Authority of the Special Counsel, Merit Systems Protection
     Board, Over Anonymous Allegations of Wrongdoing

Anonymous complaints do not trigger the statutory scheme by which the Office of the
 Special Counsel (OSC), Merit Systems Protection Board, investigates allegations of
 wrongdoing within an agency; however, such complaints may be forwarded to the
 head o f the affected agency by the OSC in its discretion, to be dealt w ith by the
 agency.

                                                                                 July 1, 1981

   M EM ORANDUM OPIN IO N FO R T H E SPECIA L COUNSEL,
          M ER IT SYSTEMS PR O TEC TIO N BOARD

  This responds to your inquiry whether the Office of the Special
Counsel (OSC), Merit Systems Protection Board, has the statutory
authority to forward anonymous allegations of wrongdoing to the
heads of the affected agencies,1 pursuant to 5 U.S.C. § 1206(b)(2).2 For

   ‘This question arose because of our earlier opinion that OSC may only forward complaints
received from federal employees. Memorandum Opinion for the General Counsel, Nuclear Regulatory
Commission, from Larry L. Simms, Deputy Assistant Attorney General, Office of Legal Counsel,
March 13, 1981. [ N o t e : The March 13, 1981, Memorandum Opinion appears in this volume at p .77
supra Ed.]
   2 Section 1206(bXl) and (2) of Title 5, United States Code, states:
              (1) In any case involving—
              (A) any disclosure of information by an employee or applicant for employment
           which the employee or applicant reasonably believes evidences—
              (i) a violation of any law, rule, or regulation; or
              (ii) mismanagement, a gross waste of funds, an abuse o f authonty, o r a substantial
           and specific danger to public health or safety,
        if the disclosure ts not specifically prohibited by law and if the information is not
        specifically required by Executive order to be kept secret in the interest of national
        defense or the conduct of foreign affairs, or
              (B) a disclosure by an employee or applicant for employment to the Special
           Counsel o f the Merit Systems Protection Board, or to the Inspector General o f an
           agency or another employee designated by the head of the agency to receive such
           disclosures o f information which the employee or applicant reasonably believes
           evidences—
              (1) a violation of any law, rule or regulation; or
              (ii) mismanagement, a gross waste of funds, an abuse of authority, or a substantial
           and specific danger to public health or safety;
           the identity of the employee or applicant may not be disclosed without the consent
           o f the employee or applicant during any investigation under subsection (a) of this
           section or under paragraph (3) of this subsection, unless the Special Counsel deter­
           mines that the disclosure of the identity of the employee or applicant is necessary in
           order to carry out the functions of the Special Counsel.
              (2) W henever the Special Counsel receives information o f the type described in
           paragraph (1) of this subsection, the Special Counsel shall promptly transmit such
           information to the appropriate agency head.

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reasons stated hereafter, w e do not believe that the statute was intended
to cover such material and we therefore conclude that the material may
not be forw arded as (b)(2) material. Such material may be forwarded to
afTected agencies, however, without the provision of (b)(2) being trig­
gered.
   Forw arding information pursuant to (b)(2) triggers an elaborate statu­
tory scheme. OSC may require an agency to conduct an investigation
and submit a detailed written report within 60 days. 5 U.S.C.
§ 1206(b)(3)(A), (4), 5 C.F.R. § 1252.2 (1980). This report must be
submitted to Congress, the President and the Special Counsel, 5 U.S.C.
§ 1206(b)(5)(A), and possibly the Office of Management and Budget.
Even if OSC does not require an investigation, the head of the agency
must make a written report within 60 days regarding action taken. Id.,
§ 1206(b)(7), 5 C.F.R. § 1252.3 (1980). Failure to file reports may be
reported to Congress and the President. 5 U.S.C. § 1206(b)(5)(A). This
scheme was designed to encourage federal workers to “blow the whis­
tle” if they suspect the existence of wrongdoing in their agency. See
124 Cong. Rec. 27,548, 27,569-72, 34,100, 25,727-28 (1978). It was
meant both to protect them from reprisals by setting up stringent
safeguards to protect their identity, see 5 U.S.C. § 1206(b)(8), 5 C.F.R.
§ 1250.3(c) and App. I (1980), and to assure them that their complaints
would be looked into seriously by requiring mandatory reports from
the agencies. Permitting individuals who are unwilling to give their
names, even with these statutory protections, to trigger these provisions
would not only consume the finite resources of OSC and the agencies
but would also turn the law into w hat its sponsors explicitly said it was
not—“ an open invitation to any disgruntled Federal employee . . . to
make false allegations o f wrongdoings by a Federal agency.” 124 Cong.
Rec. 27,572 (1978) (remarks of Sen. Dole).
   W e believe that the statute requires the identification o f the com­
plainant in order to effect several purposes. First, identification ensures
that the complainant is “ an employee or applicant for employment” as
required by the statute. 5 U.S.C. § 1206(b)(1)(A), (B). See also 5 U.S.C.
§ 1206(b)(3)(B). Second, it allows the Special Counsel to solicit addi­
tional information, if necessary, from the complainant when determin­
ing w hether there is a “substantial likelihood” that the information
discloses a violation o f the law and thus to eliminate the drain of
investigating fraudulent or frivolous claims. Third, it permits the Spe­
cial Counsel to comply with the mandate of the statute that he “sh a ir
inform the complainant of the agency’s report on its investigation or
action. 5 U.S.C. § 1206(b)(5)(A), (7) (emphasis added).
   This is not to say that OSC must ignore anonymous complaints.
Nothing in the statute forbids OSC from forwarding such complaints to
an agency—the statute only precludes them being sent as official (b)(2)
                                    216
material.3 Therefore, while anonymous information should not be for­
warded pursuant to 5 U.S.C. § 1206(b)(2), and reports on it should not
be required pursuant to 5 U.S.C. § 1206(b)(3) and (7), the information
may be forwarded at OSC’s discretion—and dealt with at the agency’s
discretion—in order to identify possible problems.

                                                            L a r r y L . S im m s
                                                  Deputy Assistant Attorney General
                                                      Office o f Legal Counsel




   3 In addition, OSC is empowered to investigate possible prohibited personnel practices, even in the
absence of an allegation, 5 U.S.C. § 1206(a)(3), and several other classes of improper conduct, 5 U S.C.
§ 1206(e), 5 C F.R § 1251 1(b), (c), regardless of the source.