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DC Media Relays OPM Director’s Crocodile Tears for Civil Servants On Last Day in Office

2:16 pm in Uncategorized by MSPB Watch

Various publications covering the federal government relayed concerns by outgoing OPM director John Berry over the “denigrat[ion]” of public service while ignoring his role in the Obama Administration’s unprecedented assault on workplace protections for hundreds of thousands of civil servants, via Berry v. Conyers & Northover. (The “Berry” is for John Berry, on behalf of the Office of Personnel Management).

Whistle blowers

Whistle blowers

That case, which is currently on appeal, has generated the following comments:

Tom Devine, Government Accountability Project:

If the ruling stands, “the merit system will be history.”

Lynne Bernabei, Bernabei & Wachtel, PLLC:

[T]he Obama administration’s support of this position is an integral part of the administration’s increasing secrecy and support of a national security system that is unaccountable.

Judge Dyk, dissenting opinion in Berry v. Conyers & Northover:

The majority completely fails to come to grips with the [Civil Service Reform Act of 1978]. . . the majority’s holding effectively nullifies the statute.

Angela Canterbury, Project on Government Oversight:

Congress must legislate to overturn the wrongheaded over-reach of the Federal Circuit, . . . and to prevent agencies from arbitrarily labeling away the rights of civil servants.

None of the major publications that cover civil service issues mentioned that decision. Instead, we’re treated to this:

Federal Times, April 11, 2013:

After taking over OPM, Berry quickly became known for his optimistic and passionate speeches defending federal employees. As the political winds soured on civil servants in recent years, Berry continued speaking up for feds. At a March labor-management meeting, an angry-sounding Berry warned that the government risks becoming unable to recruit and retain a qualified workforce if it keeps freezing employees’ pay, cutting their benefits, and publicly denigrating them.

Government Executive, April 11, 2013:

Berry has been a vocal champion for federal workers during the last four years, and has a good reputation among lawmakers on Capitol Hill. His exit comes just as federal employees at a number of agencies are starting to feel the effects of sequestration, including furloughs.

The biggest offender seems to be the Washington Post, which served up the following:

Though Berry faced major headaches from computer systems and retiree issues, his greatest frustration was something more fundamental.

“I don’t know if we succeeded in beating back those small-hearted people who somehow feel it is appropriate to denigrate public service,” he said during an interview.

“I don’t know what sort of smallness of mind or heart motivates them, but they need to understand that public service matters. And these jobs are just too important to not be able to recruit the best and the brightest to do them. . . . Do you want Homer Simpson researching cancer for your children’s diseases?”

It was President Obama, Berry’s boss, who, with congressional approval, upset federal workers by freezing their basic pay rates, a freeze now in its third year.

Obama has proposed a 1 percent pay raise for next year, paired with a requirement that employees increase contributions to their pensions.

The freeze happened on Berry’s watch, but it was largely out of his hands.

Meanwhile, Federal News Radio covered its flank a bit by getting positive comments from stakeholders. None of these publications, however, mentioned the decision that could gut civil service protections for hundreds of thousands of employees.

It’s difficult to square Berry’s stated concerns for public servants in the media when he’s trying to strip them of their rights in court. It’s even more difficult to see what’s in it for the free press to give him a pass.
Read the rest of this entry →

Closing the Loop on NGO Accountability

6:35 am in Uncategorized by MSPB Watch

First, some excerpts from Sibel Edmonds’ highly-recommended Classified Woman:

Chapter 9

Good, affordable attorneys willing to take on the FBI and Justice Department are a rarity in Washington, DC. As far as government watchdog and whistleblower organizations go, none of them call you back unless you happen to be famous. (It took me years to understand the game: high profile cases are cash cows for many of these groups, who use the funds they raise to pay the salaries of their staffs, none of whom are whistleblowers.

Chapter 14

Meanwhile, I called and e-mailed any organization I could find that dealt with whistleblowers and First Amendment cases, those who claimed to be fighting excessive secrecy and executive branch abuses of power. I needed their support and expertise, yet in spite of the fact that my case embodied all these civil liberties, not a single organization lifted a finger to contact me, call me back, or offer any assistance. (While it was a hard blow and a tough pill to swallow at the time, this experience helped me a great deal a few years later, when I formed my own coalition, network and organization to deal with and help government whistleblowers.)

