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Dissenters’ Digest for September 2012

1:50 pm in Uncategorized by MSPB Watch

Falling Whistles

(Photo: JNW Photography/flickr)

Dissenters’ Digest takes a look at last month’s top stories covering whistleblowers, watchdogs, and government accountability.

National Security Creep. The month began with a setback for federal employees with a ruling by the Federal Circuit that allows agencies to designate employees’ positions as “non-critical sensitive” and thereby strip away any civil service protections.

Politicizing the Workplace. A Washington watchdog shed light on potential Hatch Act violations by FAA officials who instructed employees that voting for the GOP–and the attendant budget cuts that that would supposedly involve–might cost them their jobs.

$104 Million. UBS whistleblower Bradley Birkenfeld received a $104 million IRS award, the largest ever, for his help in bringing many tax cheats to justice. Despite his actions, Birkenfeld spent 40 months in jail. However that sentence may have been based on false information.

House Passes WPEA. The House of Representatives passed the Whistleblower Protection Enhancement Act by unanimous consent. The Senate is due to consider the measure after the November elections. The measure passed by the House will not protect national security whistleblowersprovide jury trials, or protect whistleblowers terminated under the Bush and Obama administrations. These provisions were under serious consideration, and some of them were even passed by the Senate in May, but lack of fearlesstransparent advocacy by the lead lobbyists is to blame for a bill that falls short of what’s needed. Further, efforts to raise awareness among the federal whistleblower community about the lobbyists’ questionable tactics largely fell on deaf ears, raising questions about the extent to which the liberal good government establishment has “cornered the market” by co-opting its victims and suppressing dissent.

Below the Fold:

National Whistleblowers Center explains roots of divisions and setbacks in the federal whistleblower community

3:03 pm in Uncategorized by MSPB Watch

Here it is.

Key passage (emphasis mine):

On February 1, 2007, whistleblower organizations met together as the Make it Safe Coalition (MISC) and agreed that we would support only bills that were improvements on the current law and contained no backward steps for anyone. Those goals were almost met on January 28, 2009 when the House of Representatives voted for strong whistleblower rights, including full federal court access for all federal employees.

However, over the summer of 2009 things started to go wrong. In negotiations the NWC attended with representatives from the White House and Congress, it became clear that some in the Senate did not support full protection for federal employee whistleblowers. Additionally, the White House retreated from earlier pledges to support a strong federal employee whistleblower law, and instead explicitly stated in private meetings that they would oppose full court access and due process protections for national security employees.

Things took a further turn for the worse in August of 2009 when the Senate Committee on Homeland Security and Government Affairs “marked-up” and approved the Whistleblower Protection Enhancement Act. At the committee meeting the Senate sponsors stated that their bill was the “best” whistleblowers could get, and the community needed to get behind it.

In response to the Senate Committee mark-up, the MISC Executive Committee endorsed the bill. However, the NWC saw a number of defects in the legislation that made it impossible for us to support passage of that version of the Senate bill. Instead, we became the “skunk at the picnic” and were placed in a very difficult position of having to publicly oppose that version of the bill.

September 20

4:04 pm in Uncategorized by MSPB Watch

Two years ago today I was let go from the Federal Aviation Administration for disclosing wrongdoing and for refusing to violate the law. Since that time, I have worked to empower other whistleblowers and see that real reforms pass through Congress. I am sad to say that the biggest obstacle to progress has been Tom Devine of the Government Accountability Project. Numerous times he has advised me to wait until the Whistleblower Protection Enhancement Act passes before filing my complaint against the FAA. But it was only last winter that I tipped him off to the fact that, unless the WPEA contains specific language that allows it to extend retroactively, I and many other whistleblowers would not enjoy the new protections. He then purportedly adopted retroactivity as his top priority for WPEA.

In the last few weeks, I have asked him for regular updates about the bill, including explicitly asking about retroactivity, to no avail. He has been secretiveunprofessional, and untrustworthy. Now I know why:

The WPEA, as currently drafted, will likely not apply retroactively.*

So every whistleblower Devine told to wait has been waiting in vain. Some may have allowed their cases to go stale and be barred by the doctrine of laches.

It would be one thing if Devine and others tried in good faith to make sure the WPEA contained retroactivity. But they did not, because they adopted a secretivecronyistundemocratictimid, ineffective approach to passing public laws.

Shame on you, Tom Devine. You should not be anywhere near Congress for the next whistleblower reforms.

*I say likely for two reasons: There’s a very small chance that, if the bill gets punted until after the elections, the community may decide to rise up and wrest control away from Devine and the MISC Steering Committee, as they should, and get the public involved to pass a good bill. No good laws get passed behind closed doors.

