.

But by all appearances, he has not cut the backlog by more efficiently processing complaints, pursuing the ones with merit, and dismissing the others. He seems instead simply to have closed hundreds of cases without any inquiry at all.

It could hardly be otherwise; the office was understaffed when he arrived, with at least 10 open positions out of about 120. Since then, roughly 20 percent of the staff has been fired or quit. Only a few have been hired, outside of Bloch's political staff, and they are neither experienced nor qualified for the work.

"You've got empty office after empty office," one source says. The mediation office, a particularly successful program for resolving disputes, has gone unstaffed. The headquarters investigative team is roughly half what it was.

Nevertheless, despite the staffing shortage and case backlog, Bloch has found time to pursue, of all things, allegations that the Food and Drug Administration and the Centers for Disease Control and Prevention are conspiring to hide the true link between childhood vaccines and autism. "Notwithstanding a new Institute of Medicine study released yesterday that concludes there is no link," reads an OSC press release from May 2004, and even though "the OSC does not have jurisdiction," Bloch was gathering allegations from private citizens and referring them for congressional oversight.

Observers inside the office were baffled by the project. "We all looked at each other and said, 'What on earth is he doing that for?'" says one OSC employee.

Meanwhile, serious allegations are going uninvestigated. The Project on Government Oversight (POGO) has obtained a detailed complaint against Arturo Q. Duran, commissioner of the International Boundary and Water Commission in El Paso, Texas, and a Bush appointee. Duran allegedly hired friends without performing required background checks; spent government money on himself; and retaliated against several employees who sent a letter to a local publication about him. The OSC took one week to close the case, without any inquiry. In another case, attorney Bryan Schwartz represented several Smithsonian employees who alleged sexual harassment, theft of government supplies, illegal drug use, inappropriate use of government equipment and manpower, unfair hiring practices, possession of personal firearms, and retaliation for whistle-blowing; that case was also summarily closed. Other cases getting the brush-off involve federal employees blowing the whistle on security lapses and fraud.

Bloch and others at OSC have denied that the office is closing meritorious cases just to reduce the backlog. (Neither Bloch or Renne would speak with the Phoenix.) But they also acknowledge that anywhere from 600 to 1000 whistleblower cases have recently been closed without investigation, compared with fewer than 700 in the previous two years combined. And insiders report that the emphasis has been on closing cases, not on pursuing wrongdoers. "When you keep emphasizing closing cases, you start to wonder whether he wants those cases investigated," says one.

"In the 16 or so months he's been there, we haven't seen one whistleblower get helped," says Jeff Ruch of Public Employees for Environmental Responsibility.

Watchdog groups claim that those making complaints are not even receiving a phone call before their cases close. One group, the Government Accountability Project (GAP), put out a call last week for anyone who has filed a whistleblower's complaint with OSC to tell them what has happened.

With GAP compiling these stories, and Capitol Hill holding hearings, the White House might be forced to rein in Bloch, or even fire him. If not, he's still got almost four years left in his five-year term to keep Republican law-breakers safe from their complaining employees.
David S. Bernstein can be reached at [email protected].
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