Chapter 15

Soon I started to receive offers of support and solidarity from various whistleblower, government watchdog and public interest nonprofit organizations, something I found bitterly amusing. Where were these groups when I most needed them? Strangely enough, I was helped, in a way, by seeing how they operate. In time, this understanding would become a catalyst for forming my own organization for whistleblowers.

Chapter 16

At the end of my speech, noting their enthusiastic applause, I came to another realization. What I was doing here was preaching to the choir. These people were already informed; all were active in the fight. The question I was struggling to find an answer to was, how do I reach other who are not informed? How do we get through to those who readily have accepted the despotism being marketed to them as security?

During the Sam Adams Award conference, a dark-haired petite woman in her thirties had walked over and introduced herself…. Ann wanted to know if I were planning to appeal the case, because if so, the ACLU would be interested in helping. This made me snap at her, rather rudely. I told her all about my past experience begging for their help-how they had made me wait for months for an answer, only to turn me down. None of their attorneys were interested. Then I pointed my finger and said, “I’m disgusted with all these organizations who preach one thing and then do another-who only approach people and help them if those people are surrounded by publicity.”

Later that day she even tried again, to which I nastily replied, “These whistleblowers all need legal help, and they won’t welcome an organization that has not extended help to them.”

My efforts to expose and reform the government watchdog NGOs as exploitative of whistleblowers have run aground. Not because I failed to prove the allegations, but worse: nobody seems to care. Nobody in the community, at least. This is either because they know or they benefited (or both). There’s nothing to be gained by continuing, and more to lose, at this point.

For the sake of posterity, I’ve collected select posts relating to these contentions at http://mspbwatch.net/category/ngo-accountability/. If you’d like access to any walled-off posts, let me know via my About page.

And take heart – accountability of these groups will continue, albeit in a different form, at the Fact Check page.

Cross-posted at mspbwatch.net.

Veal Pen Watch: Good government groups all but eject whistleblower from coalition for asking too many questions

6:29 pm in Uncategorized by MSPB Watch

(photo: chmop / flickr)

The groups that comprise the steering committee of the good government group coalition, the Make It Safe Campaign, are:

  • –ACLU
  • –Government Accountability Project
  • –Project on Government Oversight
  • –Union of Concerned Scientists
  • –American Federation of Government Employees

Here are the details:

Evelynn Brown, a federal whistleblower and CEO of her own whistleblower support group, has been lobbying the MISC SC to become more open, transparent, responsive, and accountable. She asked for basic things like sharing the email list serv, getting rid of a 24 hour comment review period, having a whistleblower on the steering committee, having minutes of meetings made available, etc.

For whatever reason, today the committee decided they’d had enough. They said her comments had become increasingly antagonistic, uncivil, inaccurate. They won’t specify what was inaccurate about it, I asked. Her comments were civil but firm.

I think the person behind this is Tom Devine, GAP’s legal director. There is an authoritarian streak about him. I’ve already asked for his resignation and started to give detailed reasons why. He’s burning up his goodwill quickly. Censoring and exiling whistleblowers is a big no-no in our small community.

Here’s the banishment and what triggered it, below. Reprinted with permission. Read the rest of this entry →

Coalition of open government groups publishes censorship guidelines for whistleblowers’ speech

9:42 am in Uncategorized by MSPB Watch

The Make It Safe Campaign, founded by the Government Accountability Project, has recently published long-requested guidelines dealing with intra-group communications. Here they are:

MISC Steering Committee Guidelines

MISC Steering Committee Guidelines, created 3.25.09

History of Coalition: Comprised of many groups whose interests span federal, corporate, environmental, consumer safety, etc. whistleblower protection

The coalition is broken into two levels of involvement:

  1. Steering committee. Frequent meetings and updates.
  2. Broader coalition of approximately 50 groups that engage in sign-on letters, receive announcements through our MISC listserve, etc. Quarterly meetings and updates.

Establish a steering committee within MISC for consensus and consistent coalition messages. Steering committee meetings will be held on an as-needed basis.

The steering committee must establish;

  1. what is our legislative priority within the working group
  2. when we represent the coalition and when we don’t: Must clarify in any context, from Hill meetings to media, that unless there was a previous consensus by the steering committee, each individual is speaking in their own capacity or on behalf of their individual organization, but does not represent the coalition

There must be “rules of the road” for how we present ourselves as a coalition v. an organization.

