A federal employee who reports wrongdoing does so at some risk and, for most whistle-blowers, with some trepidation. Federal law is supposed to protect civil servants from reprisal for reporting wrongdoing, but most employees find little comfort with anti-retaliation laws, and for good reason. The result is less disclosure of wrongdoing and a more costly and inefficient government.
Over time, court decisions and Merit Systems Protection Board opinions have diluted what it means to be a whistle-blower and when whistle-blowing is protected. At a minimum, the laws are complex and very fact-specific. The recent case of U.S. Park Police Chief Theresa Chambers is an example. Chambers fought for many years and had several court decisions go against her before she prevailed and returned to the position from which she had been fired. She was found ultimately to be a protected whistle-blower. For others who risk reprisal because of their disclosures, the final outcome is not so positive.
A federal employee is a whistle-blower when he or she discloses a violation of law, rule or regulation; gross mismanagement; gross financial irregularity; abuse of authority; or a specific threat to health or safety. Disagreements about the best way to get the job done or about how to develop, apply or interpret policy are usually not protected activities unless the disclosure also fits within the above categories.
A further complication is the exclusion from protection of employees who report wrongdoing only to the wrongdoer and of those employees whose disclosure of wrongdoing is merely done in connection with performing their job duties.
Relying on a theory that protection is designed to deter wrongdoing, judicial precedent does not protect a whistle-blower who merely tells his or her boss that the boss is violating some law. The idea is that this type of disclosure does not deter the wrongdoer because that person already knows he or she is breaking the rules. The disclosure, the thinking goes, must be to someone who can correct the wrongdoing, such as higher-level management or the inspector general.
The problem is that this is where much of the reprisal occurs. The whistle-blower who brings an illegality or impropriety to the boss’s attention risks much and will probably be viewed with suspicion as not being a team player or as someone who cannot be trusted. Many employees who raise an issue to the boss do not want to escalate the matter for the very reason that they want to be considered loyal.
The best example of whistle-blowing that is not protected for the employee who is just doing his or her job is the IG auditor who uncovers an illegality or serious mismanagement and then writes an audit report to the IG and to the agency disclosing what the auditor found during the audit. Sometimes this type of disclosure can be viewed as an unwelcome rocking of the boat and reprisal will occur, not only to retaliate for the disclosure, but as a signal to others to not issue reports with unwelcome findings.
Sometimes whether a disclosure is part of someone’s job or beyond the particulars of a position description is more difficult to determine. After all, isn’t it the job of every federal employee to report wrongdoing? These distinctions seem meaningless, but they are very much a part of the adjudication process concerning whether someone is a protected whistle-blower.
For several years, Congress has considered legislation to correct the illogical exclusion from protection of those whistle-blowers who disclose only to the wrongdoer and those who are just doing their jobs. The proposed legislation makes it clear that any disclosure that fits in one of the categories is protected. This legislation, if passed, would expand the universe of protected whistle-blowers. Arguably, this would have the salutary effect of encouraging the reporting of wrongdoing and a resulting increase in government efficiency.
Bill Bransford is managing partner of Shaw Bransford & Roth PC.
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6 Comments
I resported wrong doing by a Director of Security at the Joint Staff based on Abuse of Authority and Breach of Trust as blantant Time Card Abuse was occuring at the facility by the Director and a tusted subordinate.
I also in addition had a EEO Complaint and the Informal EO was done at the Joint Staff and substantiated the irregularities reported and in Addition I had a Formal EO Complaint and again substatiated the iregularities reported.
In addition the two EO Investigations subtantiated the iregularities of violation of employee rights at the work place. Continuous Harrassment, Violations of the Family Leave act as I have a Cancer Daughter and the director call me into her office and stated that I could not take my daughter to her chemoteraphy treatments and that I could use no personal sick or annual leave to take her to the treatments and place me on Leve Restriction.
In addition The Director retaliated by going to her supervisor and saying that I was disruptive and was causing loss of productivity. As retaliation I was immediately moved and place on detail to another facility.
The actions of the Director of Security at The Joint Staff was a Bold Lie… I have 44 years of service and know how to conduct myself. No One in the Chain of command chaeck as to the validity of her false accusations as I was immediately removed from my work station and transfer some were else on detail all this was nothing more than a retaliation for my reporting her on time card abuse to the DoD IG.
I am still on detail. Until probably we see the Administrative jUDGE ON MY FORMAL eo cOMPLAINT for resolution.
One thing that concerns me is the lack of Courage by the supervisor and the supervisory chain of command to address the issue at hand. As the time card abuse openly continues and the EO violations are openly carried out as the facility is being run as a cotton fam in the deep south in the 1950 eara. Open descrimination occurs and no one will stand up and take appropriate corrective action.
If you are going to report misconduct just be prepared to be retaliated and do not expect any assistant from your leaders becuase of their lack of courrage to do what is right for the nation as the Larceny of Government resources will continue
I stood up and will take my case to court and will do accountability before I retire from Federal Service as it is my duty as a Federal Employee to report misconduct and hold them accountable for their actions.
VR
Robert.
The Director
As a Federal Employee is our responsibility to stand up to wrong doing by corupt Federal Employees that drain our Federal Resources for personal gain and with out the expectations of accountability.
