Usually it is the whistleblowers who are accused of disclosing classified information, but here is an example of a whistleblower suffering retaliation for refusing to disclose classified information.
On July 25, 2013, the U.S. Office of Special Counsel filed a stay request with the Merit Systems Protection Board on behalf of Brendan Hickey, an Immigration and Customs Enforcement special agent who refused to compromise an investigation and risk disclosing classified information.
The Board granted the stay request four days later. According to the Board, the agent was involved in a top secret, counter-proliferation investigation involving a confidential source provided by the Drug Enforcement Agency. At one point in 2012, he was ordered to create reports on the investigation in the Treasury Enforcement Communications System, but he refused to do so, explaining that the law prohibited the storage of top secret information on TECS.
“Knowing that TECS was not sufficiently secure to store investigative information related to classified material, Hickey believed that inputting such information into TECS would violate federal laws that restrict disclosure of classified information, such as 18 U.S.C. § 798,” the Board said.
(18 U.S.C. 798 is believed to be one of the statutes NSA whistleblower Edward Snowden is alleged to have violated.)
After refusing to comply with other such orders, he was told by a superior that he would be insubordinate, and that “when you challenge the [Special Agent in Charge], you will lose.”
Hickey attempted to comply with the order while following the law, by entering only general details about investigation into TECS. But this was met with a supervisor’s threat to reassign him to “Puerto Rico, the Mexican border, or an immigration group outside his commuting area.”
After the birth of his child in March 2013, Hickey requested leave under the Family and Medical Leave Act. A month later he requested additional, open-ended leave due to medical issues experienced by his wife, necessitating his continued care and support at home. A few weeks later, his supervisors nominated him and another agent to a detail in Puerto Rico, the only two agents nominated in response to a nationwide call. Despite protesting, he reported there on July 8, 2013.
The Board issued a 45-day stay of the agent’s detail, effective August 5 through September 19, during which Hickey will remain in his position and perform regular duties as a Special Agent with ICE, assigned to the ICE office in Providence, Rhode Island (the stay is timed to allow him to complete his affairs in San Juan).
It is not uncommon for OSC to request additional stays while it conducts an investigation into the alleged agency retaliation.
MSPB Chair Susan Tsui Grundmann granted the stay request.
At issue are a statute and a regulation: 5 U.S.C. 7121(g) and 5 C.F.R. 1209.2. Section 7121(g) requires employees fighting an agency action to choose between a union grievance, an MSPB direct appeal, and a personnel complaint at OSC. More on this statute below.
–Otherwise Appealable Action appeals – a/k/a direct appeals, those which allow non-probationary employees to challenge terminations or suspensions directly at the MSPB; and
–Individual Right of Action appeals – the mechanism added by the Whistleblower Protection Act of 1989, which allows whistleblowers to file a complaint at OSC and then appeal at MSPB without losing any rights for having gone to OSC.
In 1994, however, two unions sought to force whistleblowers to choose between unions, OSC, or MSPB, with the stated objective of making OSC compete for relevancy.
Mark Roth, then General Counsel of AFGE, had this to say (page 17):
AFGE views the alternative forum option offered by [5 U.S.C. 7121(g)] as a direct acknowledgement that the OSC has failed to act in a timely and effective manner. . . . I would stress that the bill neither allows multiple bites of the same apple nor does it abolish outright the OSC. . . . [W]e believe that by breaking up the Special Counsel’s monopoly and requiring that office to compete with others, this bill may provide that office with the necessary incentive to provide a quality product in order to survive or it will see its whistleblower market go elsewhere.
Problematically, this strikes at the core innovation of the Whistleblower Act of 1989 — the IRA — which sought to give whistleblower two bites at the same apple – once at OSC, and another at MSPB, if necessary to achieve justice following OSC’s failures. Moreover, experience has shown that the competition envisioned by AFGE has not made OSC more relevant. Now, it may serve to undercut OSC and harmwhistleblowers.
