Scott Bloch, who’s acted against gay employees, now faces Senate hearings
A day after a reporter raised the issue with Pres. George W. Bush’s press secretary, Scott McClellan, at a White House briefing, Sen. George Voinovich, an Ohio Republican, promised that he will hold a hearing regarding the reorganization undertaken by the Office of Special Counsel (OSC), and its director Scott Bloch, according to a report in the Washington Post.
"We were asked by Sen. Akaka [a Hawaii Democrat] to look into the matter," said Voinovich’s spokesman, Scott Milburn. "And since we have a really good working relationship with him, we said we would."
Voinovich is the chairman of the Senate subcommittee on government management and the federal workforce.
This is the latest development in a string of incidents that began when Bloch, as one of his first official duties last year, declared that federal employees were not protected from discrimination based on their sexual orientation. He ordered the category "sexual orientation" removed from the agency’s Web site, training materials and official documents.
When questioned by concerned members of Congress, Bloch said that a gay employee has protection against being fired or demoted for conduct outside of work unrelated to their job, such as attending a gay pride event, but not simply by virtue of their status as a gay or lesbian person.
The OSC is charged with investigating complaints of discrimination and retaliation against federal employees for behavior off the job or for revealing corruption or gross mismanagement—what is commonly called whistle-blowing.
Only after several Democratic congressmen, including gay Barney Frank of Massachusetts, publicly raised concern about Bloch’s stance did Bush state publicly that he expected all government agencies to enforce former Pres. Bill Clinton’s executive order banning discrimination based on sexual orientation in the federal workforce. Bloch, however, has yet to return "sexual orientation" to any of the OSC materials or to answer Frank’s question whether the OSC will enforce the Clinton order.
This week several former OSC employees terminated in what has been called a purge of disloyal staff, backed by the Human Rights Campaign (HRC), the nation’s largest gay advocacy group, and three government watchdog groups, filed a complaint with the President’s Council on Integrity and Efficiency (PCIE) against Bloch, who is a Bush appointee.
The complaint alleges that Bloch retaliated against OSC staffers who disagreed with him on his sexual orientation policy, dismissed 1,000 whistle-blower complaints without proper investigation and failed to apply the law correctly when dismissing a complaint of a gay whistle-blower in the Forest Service.
Earlier this year Bloch ordered the mandatory transfer of several OSC staff, including two openly gay employees, to field offices in Dallas and Detroit. The affected employees were given ten days to accept the move or be terminated. Bloch claimed the transfers would make OSC more efficient, even though most complaints to the agency originate in Washington, according to Jeff Ruch, executive director of Public Employees for Environmental Responsibility (PEER), one of the watchdog groups listed in the PCIE complaint. Ruch noted that there are too few complaints to justify the Detroit office, which is Bloch’s creation.
Meanwhile, in response to congressional inquiries, Bloch pleads he is to understaffed to respond, pointing to backlogged cases.
"Scott Bloch heading the OSC is like discovering the fire chief is also the town arsonist," Ruch said.
Ruch also alleged that in an effort to show progress in decreasing the agency’s backlogged cases, Bloch has ordered OSC employees to dismiss any whistle-blower case that seemed incomplete or ambiguous without first contacting the employee.
"Not only does this go against previous OSC policy, but it’s contrary to good common sense as well," Ruch said.
Bloch now proudly boasts in a press releases he has all but eliminated more than 1,000 whistleblower cases waiting at the agency when he was appointed.
Elaine Kaplan, Bloch’s predecessor at the OSC, a Clinton appointee, and now a lawyer with the National Treasury Employees Union, said this is a departure from what was done during her tenure.
"It’s not always easy for an employee to articulate a discrimination complaint or know what kind of documents should be provided to make a case,” she said. “It was rare not to call a complainant to ask questions about their case."
Kaplan also recently publicized one of the most troubling incidents so far under Bloch’s tenure, a case involving a gay Forest Service employee, Michael Levine, working at Inyo National Forest in California. According to Levine’s complaint, he was suspended for two weeks by his supervisor after raising concerns with the Forest Service’s inspector general about a fellow employee who appeared to be running a sporting goods business from his office. Levine believes he was suspended because by reporting the offending employee, he was implicating his superior who apparently tolerated the man’s side business.
Levine claimed charges from a subordinate about child pornography on his computer—charges later proved false—were raised to retaliate against him. A written, signed statement from a witness also indicated that the personnel officer in charge of Levine’s branch said at one point about the case, "Don’t you just hate these fucking faggots" when referring to Levine and his case.
After a year without action, the OSC suddenly dismissed Levine’s complaint.
"In the absence of any evidence of any discrimination for off-duty conduct, we found, therefore, no basis for further action concerning this allegation," concluded a letter issued by Thomas Forrest, an attorney for the OSC.
Kaplan said this is odd, given how cases should be handled at the OSC.
"On its face, the complaint merited investigation, especially with a written statement from a witness,” she said. “But the OSC didn’t even begin a preliminary investigation of the facts, such as interviewing witnesses or obtaining documents."
What’s also troubling to Kaplan is the OSC’s return to the conduct argument with regard to sexual orientation. She called Bloch’s distinction not only out of synch with the current administration’s stated policy, but also legally indefensible.
"Common sense tells us that if you dislike someone because they are gay you have already assumed things about conduct,” Kaplan argued. “Their private sexual lives, their friends, where they hang out."
She cited an assistant attorney general under Pres. Ronald Reagan who concluded, based on federal law and case precedent, that "it is improper to deny employment or to terminate anyone on the basis of either sexual preference or of conduct that does not adversely affect job performance."
"The reason this is important is because it demonstrates that this is not a Democrat versus Republican issue and it is not about Pres. Clinton and his executive order,” said Kaplan, who is lesbian. “It provides fuel to the right wing whenever the prohibition on sexual orientation discrimination is characterized as some invention of Clinton and his gay special counsel."
The PCIE complaint also alleges that Bloch has non-competitively hired several OSC employees sympathetic to his political beliefs, and that these employees were never confronted with involuntary transfer orders. Alan Hicks, the former headmaster of the Catholic boarding school Bloch’s son attended, was recently retained as a special OSC consultant. The OSC has refused requests from PEER to produce the contract between Hicks and the agency. PEER’s Freedom of Information request for this contract was met with a letter from the OSC—which also administers such requests—stating that due to staff shortages the contract could not be released until July.
Bloch was once a Lincoln Fellow of the California-based Claremont Institute, a think tank that prides itself on fighting the "gay rights" movement, and has posted to its Web site defenses of him. His deputy special counsel, James Renne, a Bloch hire, is also on record as opposing gay rights.
But pressure is finally mounting for Bloch to explain himself and the actions of his agency. The hearings promised by Voinovich are directly related to the charges that Bloch has been stuffing his agency with political cronies and shipping out anyone not in line with his personal views.
As well, more trouble for the embattled OSC director seems to be on its way. The agency’s annual report to Congress is overdue. PEER has posted to its Web site minutes from the OSC’s February 9 meeting in which Bloch discussed hiring summer interns to fill a staff shortage and assist in evaluating whistle-blower cases.
The OSC did not return repeated calls seeking comment.