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OSC: Commerce Dep’t Inspector General Gagged Employees From Blowing Whistle

11:17 am in Uncategorized by MSPB Watch

In a Kafkaesque turn of events, the Office of Special Counsel is alleging that top officials in the Commerce Department Office of Inspector General threatened subordinate employees with negative performance reviews if they didn’t sign non-disclosure agreements that barred them from exercising their rights to blow the whistle and petition Congress.

The Special Counsel petitioned the Merit Systems Protection Board to stay enforcement of the non-disclosure agreements, which she argued are an “any other significant change in duties, responsibilities, or working conditions” in retaliation for the employees’ potential for blowing the whistle – a/k/a their “perceived whistleblower” status.

The Special Counsel said in a press release Nov. 30 that “[b]ecause the act of disclosing the gag provision may itself be prohibited by the harsh terms of the agreements, OSC is protecting the employees’ identities.”

MSPB Member Mark A. Robbins, in a single-member decision, Nov. 29 granted the stay request for 45 days, adding that

For purposes of this nonprecedential single-member decision in this ex parte proceeding, I accept OSC’s assertion that the Former Employees’ inability to report perceived wrongdoing to the appropriate authorities as a result of signing the nondisclosure agreement may constitute a “significant change in duties, responsibilities, or working conditions” under 5 U.S.C. § 2302(a)(2)(A)(xi).“

Other examples of “any other significant change in duties, responsibilities, or working conditions” may be found here.

From OSC’s press shop:

OSC Granted Stay in Challenge to Commerce Department Gag Clauses

FOR IMMEDIATE RELEASE
CONTACT: Ann O’Hanlon, (202) 254-3631; aohanlon@osc.gov

WASHINGTON, D.C./November 30, 2012 –

The Merit Systems Protection Board (MSPB) yesterday granted a stay requested by the Office of Special Counsel (OSC) prohibiting enforcement of unlawful gag clauses in settlement agreements between the Commerce Department’s Office of Inspector General (OIG) and four former employees of the OIG, each of whom was coerced into signing an agreement under threat of harm to their career prospects and future employment. The order is available here.

The agreements prohibit employees from voluntarily communicating with OSC or Congress. The employees were told that manufactured negative performance appraisals would be shared with prospective employers if the employees did not sign the nondisclosure agreements.

The MSPB’s action means that the personnel actions taken or threatened to be taken by OIG senior management must cease for 45 days, giving OSC further time to investigate the allegations. These personnel actions include the threatened communication with prospective employers and the imposition of significant changes in the employees’ working conditions.

The order concludes that an agreement restricting employees’ ability to report wrongdoing is a change in working conditions and is therefore a personnel action under the Whistleblower Protection Act.

In addition, the order applies the Lloyd-LaFollette Act, a 1912 law codifying the rights of federal employees to blow the whistle to Congress.

Because the act of disclosing the gag provision may itself be prohibited by the harsh terms of the agreements, OSC is protecting the employees’ identities.

“OSC is committed to ensuring that agencies do not interfere with whistleblowing to Congress,” said Special Counsel Carolyn Lerner. “We are pleased that the MSPB has granted the stay so that OSC can further investigate this matter.”

Dissenters’ Digest for July 8-21

10:00 am in Uncategorized by MSPB Watch

Dissenters’ Digest takes a look back at news stories covering whistleblowers, watchdogs, and government accountability. Look for it every other Saturday evening at www.dissentersdigest.com.

Chilling Effect: Acting ATF Director B. Todd Jones spoke in an internal video to ATF employees where he appeared to admonish his subordinates not to blow the whistle outside the chain of command, lest they face “consequences.” He did not mention they have the right to do so under numerous laws, including the Whistleblower Protection Act of 1989 and the Lloyd-La Follette Law of 1912, which allows civil servants to communicate with Congress without prior restraint. Sen. Chuck Grassley and Rep. Darrell Issa are investigating.

If Nixon had Keylogging Software: The New York Times reported last week that the Food and Drug Administration’s suspected surveillance of whistleblowers is bigger than previously believed, and includes tracking of sources outside the agency.

The FDA reportedly has developed an “enemies list” to push back against negative coverage of its oft-criticized review of drugs and medical devices. The list includes not only scientists employed within the FDA, but also congressmen, journalists, and outside medical researchers. These efforts have resulted in the collection of some 80,000 pages of documents that include private emails to Congress, draft whistleblower retaliation complaints, and communications with journalists and attorneys.

Senator Chuck Grassley took the lead in expressing outrage against what he previously called FDA’s “Gestapo” tactics.

Grassley’s review includes a demand for the legal memo authorizing the spying campaign, which began in mid-2010. Expect the focus to shift to FDA’s past and current chief counsels.

What’s In Your Wallet?: The Consumer Finance Protection Bureau announced its first enforcement action: a $210 million settlement with Capital One for deceptive marketing practices.

The allegations include misleading consumers about the benefits of Capital One products, which were not always depicted as optional. Some consumers were knowingly sold products they could not utilize, and others succumbed to “high-pressure tactics” to buy add-ons like payment protection and credit monitoring. In some instances, Capital One enrolled consumers in products without their consent, or led them to believe there was no additional cost.

Capital One will fully refund its customers at a cost of $140 million and pay another $25 million to the CFPB and another $35 million to the Office of the Comptroller of the Currency, totaling $210 million.

In other news, in-house corporate attorneys are concerned about CFPB enforcement actions.

Full disclosure: I have a Capital One card in my wallet.

Below the Fold:

–An environmental watchdog takes a look at Governor Romney’s anti-civil service track record in Massachusetts.

–24 percent of Wall Street executives believe they need to break the law to succeed; 16 percent would commit insider trading if they could get away with it, according to a survey done by the whistleblower law firm Labaton Sucharow.

–The Justice Department and the FBI are reviewing thousands of criminal cases to determine whether any defendants were wrongly convicted because of flawed forensic evidence. The whistleblower who first brought this to light almost 20 years ago will be monitoring progress. Legislation has already been introduced.

–A Navy whistleblower is now in charge of investigating whistleblower cases in the Defense Department.

–Penn State officials knew.

–A federal district court judge blew the whistle, in a way, about coercive plea bargain tactics that demand waiver of appeal rights in lieu of going to prison on unreasonably heavier charges.

–Some news outlets let political operatives approve quotes before they appear in print. Why not also let them write the articles?

FDA isn’t the only agency snooping on its employees.

Treasury officials, unauthorized gifts, prostitutes, and golf.

–The American Federation of Government Employees reached an agreement with the TSA to provide TSA officers personnel appeal rights at the Merit Systems Protection Board.

–The Equal Employment Opportunity Commission approved an 18-year-long race discrimination class action lawsuit brought by U.S. Marshals against the U.S. Marshal Service.

–The White House issued a memo to strengthen the rights of service members who return home and seek to reintegrate into the working force.

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