Tim Hannapel of NTEU revealed the NTEU’s key goal as protecting the union grievance procedure (page 20):
We are also very much in favor of the bill’s attention, as Mr. Roth just testified, to the role of the negotiated grievance procedure for resolving disputes that arise in the workplace. . . . Together with the recognition of the plenary powers granted to the arbitrator, the salutary objectives of that grievance procedure would be much easier to realize. We believe that the combination of these significant improvements should lead to greatly expanded protections for whistleblowers. . . . Third, we suggest that even more attention be paid to the negotiated grievance procedures, possibly by making it the exclusive administrative remedy for items that fall within its scope, and this would honor the significance of the labor/management relationship that is embodied in the collective bargaining agreements. . .
–Currently, if the whistleblower is terminated, goes to OSC, and then files the IRA, he can still fight the agency action on the merits, in addition to bringing up a whistleblowing reprisal defense. Plus, he can bring a 2302(b)(9) or discrimination defense.
–Under the proposed change, however, if the the whistleblower is terminated and files a complaint with OSC, when he files the IRA at MSPB, the only issues in play would be the whistleblowing prima facie case, the agency’s clear and convincing defense, and nothing else. No opportunity to fight the termination on the merits (i.e., argue he didn’t do what he is accused of doing), or bring a 2302(b)(9) or discrimination defense.
In other words, if this revision is implemented, MSPB would be asking a whistleblower to choose between filing right away at MSPB and preserving all of his rights, or going to OSC and giving up some. In addition to harming whistleblowers’ rights, it would also make OSC a less attractive option.
–Will A. Gunn, General Counsel, Department of Veterans Affairs: “We agree with the Board’s decision to promulgate regulations that overrule Massimino and bring Board practice into compliance with the requirements of 5 U.S.C. 7121(g).”
–Catherine L. Kessmeier, Deputy Assistant General Counsel, U.S. Navy: “We support the MSPB’s new interpretation of section 7121(g). That statute permits employees affected by an appealable action to elect ‘not more than one of’ three remedies: an MSPB appeal, a grievance, or an OSC complaint with the potential of an IRA appeal to the MSPB. By adjudicating IRA appeals of otherwise appealable actions in the same manner as direct appeals, the MSPB effectively allows employees to elect two remedies, and OSC complaint and an MSPB appeal. By adjudicating those IRA appeals in the same manner as IRA appeals of non-appealable actions, the Board would give effect to section 7121(g) and to the employee’s election under that statute. Including notice of the right to make an election under section 7121(g) and the ramifications of such an election would not impose a substantial burden on the agency.”
–Jessee C. Alexander-Hoeppner, Attorney-Adviser, Department of State: “We support the proposed changes to [section] 1209.2 pertaining to the Board’s jurisdiction.”
It depends on what MSPB does in the beginning of June. They may issue this proposed revision for notice-and-comment rulemaking, or not, depending on the feedback they received. More news as it happens.
Earlier today, a nominee of one party appeared in front of a lone Senator of the opposite party. These men traded cordial remarks while discussing the future of the nominee’s legal and political career. Mark A. Robbins, nominee for the Merit Systems Protection Board, appeared in front of the Senate Homeland Security and Government Affairs Committee, which was represented solely by Senator Daniel Akaka.
Akaka began by introducing Robbins, who was flanked by his parents and many of his friends. After going over his resume, Akaka swore in Robbins and handed him the floor. Here’s what Robbins had to say.
This was followed by a few softball questions, and the matter was over and done with in less than an hour.
What did not take place:
Any serious discussion of the MSPB’s current difficulties, Robbins’ plans for helping to remedy them, and whether MSPB will fulfill its mandate as originally designed by Congress. To hear it from Robbins’ himself (and I was there), you would think that MSPB was doing just fine and was in no need of any course correction.
My blog – its very reason for existence – is proof to the contrary.