We should try to reach consensus with interested groups in the coalition on specific issues when possible, but again, cannot speak on behalf of entire coalition unless there is a consensus.

The steering committee needs to at least know about other bills or efforts that effect whistleblowers; is there a consensus, does steering committee have a role? Is it conducive, hurtful, or neutral to whistleblower protection?

When Hill meetings are made on behalf of MISC, there must be at least 3 representatives from the steering committee in attendance and one of them is responsible for reporting out to group.

Hill communication should be funneled through the pioneer contact within the steering committee, unless approached by the staff directly.

The MISC listserv is open to all members. Messages must be whistleblower-related and factual. Attacks against individual members or member groups are not tolerated. All listserv messages must undergo a 24-hour steering committee review period to confirm it meets the listserv criteria. Messages from a member of the steering committee must also undergo the 24-hour review period. [Emphasis added.]

These guidelines, supposedly created back in 2009, are very troubling. (There’s no archived copy in the Wayback machine, as far as I can tell, which raises a question about the factual accuracy of the 2009 date…)

What happens if a member submits a comment that, say, exposes the founder’s public statements that contradict each other? Is that an attack? Is it factually accurate? The founder wouldn’t think so, but then again he’d be a judge in his own cause. What’s the appeal process, if any?

What if a member wants to lodge a grievance that the Steering Committee is not acting in the best interests of the coalition? Is that an attack? Who gets to decide what’s factual or “appropriate”?

Also, more basically, why must a comment be approved? Why the prior restraint? It would be unconstitutional if a government agency did it; isn’t it hypocritical to impose that requirement here? What’s the concern, if not to control the flow and content of information?

There are less paranoid ways to minimize unjustified disruption (not all disruption is bad!). Give warnings, give some due process, and then ban anyone who continues to engage in trolling behavior.

Finally, the power to ban comments means that the censors must respond to grievances about their own conduct, in an honest and forthright manner. Otherwise, one can imagine the membership revoking consent and going elsewhere. The principles behind the First Amendment still apply in any bureaucratic context… the desire to be heard, to have one’s grievances redressed… the desire not to be treated like a subject… Ignore these at your peril, MISC.

Dissenters’ Digest for May 20-June 9

4:00 pm in Uncategorized by MSPB Watch

(photo: caribbeanfreephoto/flickr)

Dissenters’ Digest takes a look back at the week’s stories covering whistleblowers, watchdogs, and government accountability. Look for it every other Saturday evening at www.mspbwatch.net/digest .

Beyond Reproach: Efforts to pass the Whistleblower Protection Enhancement Act came under scrutiny this week after it was disclosed by the lead lobbyists that the bill will not contain any jury trial provisions, a long-sought reform. The admission came after the Make It Safe Campaign Steering Committee objected to an open letter to Congress which highlighted flaws in the current bill. However, grassroots efforts, led by this author, pointed out that the Steering Committee has failed to engage the whistleblower community and the public in its lobbying activities, as well as practice transparency and accountability, the values it publicly champions. It remains to be seen whether the Steering Committee will take heed of suggested reforms, the rejection of which may well cost it considerable influence and credibility with the lowest common denominator that truly matters: federal whistleblowers.

Below the Fold: Read the rest of this entry →

Veal Pen Watch: Why the MISC Steering Committee is the wrong group to represent whistleblowers in Congress

6:40 pm in Uncategorized by MSPB Watch

The bottom line is that groups like POGO, ACLU, AFGE, and UCS have other business in Congress and cannot risk exposing/cajoling/strong-arming politicians on whistleblower issues. This is why I was asked to help kick-start a grassroots lobbying campaign, to give cover to GAP and MISC to get better protections. Except, when it really counted, GAP caved to the other groups’ reticence to do anything but settle for weak provisions.

The whistleblower community needs somebody in Congress who isn’t afraid to name names. There is no substitute for jury trials. If any politician is against them, they should be required to say so, and why, in the light of day, and then answer to his or her constituents.

That GAP, POGO, et al are throwing in the towel should serve as a wake up call to federal whistleblowers everywhere.