I reported the larceny of Government Resources to the DoD IG and to the senior supervisory chain of command and they did nothing my complaints lay dormant for quite some time. Therefore I filed an EO Complaint as I was being harrased by the perpetratos…
I filed a EO Complaint for Harrasment and violations of Law and Regulation on the FMLA and for the Blocking of Qualified Veterans at the Joint Staff match to the position by OPM in additionfor having unqualified Leadership that openly descriminate against minorities working at the agency as this leadership was conducting open larceny of our goverment resources using the Time and Attendance System for their own personal gain as time taken off was not recorded and at the end of each year they had endles hours of use or loose.
The Leadership come in at 10:00 AM – 11:00 AM as they please and depart early with out any time of arrival and departure being recorded in their T&A each period…
After to Investigations a Formal and Informal investigation no action was taken to correct the problem. All issues substantiated and again the Lack of Courage to correct the issue everything continue like nothing has ever happen. I do belive that their is no courage to hold them the perpetrators accountable becuase of their long tenure as employees in the Joint Staff.
Resported it by Certified Letter to the Director and Vice Director and no action taken the two employees remain in their jobs and position. No accountability for their EO Activity and the Time Card Abuse.
Now the individual who I filed the complaint for wrong doing and supported by two Reports of Investigation that subtantiated my allegations of wrong doing go to their supervisor and complain that I was disruptive and causing loss of productivity. A complete false statement and unsubstantiated statement. I have 44 years of service and never have conducted my self in that manner. No thing to substantiate her allegations in her quest for retaliation.
Supervisor chain of command fails to verify the false alegations but they quickly take action by having me immediately removed from my duty station and transfer me to another directory for duty immediately becuase the person I filed my complaints with DoD IG and with EEOC had made that statement.
I was placed on detail immediately as an act of retaliation for my DoD Complaint and my EO Complaint in complete disregard that I was in a EEO protected activity.
I have been on detail for almost a year based on the false alegations of the perpetrators and for the lack of courage to deal with the issues by the chain of command leadership at the Joint Staff. No one investigated the false alegations but action was taken immediately.
What should have happend the two perpetrators based on their acts substantiated by the two investigations should habe been removed and placed on detail at another location until the conclusion of the Administrative Judge and closure of the issues at hand.
I am a federal employee and belive that our government resources need to be protected by us the Federal employee that sees the Larceny of Government Resources by individuals becuase of their long tenure in government feel that they can do what they want with out any questioning or expectations of accountability on their daily dishonest activities.
We as Federal Employees are the first line of defense in the protection of our government resources and the taxpayer contributions towards our defese programs.
It is the responsability on anyone in leadership once made aware of this type of wrong doing to take corrective action immediately and hold the perpetrators accountable.
Lookig the other way is wrong. Doing something about it is the right thing to do.
If you bring an issue for corrective action just be prepared to be retaliated. I was in one of the finest organizations in the Armed Forces the Joint Staff at the Pentagon just becuase some one look the other way and did not investigated the false allegations and then take corrective action.
If I had to do it again yes you can bet on that. It is our Government resources that we need to protect from being stolen before our eyes as everyone looks the other way.
If you are in a leadership position stand up and take corrective action like I did. You can be proud of protecting our country and our resources tag to defend our country..
Robert
The reporting of larceny of government resources require a careful evaluation of each one of us based on the following factors.
a. The individuals conducting the Larceny of Government resources are very well entrench with in our government system and they have the expectation of no action against them becuae they evaluate that the average Government Employee will not want to jeperdise their employment.
b. There is another breed of government employees that are willing to take the task of reporting the perpetrators and filing the appropriate complaints for the prosecustion of the perpetrators and are willing to take the action all the way through the end of the process through the Court System.
This is a personal decision as there is no protection for the individual reporting the misconduct of individuals that are in violation of a rule and regulation.
Case in point there is no authority for anyone in our military to implement community work programs to were our United States Citizen Civilians are forced to perform endles hours of community works progrmans overseas by their employer U.S. Army Europe under a Kanga Roo system of a military court. This civilians are sentenced by a Field Grade Military Officer to 10 – 120 hours of Community Services to be performed by the U.S. Citizen Civilian Employee and or his family members superviced by a U.S. Service Enlisted Member.
I reported it as a violation of our rights under the law and was brushed under the rug!!!!!.
There is no law that gives anyone in the military to conduct a court and sentence U.S. Citizen Civilians to perform Community Work Programs.
I reported and of course there was no protection for the reporting as the individual reporting this was my personal choice and I could take the heat. I was on the right side of the law in reporting misconduct.
If you are to report misconduct you need to evaluate your current situation and your personal values. I belive that the perpetrators have no expectancy of any disciplinary action and they have the expectancy that you need your job to support yourself and that you will do nothing.
I belive that the only way to stop this is to report it and to have the leadership do what is right and remove the perpetrators, investigate the issue at hand and take appropriate corrective action.
There has to be values and accountability
Robert
The proposed legislation, WPEA, is replete with dangerous loopholes. It would empower the MSPB and federal agencies even further, while destroying any potential hope for current and future whistleblowers. WPEA is not a good thing and has to be fixed before it is signed into law.
The unfortunate fact is that the Office of Special Counsel and the Merit Systems Protection Board do not protect federal employees from reprisal when the crimes are committed at a high enough level. In those cases “protection” is nothing but a sham.
If a federal employee reported me with wrongful information to my Commander, how can I report her for doing something that I did not do.