Five Myths About Scott Bloch

The May 6 FBI raids on the office and home of Office of Special Counsel (OSC) Scott Bloch were the latest twist in the long-running war between the conservative Bloch and his many enemies. Bloch stands accused of obstructing justice in a case against him filed by career federal bureaucrats who claim he retaliated against them because he believed they were undermining his policies. Though most of the evidence for Bloch’s obstruction is either unknown publicly or non-existent, Bloch did have the hard drives of his computer and perhaps those of staff members wiped clean in 2006 by Geeks on Call. Bloch said that his computer was infected by a tenacious virus and that he kept copies of all deleted files.

Bloch enraged Democrats, the media, and liberal Republicans when shortly after his appointment by President Bush in 2003, he removed “sexual orientation” from the classes of specially protected civil rights categories in OSC literature. Since then, the MSM, pressure groups, and a few liberal Republicans in the Bush Administration and on Capitol Hill have made an example of Bloch, trying to get him fired or forced to resign. Some have even employed anti-Catholic and anti-Christian arguments, decrying the regular worship habits of Bloch, grandson of well-known abstract expressionist painter Albert Bloch, and many of his staff. Yet both civil rights law and OSC’s success in its primary missions are on Bloch’s side.

Myth 1: Bloch overturned three decades of policy forbidding discrimination on the basis of sexual orientation in the federal workforce.

Since the 1970s, executive branch policy has ruled out of bounds sexual orientation discrimination among civilian federal workers, and President Bush reaffirmed that policy. All Bloch did was to remove “sexual orientation” from the list of specially protected categories — race, sex, religion, etc. — in federal civil rights law since Congress has never placed it there. In fact, not until the Clinton Administration had OSC listed sexual orientation as a special civil rights category on a footing with race and ethnicity. Bloch simply reversed that unauthorized expansion of civil rights law while emphasizing that federal law continued to ensure the federal government could not “discriminate based on personal conduct which is not adverse to the on-the-job performance of an employee, applicant, or others.”

Even though Bloch repeatedly said that sexual activity, among other kinds of activity such as attending a “gay pride” event, fell under the rubric of the personal conduct rule, his opponents seized upon his statement that the law protected conduct, not the simple fact of being homosexual. So any homosexual whose personal conduct is in no way ever affected by his homosexuality is technically not covered by the personal conduct rule, Bloch said — and which is in fact how the law stands, as even the courts have found. And as Bloch noted in a May 24, 2005 hearing before a Senate subcommittee, the executive order forbidding sexual orientation discrimination says “no right or remedy is conferred” by that order. No one can point to any legal authority granting the power to OSC to put sexual orientation on a par with race, religion, and other such civil rights categories, and so Bloch hasn’t.

Myth 2: The practical effect of Bloch’s policies has been to allow discrimination on the basis of sexual orientation among federal workers.

Regardless of the merits of discrimination against homosexuals, Bloch hasn’t advocated it and, by invoking the personal conduct rule, hasn’t allowed it. In fact, OSC rarely investigates such complaints or more standard civil rights complaints such as those based on race, etc. The OSC website says, “[P]rocedures for investigating such complaints have already been established in federal agencies and the Equal Employment Opportunity Commission (EEOC). Therefore, to avoid duplicating those investigative processes, the OSC follows a general policy of deferring complaints involving discrimination to those agencies’ procedures.”

The OSC protects whistleblowers, servicemen whose rights are violated in the private sector (such as reservists’ being fired while on deployment), and also investigates political activity by federal employees while at work (“Hatch Act violations”).

Myth 3: Bloch forced federal employees who crossed him to move to Detroit.

OSC did create a field office in Detroit under Bloch, but no one was forced to relocate there. A few ex-employees claim they quit to avoid being sent to flyover country.

Myth 4: OSC has floundered under Bloch.

The backlog of complaints and the time it takes to resolve them has dropped dramatically under Bloch. Bloch’s enemies have been reduced to arguing that Bloch’s agency should be more careful and is resolving cases too hastily to do a good job, citing the inevitable dissatisfied complainants as proof.

Myth 5: Bloch launched baseless allegations into Bush Administration officials in order to make government investigations into his conduct look like payback.

If Bloch launched random investigations just to protect himself, he sure got lucky. Though he cleared Condoleezza Rice of using government assets for political purposes and Karl Rove quit the White House before Bloch finished his investigation, General Services Administration (GSA) head Lurita Doan was forced to resign April 29 after OSC uncovered her attempts to use her agency to, as she put it, “help our candidates.”

In addition, released OSC documents show that Bloch often rejected his agency’s recommendations to investigate Bush Administration officials.