POGO will have to choose between whistleblowers and Congress

7:26 pm in Uncategorized by MSPB Watch

POGO’s Angela Canterbury, Director of Public Policy, sits on the Make It Safe Campaign’s (MISC) Steering Committee. Fellow whistleblower Evelynn Brown and I wrote a grassroots whistleblower letter about the Whistleblower Protection Enhancement Act. Here it is. We asked Tom Devine, Legal Director of the Government Accountability Project, to send that letter to the MISC general membership for signatures (GAP is the gate-keeper of the MISC list serv; we don’t know who’s on it, despite asking for the contact list for over 6 months).

Per GAP’s usual protocol, they send such requests to the Steering Committee for 24-hour approval. POGO’s Angela Canterbury wanted to attach a note from the Steering Committee along with our letter. I placed certain conditions on it, and now I’m waiting for POGO and/or GAP to respond.

Here’s the email chain:

Angela Canterbury, Director of Public Policy, Project on Government Oversight:

This letter seems much more reasonable, but Tom, please ask them to make the edit below.I think there ought to be a Steering Committee message to this effect that accompanies the letter.Something like:

The Steering Committee supports and has fought hard for the reforms highlighted in the letter. We have been told repeatedly by Senate and House members that these are not passable in this political climate. It is indeed not a favorable climate for federal whistleblowers. In fact, we are surprised to have any access to court at all given the House leadership’s opposition to the idea. But though we have been repeatedly told that the bill goes as far as it can go, it does not mean we shouldn’t keep asking for what’s right. However, that is with a caveat: there will come a time when we will need the support of all of us to get some reforms through to help as many whistleblowers as we can. There will be a moment when the perfect will become the enemy of the good. We hope that at that time, all federal whistleblowers will stand in solidarity with one another to get a law that serves as many as possible.

If you agree, Tom or Shanna, will you please let David and Evy know that we’d like to send this note along with the letter?

Me:

I will consent to Angela’s note to go along with ours only if she names the politicians who do not support jury trials and who insist on summary judgment. That message will then be made public. If not, let me know if our message will go through anyway, and if not, why. That message may be made public as well, at my discretion.

Will POGO cover for House members who oppose basic due process rights? Will the Steering Committee censor our letter from MISC members? Remember, they are self-proclaimed transparency and accountability advocates.

This is what political malpractice looks like

2:22 pm in Uncategorized by MSPB Watch

An obsequious message from the Make It Safe Campaign Steering Committee, carrying water for unnamed House Republicans:

The Steering Committee supports and has fought hard for the reforms highlighted in the letter. We have been told repeatedly by Senate and House members that these are not passable in this political climate. It is indeed not a favorable climate for federal whistleblowers. In fact, we are surprised to have any access to court at all given the House leadership’s opposition to the idea. But though we have been repeatedly told that the bill goes as far as it can go, it does not mean we shouldn’t keep asking for what’s right. However, that is with a caveat: there will come a time when we will need the support of all of us to get some reforms through to help as many whistleblowers as we can. There will be a moment when the perfect will become the enemy of the good. We hope that at that time, all federal whistleblowers will stand in solidarity with one another to get a law that serves as many as possible.

Yes, let’s keep “asking” for Magna Carta rights for another 30+ years. Maybe this time things will be different.

 

If the Whistleblower Protection Enhancement Act fails, what will have caused it?

9:00 am in Uncategorized by MSPB Watch

If WPEA fails to pass, or does pass and causes harm to whistleblowers, will anyone have predicted it?

S. 743/H.R. 3289 is the latest attempt to pass the Whistleblower Protection Enhancement Act. Here are the past attempts. Apparently the past four attempts were stymied at the hands of holdouts in the Senate. The last attempt, S. 372 in December 2010, was blamed on a secret hold cast by Republican Senators. But that narrative conveniently ignores the fact that the Senate and Administration had the chance to pass it in February 2009 as part of the ARRA stimulus package debate, only to be killed by Senator Susan Collins. And it ignores why the bill was pushed all the way to the end of the Congressional term, empowering hostage-takers who placed the secret hold literally in the last hour of the session. At some level, that falls on Harry Reid, who has control over the Senate calendar, and who didn’t schedule debate until December 2010.