Sadly, Akaka played along with this charade, and the NGOs who deign to represent the whistleblower and good government community (and who indeed have a near-monopolistic hold on Congress’ attention) were nowhere to be found. Not one word has been uttered from the press shops of GAP, POGO, MISC, or NWC about Robbins’ nomination. Maybe maintaining cordial relations is more important than holding government officials’ feet to the fire; maybe discussions take place behind closed doors and out of public sight; maybe it doesn’t really matter who the nominee is as long as the whistleblowers keep coming in through the front door.
The Civil Service Reform Act was signed into law in 1978. At the time, it was landmark legislation that was motivated by the abuses of the Watergate scandals. The Whistleblower Protection Act was passed in 1989, a year before the Americans with Disabilities Act. The ADA has achieved public renown and near-constitutional status. No one would think of repealing it or letting its provisions go unenforced. But how many Americans have heard of the CSRA or WPA? How many know the turbulent history of the Office of Special Counsel, assuming they’ve even heard of it? How many realize that the WPA is one of the least observed laws in the U.S. Code?
It’s been over a dozen years since whistleblower legislation was passed by Congress. But do these new, enhanced laws matter if they can be gutted and ignored before the ink dries?
It’s not enough to pass new laws, or to make sure the ones in the books are enforced. If we really care about good government, it’s also important to raise the profile of these laws to near-constitutional levels. It starts by practicing transparency, by asking the tough questions regardless of impact on personal relationships, and by looking past transactional, beltway politics.
In 2003, Federal Air Marshal Robert MacLean blew the whistle on a TSA plan to cut back air marshals for long distance flights – the very flights taken by the 9/11 terrorists. TSA notified MacLean and the other marshals via unsecured text message. The reason for the cutback was so TSA could save money on hotels for its marshals, at the same time it was handing out bonuses to TSA senior management.
MacLean went to his supervisor and to the Inspector General but neither did anything. Eventually, he went to an MSNBC reporter. As a result, Congress became outraged and the TSA plan was scrapped.
MacLean’s disclosure eventually got him fired, but not before TSA retroactively marked the unsecured text message “Sensitive Security Information,” which could then justify his firing.
After going through rounds of litigation, at both the federal judiciary and an administrative kangaroo court that is the Merit Systems Protection Board (MSPB), MacLean’s case is now at the Federal Circuit Court of Appeals.
Importantly, in 2011, the Obama-appointed MSPB court upheld a Bush-appointed MSPB decision from 2009 finding against MacLean and justifying his termination. To do this, both courts had to ignore clear legislative text and congressional intent.
(As an aside, the Obama-appointed MSPB Chair, Susan Tsui Grundmann, allegedly apologized to MacLean’s attorney at an informal social gathering for coming up with the decision against his client, saying that the Board worked for months to come up with a way around the 2009 decision, to no avail. However, a cursory look at the 2011 decision reveals that it was probably written over the course of a weekend, inexcusably ratifying politically-motivated, whistleblower-hostile arguments that have no bearing to the law. If there were ever an argument that the MSPB is independent from the administration in name only, MacLean’s case is it.)
In any event, MacLean is fighting this decision on appeal. One of the points made by MSPB in the 2011 decision is that MacLean’s disclosures would have been protected if he went to the Office of Special Counsel. However, he did not know of OSC at the time he blew the whistle, nor was DHS educating its employees about OSC, and it’s doubtful whether OSC was even willing or able to receive any sensitive, secure disclosures.
Therefore, MacLean was in no position to go to OSC. If so, why should he be punished for acting out of conscience and possibly preventing another 9/11, when TSA and OSC provided him with no means of disclosing information, and years later a partisan court rubberstamps retaliation by imposing on him a requirement he couldn’t meet at the time? Aren’t we second-guessing the brave men and women who are on the front-lines of homeland defense, to our collective detriment?
