Office of Special Counsel apologizes to Southern Ute Indian Tribe

Editor’s note: The following is a letter submitted to Chairman Clement J. Frost from the U.S. Office of Special Counsel.

“Dear Chairman Frost:

February 27, 2017

Thank you for meeting with my staff and me on February 15, 2017. We appreciated hearing your thoughts and concerns with the U.S. Office of Special Counsel’s (OSC) findings in a whistleblower retaliation complaint (File No. MA-13-0754). The meeting was constructive, and I believe we all have a better understanding of how this investigation proceeded and how it impacted the Ute Indian Tribe (Tribe).

As we discussed, OSC only has jurisdiction to investigate federal agencies (like the Bureau of Indian Affairs (BIA)), and we thus lack jurisdiction over the Tribe. And we did not interview Tribe members or otherwise request information from the Tribe as part of our whistle blower retaliation investigation of BIA. On that point, I want to be clear that we did not investigate the Tribe about any potential violation of law; nor did we find that the Tribe violated any law (including the Whistleblower Protection Act and the National Environmental Policy Act of 1969). Instead, we focused on whether BIA retaliated against the Complainant because he blew the whistle on an issue he reassonably believed may be a violation of law, rule, or regulation.

After OSC released the Prohibited Personnel Practice (PPP) report, the Tribe contacted us, because it believed the PPP report and accompanying press release unfairly implied that OSC found that the Tribe engaged in illegal or improper conduct. During our meeting, I noted that this was the first PPP case I was aware of at OSC that involved a non-governmental entity. OSC therefore did not have a standard practice for notifying the third party-here, the Tribe-about our investigation and its results. Based on the Tribe’s legitimate concerns, we took steps to clarify the Tribe’s limited role in this case. For example, we redacted the Tribe’s name from the PPP report and removed its name from the accompanying press release. Further, as stated, we did not investigate the Tribe and thus could not, and did not, find that the Tribe engaged in any unlawful conduct. On behalf of OSC, I apologize for any implication otherwise, and appreciate your raising these concerns with me.

We welcomed the opportunity to meet with you and hear your concerns. Please let me know if you have any questions about this letter.”


Carolyn N. Lerner


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