It also doesn’t help that the whistleblower community was divided back then, and continues to be, over what’s in the bill. The current sticking point is the summary judgment provision. We’ll see in a couple of years whether it’s a big deal when pro se whistleblowers at the MSPB get handed one defeat after another for being outmatched by professional agency counsel and biased MSPB judges. It’s not difficult to predict the outcome.

But more important is the process by which the professional advocates decide what to lobby for and how to lobby for it. The umbrella organization responsible for WPEA is the Make It Safe Campaign, created by Tom Devine of the Government Accountability Project. MISC is an ad hoc coalition of non-profits, whistleblowers, labor unions, and organizations. There is a steering committee composed of representatives from the Government Accountability Project, the Project on Government Oversight, Union of Concerned Scientists, American Federation of Government Employees, and the American Civil Liberties Union.  This is the largest and most prominent organization that speaks for whistleblowers on Capitol Hill, but no whistleblower is on the steering committee. Absent explicit request, there are no minutes kept and made available to the general membership, and members must go through the steering committee to communicate with each other, submitting their notices for 24-hour approval. There is no general membership contact list available, despite some of us asking for over 6 months. The National Whistleblowers Center used to be on the steering committee but resigned in protest after being excluded from legislative planning. NWC has opposed S. 372 and may oppose S. 743 due to the summary judgment provision.

If WPEA fails to pass, or if it passes and harms whistleblowers, it cannot be said that everything was tried but was met with irrational opposition in Congress. The fact is that not everything has been tried. The community has not been empowered or enfranchised for long-term input and decision-making. The public hasn’t been reached in an effective way. The advocates try to insert legislation in low-key ways, rather than empower a movement. The norms of transparency and reasoned debate are proving to be illusory.

If WPEA fails to pass or fails as law, now you will know why.

Update: Some whistleblowers issued an open letter to Congress yesterday, which was requested and steered by Tom Devine, only to have him request that we not publish it after the MISC Steering Committee got cold feet. Apparently Congress expects applause and cannot tolerate being criticized for passing a bill that fails to grant real due process (i.e. trial by a jury of one’s peers, which goes back to the Magna Carta of 1215 A.D.). The details will be omitted for now but the events of the past couple of days exemplify Sibel Edmonds’ post that the professional advocates sell whistleblowers down the river behind closed doors when it really counts.

 

Dissenters’ Digest for May 13-19

3:00 pm in Uncategorized by MSPB Watch

Whistle Suits (image: Truthout.org/flickr)

Dissenters’ Digest takes a look back at the week’s stories covering whistleblowers, watchdogs, and government accountability. Look for it every Saturday evening at www.mspbwatch.net/digest.

Federal Judge Strikes Down NDAA’s Indefinite Detention Provision: A federal judge in Brooklyn, New York struck down the indefinite detention provision of the National Defense Authorization Act, saying it constitutes an unconstitutional infringement on the First Amendment. The suit was brought by several journalists who feared their activities might fall under the reach of the law — substantially supporting al-Qaeda, the Taliban, or associated forces – without even knowing it, and facing indefinite detention for many years. The judge, Katherine Forrest, repeatedly offered government lawyers the opportunity to rebut the reporters’ fears, but they declined to do so.

Below the Fold:

–A Malaysian tribunal found George W. Bush, Dick Cheney, Donald Rumsfel, Alberto Gonzales, John Yoo, Jay Bybee, David Addington and William J. Haynes guilty of war crimes.

–The Washington Post editorial board calls on the Federal Aviation Administration to take whistleblowers’ complaints seriously.

–The ACLU is weighing in on behalf of Peter Van Buren, the State Department whistleblower who wrote a book and blog critical of his employer’s exploits in Iraq.

–A Homeland Security House subcommittee looks at corruption inside DHS.

–Employees at a nuclear waste site in Washington state are coming forward, saying too many shortcuts are being taken in the construction of a facility to dispose the waste.

–An FBI crime lab whistleblower’s 20 year campaign to expose and correct violations of defendants’ due process rights is beginning to bear fruit.

–House Oversight Chairman Darrell Issa is alleging the Federal Maritime Commission may be “an agency in crisis.”

–Union protectionism in 1994 may haunt whistleblowers and the Office of Special Counsel in 2012.

–Several whistleblowers and advocacy groups will host an annual conference in Washington, D.C., May 21-23.

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