The other reason is because the Senate committee report contains language that expresses the committee’s intent that the WPEA extend retroactively. The Supreme Court, however, has ruled that Congress must speak clearly when intending to extend laws retroactively because “retroactivity is not favored in the law.” It is not certain that legislative intent suffices to meet this burden.

Veal Pen Watchdogs Misappropriate Whistleblowers’ Support for Strong Bill to Advance Watered-Down Alternative

2:32 pm in Uncategorized by MSPB Watch

Beltway watchdogs the Government Accountability Project and the Project on Government Oversight are lobbying for the passage of a version of the Whistleblower Protection Enhancement Act which POGO claims is “the strongest version . . . [Senators and Representatives] think they can pass this week.” (GAP says virtually the same thing.)

In support, POGO links to an organizational letter it and GAP have drafted and circulated. POGO also links to an open letter by “prominent whistleblowers” who have “thrown their support behind this bill.” (Emphasis mine).

I can tell you that the open letter lobbies Congress to pass a strong WPEA and to specifically address five areas: retroactivity, jury trials, all circuit review, CUI/SSI loophole, and no summary judgment. The letter does not specifically support the version of the bill agreed upon these days, as described here. How do I know this? Because I wrote the letter, along with Tom Devine of GAP and Evelynn Brown of WhistleWatch.org.

That’s not to say that individual whistleblowers on it don’t support the current version, but we did not urge Congress to pass a bill that punts on jury trials and maybe also retroactivity and the CUI/SSI loophole and leaves the door open to summary judgment and revoking all-circuit review after 2 years.

Just to set the record straight, the open letter demands more than Congress is willing to pass at this time, and endorses nothing short of that.

So why is Congress not willing to pass a bill that’s as strong as we demanded?

###

Also, the CYA disclaimer that this is the “strongest version” of the bill Congress is willing to pass should have an asterisk after it, as in:

House and Senate cosponsors of the bills to strengthen protections for federal whistleblowers and taxpayers have reached an agreement and will offer the strongest version** of the Whistleblower Protection Enhancement Act (WPEA) they think they can pass this week.

**In the absence of public outcry.

Update: Ms. Brown’s response can be found here.

Public Sentiment Is Everything (Part II)

10:37 am in Uncategorized by MSPB Watch

On June 16, I wrote the following about the current efforts to pass the Whistleblower Protection Enhancement Act:

There’s a quiet revolution taking place in the federal whistleblower community. Once-obedient and silent whistleblowers are starting to take note that the professional advocates who speak for us are no longer sensitive to our needs. There’s a schism between two major groups, the Government Accountability Project and the National Whistleblowers Center, over the Whistleblower Protection Enhancement Act (or at least there used to be. NWC has not come out against the WPEA recently).

More of us are beginning to see NWC’s criticisms as valid after we engage in independent research, despite GAP’s attempts to poison the well. Tom Devine, Legal Director of GAP, once told me to eschew community organizing tactics in favor of Machiavellianism. The results of his favored approach are not difficult to see: the public is ignorant of the extent of retaliation and lawlessness in the federal government because the professional advocates eschew empowering ordinary citizens in favor of backroom deals and clientelism.

There’s a paternalistic streak running among these professionals, who believe that whistleblowers must be kept silent and obedient, lest the public look at any intra-group conflicts with horror and dismiss us all as cranks. I, for one, have more faith in people’s abilities to judge a situation on the merits than obsess over its optics. A quick look at GAP’s marketing propaganda and reports portrays whistleblowers as two-dimensional mannequins without free will or agency. That’s not without purpose.

The constant obsession over “tactics” being counterproductive begs the question –counterproductive to whom? And to whose agenda? Because GAP’s current tactics certainly don’t benefit me.

Perhaps the straw that broke the camel’s back was when Devine told me that our role was to give Congress a “pep talk,” not criticism, lest their staffers turn their backs on us and our attempt to pass legislation to protect federal employees and taxpayers. Also, that lobbyists and these staffers are the “lower common denominator” to whom we should simply defer.

Forgive me, Mr. Devine, but the lower common denominator are the whistleblowers your organization purports to empower.

The sooner you realize this, the better our chances at passing real reforms.

Last Friday, the whistleblower community received the following message:

Dear MISC Members, the following legislative report is from the MISC steering committee  

Members of our community have been working hard for the best outcome on Whistleblower Protection Enhancement Act issues. This progress report is so that all the other coalition groups, NGO’s and individuals working independently can make informed strategy choices, and so our work and others’ reinforces our mutual efforts most effectively. It also is to sound the alarm on a disastrous new Federal Circuit Court of Appeals decision that gives agencies a nearly blank check to cancel the civil service appeals system for hundreds of thousands of federal workers on the most contrived of national security grounds.

