Despite laws, federal whistleblowers still face problems
February 17, 202011:14 am
9 min read
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Federal whistleblower protections against retaliation and being outed after making confidential allegations have been enshrined in law — several times. Yet problems persist, at least in the eyes of the whistleblower ecosystem. For the latest thinking in the whistleblower community, the Federal Drive with Tom Temin spoke to the co-founder and general counsel of the National Whistleblower Center, David Colapinto.
Tom Temin: Well, didn’t we just get through a round of statutory federal whistleblower protection enhancement?
David Colapinto: Yes, in 2012 Congress enacted what was said to be landmark reforms for whistleblowers in the federal government, the Whistleblower Protection Enhancement Act. But everyone knew when that was passed, and it took a long time to get passed on a bipartisan basis, that it would fall short off the major reform that is needed in whistleblower protection for federal employees.
Tom Temin: And what is that major protection needed?
David Colapinto: Allowing court access to go and seek a jury trial and get a court to determine whether or not you’ve been wrongfully dismissed or suffered retaliation in a major way and have your case heard by a jury like federal employees can already do if they allege discrimination on basis of gender or race religion, etc.
Tom Temin: So would you have them seek court first or still go to Office of Special Counsel or to the IGs or what?
David Colapinto: All of the proposals that have been made since 1994 require exhaustion of administrative remedies first and that is similar to what exists for the private sector under a score of other whistleblower laws. If you work for a publicly traded company, if you work for a nuclear power plant that is privately held, etc. There are many laws now on the books that allow people to go to federal court after exhausting administrative remedies. And that’s critical now for federal employees.
Tom Temin: So these statutes exists to have access to courts for everybody but whistleblowers, in
David Colapinto: What everybody but federal employee whistleblowers. Whistleblowers in the private sector, to be clear, can go. Federal contractors can go eventually to court and seek a jury trial on their claims of retaliation for whistleblowing. It’s only federal government whistleblowers that are denied this right. And it really is the major shortcoming of the federal whistleblower statute. Everybody has known about it for at least 25 years, and Congress has attempted to fix it several times but couldn’t get it in the 2012 bill, and it couldn’t pass it in prior years.
Tom Temin: So this persistence of this gap then seems to transcend whichever party in power.
David Colapinto: That’s correct. Whistleblower legislation has typically been passed in a bipartisan basis. It’s one of the few things that both parties have agreed they need to do. Personally, I don’t think the two parties do that out of the goodness of their heart. It’s because protecting whistleblowers is very popular with the public. And when it comes to protecting whistleblowers in the federal government, however, they will only go so far and not go the extra mile, which everybody knows is needed to have a strong anti-retaliation protection, in the event confidentiality is exposed or someone is public and blows the whistle. Someone goes to Congress and blows the whistle and faces retaliation.
Tom Temin: Is that the reason you get when you talk to lawmakers that might be involved here, they say their constituents don’t like the idea?
David Colapinto: No, it’s not. The constituents don’t like the idea, the federal agency management doesn’t like the idea on there.
Tom Temin: Since when did Congress listen to them?
David Colapinto: Well, they listen to it on this issue. We’ve heard varying arguments like it’s gonna encourage frivolous whistleblowers. It’s going to be a burden on management. It’s going to burden the courts. None of which is true, and it isn’t true under the other laws for the private sector.
Tom Temin: You also have a law firm that specializes in whistleblower cases?
Tom Temin: Have you seen any recent manifestations of issues that are caused by the lack of access to the courts?
David Colapinto: Yes. Currently, there are no members of the Merit System Protection Board. So that’s created a backlog of more than 2500 cases. A large chunk of that 2500 case backlog are whistleblower cases, which really is a breach of faith with federal employees for Congress to tell us in 2012 when they passed the other law that the administrative remedies will work. That’s enough. That’s sufficient for you. And now there is no way that this system is working.
