Senator Charles Grassley (R-Iowa) has written President Obama to inquire about the impacts of a recent court ruling on the civil service. The ruling in Kaplan v. Conyers and Northover removed from MSPB review the claims of employees deemed to hold “sensitive” positions even if the position does not require a security clearance. Grassley cited concerns expressed by the Office of Special Counsel (OSC), the independent agency tasked with oversight of federal personnel practices and whistleblowing.
OSC reasoned in its amicus [friend of the court] brief that the arguments for deeming these positions sensitive “could be made about most federal employees, by virtue of their access to federal facilities and their ability to observe their surroundings.”15 OSC noted: “At a minimum, such logic could be extended to virtually any employee of DOD, DHS, and DOE. The combined workforces for these three departments alone account for nearly 50% of the approximately two million federal employees who are covered by the CSRA [Civil Service Reform Act of 1978].
Grassley cited the case of TSA Air Marshal Robert MacLean as a basis for concern for the impacts on whistleblowing. “Without clear rules preventing a suitability determination being made in retaliation for a protected disclosure, federal employees will have a clear disincentive against blowing the whistle,” wrote Grassley.
Grassley proposed that the President issue an executive order “clarifying that neither DOD nor any other agency has received the authority delegated from you to make final, unreviewable decisions regarding suitability determinations and clarifying that such determinations should be made under the provisions of 5 U.S.C. § 7513, which permits MSPB review.” In addition, he asked the President to establish rules that prohibit labeling positions non-critical sensitive after they have blown the whistle.
Failing to provide those protections would have a devastating chilling effect, on whistleblowers, the senator concluded.