Let’s start with an update on the issues we’ve discussed frequently at coalition meetings and events over the past several months (in some cases, years!):

* Good news is that – 1) we’re making progress on our insistence for all circuits review, removing the Federal Circuit Monopoly, 2) there are ongoing negotiations between congressional offices on the burdens of proof that gives the government the upper hand in district court, and 3) clarification of an Executive Order that could have canceled WPA rights. 

We don’t yet know where we are on the new rights for intelligence community workers, but the intelligence committees are engaged and *appear* to be working in good faith thus far. We should know more by late next week.

* Bad news is that – 1) jury trials are still off the table, 2) we haven’t restored normal burdens of proof for bench trials in district court; and 3) summary judgment again is a threat; and  4) an amendment to close the PHS/NOAA “uniformed employees” WPA loophole, despite impressive public support and the recent FDA surveillance scandal, appears to be off the table due to opposition by the association representing PHS officers.

As explanation, House Judiciary Committee Chair Lamar Smith (R-TX) has continued to be an opponent of jury trials and all circuits review.  In addition, Senator Jeff Sessions’ (R-AL) office is demanding the burdens of proof handicap against whistleblowers if they go to court. All these offices have the authority to single-handedly stop the bill, either through their sequential referral authority (House Judiciary, already claimed), or their ability to impose a “hold.” (done in three other Congresses by Senator Sessions).  We are urging Chairman Issa to work with Smith to ensure credible court access, and for them to ignore the threat of Senator Sessions and pass something we can all support. We hope that if the House does this, then we will have an opportunity to isolate Sessions and work to overcome his objections on the last remaining issue of burdens of proof. We need Senator Grassley to support this outcome.

* Unresolved issues include –1) National security issues – HPSCI has not reported back revealing what it will accept.  2) “MacLean fix” so agency secrecy regs can’t supersede public whistleblower rights. Some House offices are considering this amendment, but there is generally wariness about adding anything “new” that could draw a new Senate hold. But unless it occurs, nearly any agency would be able to circumvent the WPEA and publicly gag its employees through internal regulations. 2) Savings provision so that those who have not yet filed can benefit from the WPEA. It is the same as the MacLean fix; no real opposition and a few offices working on it, but general nervousness. 3) Contractor whistleblower rights experiment.  This is in the House bill, but the Senate has never considered it within the context of the WPEA (though the Senate Homeland Security and Governmental Affairs Committee has passed the McCaskill bill to give rights to all employees of federal fund recipients, S. 241). We are being told that this will draw a hold from one or more Senators. *  Conyers/Northover – This new Federal Circuit decision overturns a MSPB ruling and allows agencies to bypass the civil service appeals process when removing anyone with a job designated “sensitive” – which the court defined as any work that “implicates national security”; i.e., virtually any job. If it sticks, there will be no system of due process to apply and enforce any of our WPEA victories. We think it imperative that Congress act to restore the civil service system, or our victory will be irrelevant until that occurs. WPEA is one potential option, but including this could endanger the bill, and most likely doom it to uncertainty in the Lame Duck session after the elections. We are working closely with allies in Congress and the Administration to find the best vehicle. A GAP release and AP article are linked.

WORKING TOGETHER

Through advocacy to all Hill offices and personal efforts with your own members, the MISC community at large can make a big difference, if not the difference, in our advocacy being heard, and by recruiting media calls to the politicians and shows/editorials, letters to the editor or op-eds; and generally convincing the politicians that they have to be on their best behavior with the WPEA, because too many voters know what it means.  The whistleblower letter organized by Evy Brown has been a very helpful contribution to the advocacy, as has the organizational support letter. Your help with recruiting signatories for both is needed! 

There is still a chance that a bill will be ready during the very narrow window  for congressional work in September. There are only SEVEN legislative days before they leave and are off until after the elections.  We are hoping they will avoid the all-bets-are-off lame duck scenario, but this is really out of our hands. Now is the time for all of us, in our own way, to make our move.

Thank you,

MISC Steering Committee

Shanna Devine
Investigator, Legislative Campaign Coord.
Government Accountability Project
1612 K St NW, Suite 1100
Washington, DC 20006
(202) 457-0034  ext. 132 (voice)
(202) 457-0059 (fax)
Email: shannad@whistleblower.org
Website:
www.whistleblower.org

When you try the same thing for 13 years but get the same result, perhaps it’s time to try something new. With different leadership at the helm.

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.

Public advocacy saves whistleblowers from administrative minefield

3:48 pm in Uncategorized by MSPB Watch

Great news out of Congress: legislators in the House of Representatives negotiating the Whistleblower Protection Enhancement Act have decided to scrap the provision that would give the Merit Systems Protection Board summary judgment powers.

Here’s a detailed writeup why this would have been a bad deal for whistleblowers; in short, it would have prejudiced many whistleblowers with agencies’ sophisticated legal maneuvering that would have denied them the ability to tell their side of the story to a third party.