Tom Temin: Which is really ironic this point because there are three nominees finally from the Trump administration, and they even cleared as a group from the Senate Homeland Security and Governmental Affairs Committee. And now there’s some sort of a secret unknown hold on one or more of them and the whole thing’s bollixed up So you’ve got a current situation too,
David Colapinto: Right, and if Congress had passed the court access provision in 2012 as had been promised by every major candidate for president in 2008. We would not be facing this problem. Employees would have another option. They would be able to go to court. There are always gonna be these political stalemates that result in blocking board members, appointees, etc. But even on a good day, the Merit Systems Protection Board and the Office of Special Counsel, you know, God bless them, but they don’t have enough resources to handle all the cases as they are. And in many cases, particularly when you’re dealing with retaliation cases, those forums are not sufficient to handle the complex cases, particularly the MSPB.
Tom Temin: Let me ask you about another domain of whistleblower protection, and that is those in national security. And then there’s kind of two subsets of people in national security. One, the people that handle classified material, and then the people that push brooms and open windows and deliver stenography or something in those agencies, which do not handle classified material. Are they still a little bit outside of the protections that everyone else has?
David Colapinto: Yes, and that they have been treated differently historically. For the first time in 2014, employees in the intelligence community actually got some sort of remedy to protect them from retaliation if they blew the whistle. But fraud and misconduct, waste, abuse doesn’t stop at the door of the intelligence community agencies. The same problems that confront the rest of the federal government with mismanagement and waste also exists. They are treated differently. They don’t even get an MSPB remedy. They have an internal inspector general process, and they can do a number of internal appeals up to the agency head of the agency that would be proposing to fire the whistleblower. So how fair is that? There is no judicial review beyond that point. So it is a system that has many shortcomings. That inadequate system has only been in effect for about 4 or 5 years. It is very fragile. The Ukraine whistleblower situation is a test off that process, because that process was designed to discourage the future Edward Snowden to go leaking because there was no remedy at that time.
Tom Temin: There is, frankly, what is whistleblower in one person’s mind is traitorous action on someone else’s. Not talking about the Ukraine one, we’ll leave that out of the discussion because that’s wrapped up in a lot of other issues. But in the Edward Snowden case, some saw him as a whistleblower savior, some saw him as just a traitor giving away secrets he had no right to give away.
David Colapinto: That’s correct. However, your option in those days was you had a choice. You could keep your mouth shut or you could try to do something by going to the media. Reality Winner is another case where she was a contractor employee as well in the intelligence community, leaked one document and is spending five years in prison. There were no rights for her at the time that occurred. Congress has subsequently enacted a law to extend protections to employees of intelligence community contractor employees, which is a very large segment of the workforce.
Tom Temin: Just given all of this ferment and given the fact that there has been some reform in recent years, do you sense any change in the cultural attitude in the federal government by management towards whistleblowers?
David Colapinto: There has been a cultural change, and that is another major component where Congress could do a lot of work to encourage more cultural change. And it isn’t so much the passage of these laws which helped to establish a policy of the government that every agency, no matter where you work, should have whistleblower protections and should have a whistleblower disclosure mechanism, either through the inspector generals or the Office of Special Counsel. But on what has really changed the culture and what has resonated, believe it or not, has been the retelling of the history of the whistleblowers of 1777. That, and I don’t know if your listeners were familiar with that, The short version is that during the American Revolution, 10 Sailors and Marines basically blew the whistle on the Commodore of the Continental Navy and brought their concerns to Congress. Now people would say, well, what happened to those people? Were they hung? Were they shot? We were fighting a war. Part of what they were blowing the whistle on, not only was it the corruption of the Commodore, but also the orders of the Commodore to mistreat British prisoners of war. That was a major concern brought forward by the Sailors and Marines that served in the Navy. They went to the Continental Congress, and Congress actually passed the first whistleblower law. It’s not binding today because it was the Continental Congress, but what it said was a very short statute, short and sweet, and it basically said that any person in the service of the United States or inhabitants thereof should bring evidence of fraud and misconduct to the Congress at the earliest possible time.
Tom Temin: And that’s where it stood until the Constitution.
David Colapinto: That’s correct. It really gives you insight as to what was the thinking of the founders of the United States. And when people began to realize that’s what the founders of the United States were thinking about, whistleblowing, which was very revolutionary in its thinking, is that it has resonated in the intelligence communities, in the military, in the government agencies. And every year. it is embodied in a National Whistleblower Day on July 30th which was the date in 1778 when Congress passed that statue in the Continental Congress.