This is the essence of a proposed amicus brief to bring to the attention of the Federal Circuit judges the Catch 22 described above. To do this, I made a FOIA request to OSC to see if it was in a position to accept disclosures prohibited by law – the kind of disclosure MacLean is alleged to have made. Time is of the essence though, as the brief has to be submitted by March 23.
Unfortunately, OSC is refusing to grant a request for expedited processing. There is one possibility, though, as under the law an expedited request may be made by “a person primarily engaged in disseminating information, an urgency exists to inform the public about an actual or alleged federal government activity.” (This blog likely does not qualify, as OSC defines “a person primarily engaged in disseminating information” as “a person whose main professional activity or occupation is information dissemination, though it need not be his or her sole occupation.” As a part-time hobby, MSPB Watch likely does not qualify.)
The question remains whether they will work to ensure that OSC provides the relevant information needed to file the amicus brief.
It bears mentioning that, in 2008 and 2009, GAP relied on its work on behalf of MacLean to justify its tax-exempt status. On the other hand, GAP’s Legal Director recently stated that “Everybody knows that Title 5 [executive branch] employees can make classified disclosures to OSC.” As I stated in that post, this is contradicted by MacLean’s actions (as well as that of another GAP client, Thomas Drake).
Given the Federal Circuit’s track record on appeals from MSPB, one would hope that GAP would suborn its political agenda and do everything it reasonably can for its client, as part of its obligations to zealously represent him.
WASHINGTON — Joseph Carson PE, multiple-time prevailing federal whistleblower and nuclear safety engineer, called for an investigation by the Department of Justice’s Office of Professional Responsibility (OPR) into the conduct of attorneys from the office of the U.S. Attorney for the District of Columbia. The basis for the request stems from a 2007 lawsuit against the U.S. Merit Systems Protection Board (MSPB). The attorneys, Sherease Louis, Rudolph Contreras, and then-U.S. Attorney Jeffrey A. Taylor, argued on behalf of their client, the MSPB, that MSPB’s formal interpretation of a critical federal civil service law had been validated, several times since 1978, when Congress reauthorized MSPB. However, MSPB’s response to a recent Freedom of Information Act (FOIA) request reveal that no such formal interpretation exists.
One of the attorneys named in the request – Rudolph Contreras – has been nominated for a federal district court judgeship in the District of Columbia court – the very court he apparently made a false argument. The Senate Judiciary Committee approved his nomination with an unopposed voice vote on November 3, 2011. A full Senate vote is due at any time.
The 2007 lawsuit began when Carson sued the MSPB to compel it to comply with its mandate under 5 U.S.C. 1204(a)(3): to “report to the President and to the Congress whether the public interest in a civil service free of prohibited personnel practices is being adequately protected.” Carson contends that the MSPB, in its 34 year history, has never complied with this duty.
“If these allegations are true, it means that the Justice Department colluded with MSPB to cover up the fact that MSPB is in violation of its most critical mandate: to be the guardian of the civil service system by shining a bright light on abuses in federal agencies,” Carson said. “Now, we come to find out that Mr. Contreras is mere days away from being confirmed to the D.C. district court. His nomination should be put on hold until the Senate can get to the bottom of this situation. This is particularly so as the allegations involve a critical law – perhaps THE critical law – for Congress’s ability to do oversight of the integrity of the entire federal civil service.”
A copy of the request to the Office of Professional Responsibility, as well as letters to the appropriate Senate offices, are available at www.mspbwatch.net.
On January 18, Chairman Grundmann of the Merit Systems Protection Board granted my appeal in a FOIA request that asked for interpretations pertaining to 5 U.S.C. 1204(a)(3). That statute governs the MSPB’s duty to report to Congress and the President “whether the public interest in a civil service free of prohibited personnel practices is adequately protected.” The FOIA request asked for any interpretations or other documents interpreting that phrase.
I made that request because Justice Department attorneys referred to such an interpretation in a 2007 FOIA lawsuit brought against MSPB by a third party (Joe Carson, a fellow whistleblower).