What made this happen? As stated by Tom Devine of the Government Accountability Project, in a community conference call earlier today: sustained public protest.

“Congress heard you,” Devine said.

What lessons can we draw from this? Simply put, public outcry works. Backroom negotiations do not.

Devine also told the community that jury trials are off the table, and Senators Kyl and Sessions are demanding that even if bench trials are introduced, agencies should still have an easier time defeating whistleblower complaints. This is disappointing because the original deal was that if jury trials are introduced, then agencies’ burden of proof is lowered (to preponderance of the evidence), but if bench trials are introduced, the burden of proof stays the same (clear and convincing evidence).

Kyl and Sessions are reneging on their promise.

The already-passed Senate version of the WPEA contains this very compromise: jury trials and preponderance of the evidence standard. The initial House version contained the other compromise: bench trials and clear and convincing evidence standard.

If clear and convincing evidence is good enough for an MSPB judge, it should be good enough for a federal district judge. (It should be also good enough for a jury, but that point’s moot).

Kyl and Sessions should answer why they reneged on their earlier promise.

How do we seek change?

Look to the summary judgment example.

Finally, we should expect Congress to pass the WPEA in September, Devine said.

How Obama broke his campaign promise to whistleblowers

7:14 pm in Uncategorized by MSPB Watch

Here’s a brief rundown: in 2007-08, Obama ran on a platform of open government, transparency, and protecting whistleblowers. He even relied on his experience as a whistleblowers’ attorney to prove his bona fides. He won.

Two activists in Guy Fawkes masks hold a sign of Bradley Manning.

Anonymous activists in support of Bradley Manning (Photo: Bradley Manning Support Network / Flickr).

Around February 2009, Senate Majority Leader Harry Reid had the opportunity to provide long-sought protections to whistleblowers through the stimulus bill. He blew it. Meanwhile, the Justice Department was in the process of prosecuting (or preparing the prosecution of) the highest number of whistleblowers in history. At the same time, the whistleblower community (and then some) got together to prod the Democratic-controlled Congress to complete a decade-long attempt to update the Whistleblower Protection Act. This was in May 2009.

Then the Senate released their bill, which was watered down and divided the community. The White House was backing away from Obama’s campaign pledge. The National Whistleblowers Center stood their ground, arguing that jury trials are crucial. The Government Accountability Project and a few others, including the Project on Government Oversight, wavered. (They also had access to the White House and plenty of attention (and cash) from corporate-funded foundations with ties to the administration.) A split in the community occurred, and the bill died. Another bill cropped up, but it’s virtually identical to the one that came before.

So here we are: divided, demoralized, and adrift. GAP, POGO, et al are still peddling a weak, if not harmful bill while trying to silence dissent.

Obama is still prosecuting whistleblowers.

Retaliation goes on. Corruption goes on.

There’s a name for the kind of co-option that took place in the past three plus years: veal pen politics.

Public Sentiment Is Everything

8:59 am in Uncategorized by MSPB Watch

There’s a quiet revolution taking place in the federal whistleblower community. Once-obedient and silent whistleblowers are starting to take note that the professional advocates who speak for us are no longer sensitive to our needs. There’s a schism between two major groups, the Government Accountability Project and the National Whistleblowers Center, over the Whistleblower Protection Enhancement Act (or at least there used to be. NWC has not come out against the WPEA recently).

More of us are beginning to see NWC’s criticisms as valid after we engage in independent research, despite GAP’s attempts to poison the well. Tom Devine, Legal Director of GAP, once told me to eschew community organizing tactics in favor of Machiavellianism. The results of his favored approach are not difficult to see: the public is ignorant of the extent of retaliation and lawlessness in the federal government because the professional advocates eschew empowering ordinary citizens in favor of backroom deals and clientelism.

There’s a paternalistic streak running among these professionals, who believe that whistleblowers must be kept silent and obedient, lest the public look at any intra-group conflicts with horror and dismiss us all as cranks. I, for one, have more faith in people’s abilities to judge a situation on the merits than obsess over its optics. A quick look at GAP’s marketing propaganda and reports portrays whistleblowers as two-dimensional mannequins without free will or agency. That’s not without purpose.

The constant obsession over “tactics” being counterproductive begs the question – counterproductive to whom? And to whose agenda? Because GAP’s current tactics certainly don’t benefit me.

Perhaps the straw that broke the camel’s back was when Devine told me that our role was to give Congress a “pep talk,” not criticism, lest their staffers turn their backs on us and our attempt to pass legislation to protect federal employees and taxpayers. Also, that lobbyists and these staffers are the “lower common denominator” to whom we should simply defer.

Forgive me, Mr. Devine, but the lower common denominator are the whistleblowers your organization purports to empower.

The sooner you realize this, the better our chances at passing real reforms.