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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.
BY DAVID S. BERNSTEIN


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 Representative Henry Waxman’s report at reform.democrats.house.gov/Documents/20050111164847-37108.pdf.) 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. Senator 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, Senator 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.

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Issue Date: May 6 - 12, 2005
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