Now, we find out, there was no such interpretation, at least not one that can be made public.
Mr. Mark A. Robbins, Esq.
Executive Director (acting)
Election Assistance Commission
1201 New York Avenue, N.W.
Washington, D.C. 20005
Subject: The Future of the Merit Systems Protection Board
Dear Mr. Robbins,
Congratulations on your nomination to the Merit Systems Protection Board (MSPB).
We are current and former federal employees who have utilized the services of the MSPB and/or the U.S. Office of Special Counsel (OSC). In our experience, these agencies have contributed to a much more diminished civil service than the one envisioned during their creation by the Civil Service Reform Act of 1978.
We contend that MSPB has been out of compliance with its positive statutory duty to conduct “special studies” focusing on whether federal employees are adequately protected from prohibited personnel practices (PPP’s), including the whistleblower reprisal type PPP, per 5 U.S.C. § 1204(a)(3). This issue has given rise to numerous suits and FOIA requests, none of which has dispelled these concerns.
We seek your input, either before, during, or after your confirmation hearings (pursuant to questions for the record), to address the special studies concern as well as other pressing matters, such as:
The disparity between evidentiary standards for granting stays (“preliminary relief” is a better description) when sought by OSC and when sought by employees;
The lack of an Inspector General at MSPB;
How the “election of remedies” of 5 U.S.C. 7121(g), by including filing a complaint with OSC, creates a perverse incentive for federal labor unions to want OSC to be ineffective;
Requiring OSC to file a 5 U.S.C. § 1214(e) report with the Board to establish jurisdiction for corrective action; and
Ethical obligations for MSPB attorneys, including any attorney Board Members, when MSPB fails to comply with the law.
You are not yet employed by MSPB, therefore it is not yet your client, and you are not precluded by attorney-client ethics from speaking frankly about its interpretation of, and compliance with, 5 U.S.C. § 1204(a)(3), as well as the issues listed above.
We look forward to your views on these pressing matters.
Chairman Susan Tsui Grundmann
U.S. Merit Systems Protection Board
1615 M Street, NW
Washington, DC 20419
Dear Chairman Grundmann,
This is an appeal of the Merit Systems Protection Board’s (MSPB) determination, dated December 9, 2011, into my Freedom of Information Act (“FOIA”) request dated December 6, 2011.
In that request, I requested the following information:
Statements of policy,
Administrative staff manuals and instructions to staff that affect a member of the public,
Rules of agency organization, procedure, or practice,
Any other documents
Related to any interpretation of 5 U.S.C. 1204(a)(3) regarding whether the public interest in a civil service free of prohibited personnel practices is being adequately protected.
This request does not request or refer to any currently publicly available special studies relating to the civil service and to other merit systems in the executive branch.
The MSPB determination repeated most of the request and stated, in relevant part:
Your request has been processed in accordance with the Merit Systems Protection Board’s (MSPB) regulations at 5 CFR Part 1204 that implements the FOIA.
We have conducted a thorough search of our records and found records that are responsive to your request. We are releasing to you the enclosed copies of the MSPB reports in their entirety.
Those reports are:
Prohibited Personnel Practices – A Study Retrospective (June 2010)
Prohibited Personnel Practices: Employee Perceptions (Aug. 2011)
Grounds for Appeal
Denial of Access to Agency Records
The MSPB’s determination constitutes a denial of access to agency records because the MSPB, in litigation, relied on documents referred to in this request but have not submitted them to requester. In 2007, federal whistleblower and Department of Energy Nuclear Safety Engineer Joe Carson sued the MSPB in federal court, seeking a writ of mandamus to compel the MSPB to comply its duty in 5 U.S.C. § 1204(a)(3) to “report to the President and to the Congress as to whether the public interest in a civil service free of prohibited personnel practices is being adequately protected.” 
