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.

Congress Troubled by Suspicious Death of Russian Whistleblower: Congress seeks to use legislative authority to punish Russian officials allegedly involved in the suspicious 2009 death of Russian whistle-blower and lawyer Sergei Magnitsky, according to the The Hill. NPR reports that the bill in question could complicate US-Russian relations, jeopardizing Hillary Clinton’s 2009 “reset” with the Russian government. However, a person interviewed by NPR said a “reset … with Russian society” is required instead. The story of Magnitsky’s death has been chronicled in an award-winning documentary. Elsewhere, Firedoglake takes on the Congress for selective concern about civil and human rights.

Below the Fold:

–A whistleblower conference is scheduled for May 20-22 in Washington, D.C.

–A recently-unearthed FAA powerpoint presentation says the FAA “must evolve our safety oversight system and embrace the view that industry — not the regulator — is responsible for ensuring safety,” despite decades-old law placing safety regulation as the FAA’s highest priority.

–The first criminal charges are filed in the Deepwater Horizon gulf oil spill.

–Bradley Manning’s trial continues to be shrouded in secrecy.

–The Non-Federal Employee Whistleblower Protection Act reports out of a Senate committee. The bill would expand whistleblower protections for federal contractors.

–The House of Representatives passes the DATA Act, which would create a five-member commission to oversee federal spending.

–Vermont becomes the third state to call for a constitutional amendment overturning Citizens United v. FEC.

–Green Party presidential candidate Jill Stein vows to pardon Bradley Manning as president.

–A Countrywide whistleblower laments the lack of accountability and ethics in the financial sector.

–A Missouri bill to restrict common law whistleblowing protections is passed in the General Assembly. The bill is sponsored by Rep. Kevin Elmer, who has a record of sponsoring discriminatory and birther legislation.

–The Securities and Exchange Commission was accused this week of blowing a whistleblower’s cover. The SEC responds.

–The summary judgment provision in the Whistleblower Protection Enhancement Act of 2012 comes under scrutiny.

–A federal employment attorney advises employees to violate the law when ordered to by superiors (notwithstanding their conscience or oath to the Constitution).

–The Make It Safe Campaign will hold a general membership meeting this Tuesday, May 1.

Send tips to tips@mspbwatch.net.

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.

Foreign Press Covers Obama’s War on Whistleblowers: A Guardian (UK) article covers recent prosecutions of whistleblowers by the Obama Administration and discusses the general state of free speech and dissent during Obama’s reign. Separately, Russia Today interviews two whistleblowers’ lawyers from competing organizations and discusses the case of John Kirikaou, the CIA whistleblower and torture critic who was recently indicted for allegedly sharing secret information with reporters. NPR and Salon have coverage of that prosecution.

FBI Blocks Publication of Whistleblower’s Book Critical of Agency: A lawyer for FBI whistleblower Sibel Edmonds claims the FBI is blocking publication of his client’s book in violation of agency regulations, according to a press release by the National Whistleblowers Center. Edmonds, who worked as a contract linguist at the FBI, was fired six months after 9/11 following complaints to management about possible compromises to national security and shoddy wiretap translations, according to the Associated Press. Edmonds’ suit was blocked by Attorney General John Ashcroft, who invoked the controversial state secrets privilege. Edmonds has additional coverage on her independent media site, Boiling Frogs Post. She is also featured in this podcast interview by Peter B. Collins.

99% Spring: Real Grassroots Activism or Partisan Co-opting? The “99% Spring” activism training effort by MoveOn.org is seen as an attempt to co-opt the Occupy movement for Democrats’ electoral gain, according to an anonymous party activist. Mother Jones, which is seen with the same suspicion as MoveOn in the link above, offers one account of MoveOn’s training, but a different on-the-ground account is unmoved.

Updates in State Dep’t Whistleblower Peter Van Buren’s case: State Department critic and whistleblower Peter Van Buren is profiled by his lawyer, Jesselyn Radack of the Government Accountability Project, who is covering for Glenn Greenwald on Salon.com. Van Buren separately discusses a recent interrogation by Diplomatic Security. The State Department is moving to fire Van Buren for critical blogging of his employer.

Below the Fold:

–JOBS Act encourages fraud in the financial markets, according to Rolling Stone columnist Matt Taibbi.

–The reputation of the late community organizer Cesar Chavez comes under scrutiny for questionable professional conduct.

–A fired SEC lawyer will have a chance to get his job back following a decision by the Court of Appeals for the Federal Circuit.

–A power struggle at a watchdog agency could undermine nuclear plant safety.

–The White House rejects requests to sign executive order prohibiting LGBT discrimination by federal contractors.

–A California state report blasts UC-Davis over pepper spray incident.

Send tips to info at mspbwatch dot net.

Society typically thinks of a whistleblower as a “person of conscience,” someone who comes across wrongdoing in the workplace and is compelled to expose and correct it. Given the threat this poses to the wrongdoers, harassment, retaliation, and expulsion usually follow. The law deals with these situations by making it unlawful to retaliate against whistleblowers, and compels the wrongdoers to compensate the whistleblower for lost wages, medical expenses, and, in some cases, anguish, humiliation, and loss of enjoyment.

Other laws might provide the whistleblower with a percentage of recovery, 10%-30%, as in the case of the False Claims Act or several financial whistleblower laws. The rationale for such an award is to incentivize people to come forward and expose fraud that costs society millions, if not billions, of dollars, and to make the fraudsters think twice about committing such acts in the future.

