Federal whistleblowers face ‘best and worst’ of times, expert says

It’s been nearly two years since federal employees got a boost in their whistleblower protections thanks to enactment of The Whistleblower Protection Enhancement Act of 2012.

But some on Capitol Hill are wondering if the law has accomplished what it set out to do and whether more work needs to be done to protect federal employees’ rights.

The House Subcommittee on Federal Workforce, U.S. Postal Service and the Census heard testimony Tuesday from a panel of agency officials, whistleblowers and a whistleblower advocate on how the administration is treating federal employees who point out wrongdoing.

Tom Devine, legal director of the Government Accountability Project, a whistleblower support group, told the subcommittee the two years since passage of the WPEA have been both the best and the worst of times for whistleblowers.

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Court case has significant impact on whistleblowers

In 2013, a 2-1 decision by the U.S. Court of Appeals for the Federal Circuit found in the case of Kaplan v. Conyers that the Merit Systems Protection Board did not have the authority to review dismissals or demotions of civil servants with “noncritical sensitive” jobs work. The decision ultimately applies to all federal agencies.

“Kaplan v. Conyers has created the most significant threat to the merit system that has kept the civil service professional and nonpartisan since 1883,” Devine said. “Where the dust has settled, the government now has uncontrolled power to designate virtually any job in the government as ‘sensitive.’ The Federal Circuit applied the principle to those who stock sunglasses at commissaries and proposed regulations by the Office of Personnel Management with designation for all jobs that require access to either classified or unclassified information. In other words, all jobs that required literacy are ‘sensitive’ now.”

Such designated employees would no longer be able to defend themselves through a due-process hearing, and consistent procedures for justice within agencies would no longer exist for those employees.

“The bottom line is that this is a structure to replace the merit system with functional blank check for a national security spoils system,” Devine said. “That is simply unacceptable.”

Devine pointed to the case of Robert MacLean, a former federal air marshal with the Transportation Security Administration. In November, it will be the first case under WPEA to be heard by the U.S. Supreme Court.

“At stake are the two most basic, significant premises for this law,” Devine said. “First that only Congress can restrict public whistleblowing disclosures, not the agencies who allegedly engaged in fraud, waste, abuse, illegality or activities threatening the public. Otherwise, wrongdoers would have the right to get whistleblowers exposing their own conduct.”

Another premise is that when Congress restricts public whistleblowing disclosures, it must do so “with specificity,” he said. If not, employees will be unsure of the legal rights they have as potential whistleblowers.

“The uncertainty creates an inherent chilling effect,” he said. “An adverse ruling would cancel everything that we accomplished in the Whistleblower Protection Enhancement Act.”

Another concern raised by Devine is the practice of making whistleblowing a crime rather than just an employment offense. Since passage of the WPEA, GAP has seen a growing shift from traditional employment actions to criminal investigations and prosecuted referrals.

“Increasingly, whistleblowers are given the choice of resigning or risking jail time. … The chilling effect of facing jail time is much more severe than facing an adverse action,” Devine said. “This problem could easily be fixed by codifying legislative history through the 1994 amendments of the WPEA.”

How WPEA has helped whistleblowers

WPEA has helped the Office of Special Counsel in protecting whistleblowers, OSC Special Counsel Carolyn N. Lerner told the subcommittee in her written testimony.

“Government functions best and can address problems most effectively when employees can come forward without fear of retaliation,” she said. “Creating this environment requires education, educating employees about their rights and managers about their responsibilities.”

If a federal worker thinks she has experienced a reprisal due to blowing whistle at her office, she may file a complaint with the OSC. The office then investigates the claim to verify that the protected whistleblowing action took place, the employee experienced a reprisal due to that action, whether the person doing the reprisal had knowledge of the whistleblowing and whether the whistleblowing was a contributing factor in the reprisal.

“If these four elements are met, the agency must show — by the high bar of clear and convincing evidence — that it would have taken the same action absent the whistleblower’s disclosure,” Lerner said. “To assess this, we look at the strength of the agency’s evidence in support of the personnel action, the existence and strength of the agency’s motive to retaliate, and the treatment of similar agency employees who are not whistleblowers, as well as other factors.”

OSC then attempts to informally resolve the matter with the agency. If a resolution is not reached, OSC can present the case to the MSPB for administrative review.

In October 2012, President Barack Obama issued a policy directive aimed at ensuring intelligence and national security employees were able to legally report agency wrongdoing and be protected from retaliation for doing so.

“The WPEA’s mandates include: a significant expansion of OSC’s jurisdiction; a requirement to conduct investigations in hundreds of whistleblower cases that previously would have been dismissed; a direction from Congress to initiate more formal litigation and disciplinary actions against agency managers; and training requirements for all other government agencies,” Lerner said, in her written testimony. “The WPEA also provides OSC with the authority to file amicus briefs in federal court cases that involve whistleblower protection issues.”

In addition, the WPEA created a 13th prohibited personnel practice to prevent agencies from instituting non-disclosure agreements that do not allow whistleblowing.

“The WPEA also clarified that a disclosure is not excluded from protection simply because it was made during the employee’s normal course of job duties,” Lerner said.

A need for new legislative actions?

Rep. Eleanor Holmes Norton (D-D.C.) asked those testifying whether there was a legislative solution to the concerns raised at the hearing.

“I wish that it weren’t necessary to have legislation, because having worked four times to pass the Whistleblower Protection Act, we know how hard that is and how long it takes and how much work it is, but there isn’t any other option left,” Devine said. “It shouldn’t be controversial legislation. It’s just to restore the status quo for a merit system in federal employment that existed from 1883 to 2013 without any incident due to the lack of ‘sensitive’ job designations. This should not be a controversial bill.”

He added that some agencies, such as the Department of State, are already starting to designate all of their employees “sensitive” or “noncritical/sensitive.”

“The government is being transformed from the rule of law to a national security spoils system,” Devine said.

Subcommittee Chairman Blake Farenthold (R-Texas) said the challenge would be to craft appropriate legislation to address the “sensitivity creep.”

“Clearly, the case of someone stocking sunglasses is not going to have access to sensitive information,” he said. “But I think the majority of us would agree that Mr. Snowden clearly had access to and exposed sensitive information. So, finding the right place to draw the line is challenging.”

Farenthold ended the hearing by requesting those giving testimony to submit suggestions to the committee on how best to draft the language of legislation in order to protect the legitimate whistleblowers while preserving national security interests.

“A piece of it may be where that information is released,” he said. “Clearly, flying overseas and releasing NSA information as Mr. Snowden did is not appropriate. But, coming to a congressional committee or a special counsel or the Office of the Inspector General with your agency might be an appropriate place to do that.”

RELATED LINKS:

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Appeals court removes key civil service protection

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