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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