In the federal False Claims Act, the whistleblower need not be a human being – it could be an entity, such as a union or organization.

During the rulemaking process to establish the Securities and Exchange Commission’s new whistleblower office, authorized by the Dodd-Frank financial reform bill of 2010, several groups tried to get SEC to define “whistleblower” to include entities such as them. They did not succeed.

On March 4, 2011, and March 15, 2011, Tom Devine (Government Accountability Project Legal Director), Mark Cohen (then-GAP Executive Director, now Deputy Special Counsel, U.S. Office of Special Counsel), Michael Smallberg (POGO Investigator), Patrick Szymanski (Change to Win General Counsel), Reuben Guttman (Voices for Corporate Responsibility Co-Founder), and Jason Zuckerman (then-GAP Advisory Committee Director and The Employment Law Group Principal, now OSC Senior Legal Advisor) met with SEC Commissioners to discuss a number of things in a joint letter they wrote, dated December 17, 2010. Here is that letter.

Within that letter is the following proposal:

1. Definition of a Whistleblower

The proposed definition, under subsection (a), states “[y]ou are a whistleblower if, alone or jointly with others, you provide the Commission with information relating to a potential violation of the securities laws. A whistleblower must be an individual. A company or other entity is not eligible to be a whistleblower.” (Proposed § 240.21F-2, emphasis added).

Although the word “individual” is used in the enabling statute, use of this word in similar whistleblower legislation, i.e., the False Claims Act, 31 U.S.C. § 3730 (d), has been construed to allow non-governmental organizations (NGOs) and/or worker representatives, including labor unions, to bring claims. See In Us. ex rel. Koch v. Koch Industries, Inc., 1995 WL 812134, at *12 (N.D.OkL Oct 6, 1995) (the Court held “the whistle-blowing insider is not the only type of person that can qualify as a qui tam plaintiff . .. A qui tam plaintiff may qualify as an original source where the ‘core’ information on which Plaintiffs’ (complaint) is based was obtained through their own investigation.”); US. ex reI. Plumbers and Steamfitters Local Union No. 38 v. C. W Roen Canst. Co., 183 F.3d 1088 (9th Cir. 1999) (no question that a union had standing to bring a qui tam action alleging a contractor and its president and office manager violated the False Claims Act.); US. ex reI. Local 342 Plumbers and Steamfitters v. Dan Caputo Co., 321 F.3d 926 (9th Cir. 2003) (local unions sued contractors under the False Claims Act for failure to pay prevailing wage rates. While the claim was not successful, it was not because the unions lacked standing).

The SEC faces a daunting task in weeding through claims made by whistleblowers. Accordingly, the rules should encourage claims made by those individuals and entities who are in the best position to document and analyze the wrongdoing. Labor unions and NGOs have the institutional capacity to digest and analyze relevant information in order to bring well documented claims. Labor unions and NGOs, by their very nature, understand the complexities of the administrative compliance process and potentially have the experience to manage claims. Therefore, discouraging these institutions from acting as whistleblowers and bringing claims to the SEC, defeats the overall intent of the Act. If these regulations are meant to serve the public interest, they must encourage whistleblowers with the capacity to bring the most meritorious claims to come forward.

It’s an interesting argument, however the last two lines prove too much. You see, entities such as GAP and the law firm The Employment Law Group are not conscientious employees caught in an ethical dilemma at the workplace (or their local unions whose members are affected by the wrongdoing and retaliation). These entities exist to serve such employees: one ostensibly for charitable purposes (GAP), the other for profit (ELG). They can get attorneys’ fees under the law; is that not sufficient incentive to help employees come forward? At bottom, the line about serving the public interest is unpersuasive because it’s apparent that this proposal would serve these organizations’ self interest.

That said, the SEC was tight-lipped in responding to this proposal:

We have decided not to extend the definition of whistleblower beyond natural persons because we believe that this is consistent with the statutory definition, which provides that a whistleblower must be an “individual.” The ordinary meaning of “individual” is “natural person,” and nothing in the statutory text or legislative history suggests a different meaning here. Although one commenter identified a reference to “individuals” in the False Claims Act to argue that the term should be read to extend beyond natural persons, we note that the False Claims Act otherwise repeatedly refers to whistleblowers as “persons” (which ordinarily extends beyond natural persons),30 and we believe this explains the different result under that Act.

30 Compare 31 U.S.C. 3730(e)(4)(B) with id. 3730(b)(1) (“A person may bring a civil action ….”), and id. 3730(b)(4)(B)(5) (“When a person brings an action ….”).

So what does this reveal about GAP, et al? Perhaps nothing earth-shattering, that institutions, no matter their purpose, will seek out opportunities to sustain and enrich themselves.

The key question, however: at whose expense?

Shredded (photo: beginasyouare/flickr)

A document obtained from the National Archives and Records Administration, dated January 30, 2003, shows that the Office of Special Counsel is allowed to destroy “litigation and investigative files” for cases that are not noteworthy after only three years.*

Such a policy, if still in place, would make it difficult to reopen any cases for whistleblowers who were denied due process at the hands of OSC since its founding 33 years ago (and there are many).

A FOIA request is in process to determine if this policy is still in place. One would hope, after the SEC records destruction debacle of this past summer, that critical law enforcement agencies would hold on to their files for as long as possible.

*Elaine Kaplan was Special Counsel at the time. Ms. Kaplan is now general counsel for the Office of Personnel Management.

NARA Records Retention Schedule for OSC

See also:

• OSC General Counsel’s 2007 declaration
• Exhibit to 2007 OSC GC declaration