Case Seen as Precedent for Transfers of SES Members

A whistleblower retaliation complaint pending before the Office of Special Counsel could set a precedent for determining the powers of federal agencies to involuntarily transfer SES members, according to an analysis by the Institute for Constitutional Advocacy and Protection at the Georgetown University Law Center.

The case involves an SES member at the Interior Department who was one of about 50 SES members–about a fifth of the senior executive cadre there–who was ordered to be reassigned several months ago. His duties had included preparing coastal Alaska Native communities for the effects of climate change–what a letter to the OSC terms “a key role in the DOI’s response to climate change.”

“Following his repeated statements voicing concern for the endangered communities” in the early months of the Trump administration, it said, he was transferred into an auditing position that he says does not match his qualifications and that has no significant responsibilities. He then filed a retaliation complaint at the OSC.

The group in urging the OSC to intervene stated that while civil service law allows agencies to reassign SES members, “the provisions governing reassignment do not afford agency heads carte blanche to shift senior executives for arbitrary reasons … And, even where an employee is qualified, the motivation for the reassignment cannot be retaliation for a protected whistleblower disclosure.”

“To date, beyond vague claims of a need to reorganize, the DOI has provided no public explanation of why these specific SES employees–many of whom have been reported to have unimpeachable records and who, collectively, helped lead numerous DOI bureaus and offices–were selected for reassignment,” it said.