The MSPB, as represented by Department of Justice lawyers, responded by pointing to a multitude of MSPB studies and alleged that it has complied with this duty, stating:
Each special study and the resulting report addresses an important aspect of the civil service, and provides some information about whether the public interest in a civil service free of prohibited personnel practices is being adequately protected. The federal government is a large organization and addressing the health of the merit systems is a complex undertaking. By conducting detailed studies of particular aspects of the merit systems and reporting the results of those studies to the President and to Congress, the Board is best able to use its necessarily limited resources to serve the public interest in a prohibited personnel practice free federal government. Simply put, the Board’s special studies and reports, which address comprehensive aspects of the federal civil service, individually and collectively meet the requirements of 5 U.S.C. § 1204(a)(3).
Moreover, and more to the point, MSPB argued the following point:
Finally, at no point has Congress amended subsection 5 U.S.C.§ 1204(a)(3) to redirectthe Board’s actions under the statute, despite repeated reauthorizations. See Pub. L. 103-424, § 9, 108 Stat. 4361 (reauthorizing the Board for fiscal years 1993 through 1997); Pub. L. 104-208 § 641, 110 Stat. 3009 365 (reauthorizing the Board for fiscal years 1998 through 2002); Pub L. 107-304, § 2(a), 116 Stat. 2364 (reauthorizing the Board for fiscal years 1993 through 2007). The Supreme Court has held that “[w]hen Congress revisits a statute giving rise to a longstanding administrative interpretation without pertinent change, the ‘congressional failure to revise or repeal the agency’s interpretation is persuasive evidence that the interpretation is the one intended by Congress.’” Commodity Futures Trading Comm’n v. Schor, 478 U.S. 833, 846 (1986) (quoting NLRB v. Bell Aerospace Co., 416 U.S. 267, 275, (1974)); see Doris Day Animal League v. Veneman, 315 F.3d 297, 300 (D.C. Cir. 2003).
(Emphasis added.) It is precisely the “agency interpretation” authorizing the “Board’s actions” referred to in the preceding paragraph that this FOIA request seeks. However, the MSPB’s determination contains nothing of the sort.
First, an interpretation by an agency assumes some sort of statement that the agency interprets a statute or regulation a certain way. Under the Administrative Procedure Act (APA), which governs MSPB, this takes the shape of a “rule”:
”rule” means the whole or a part of an agency statement of general or particular applicability and future effect designed to implement, interpret, or prescribe law or policy or describing the organization, procedure, or practice requirements of an agency and includes the approval or prescription for the future of rates, wages, corporate or financial structures or reorganizations thereof, prices, facilities, appliances, services or allowances therefore or of valuations, costs, or accounting, or practices bearing on any of the foregoing[.]
Further, under the APA, all rules promulgated by an applicable agency must be published in the Federal Register, except for “interpretative rules, general statements of policy, or rules of agency organization, procedure, or practice.”
Second, the Freedom of Information Act requires each agency to “make available to the public information as follows:”
(D) substantive rules of general applicability adopted as authorized by law, and statements of general policy or interpretations of general applicability formulated and adopted by the agency;
and to “make available for public inspection and copying—“
(B) those statements of policy and interpretations which have been adopted by the agency and are not published in the Federal Register[.]
The MSPB’s determination contains no such requested interpretations or statements of policy, nor are they published in the Federal Register.
Finally, despite the MSPB’s official position the 2007 litigation cited above, MSPB Chairman Susan Tsui Grundmann stated the following in her October 2009 Senate confirmation hearing:
The Board’s statutory studies function is also a significant part of the agency’s responsibility. Study reports issued by the Merit Systems Protection Board are highly regarded in the Federal human resources management community and by the stakeholders of the Board. If confirmed, I plan to work with my fellow board members as well as the Office of Policy and Evaluation to continue this record of excellence. In particular, I pledge to report to the President and the Congress as to whether the public interest in a civil service free of prohibited personnel practices is adequately protected.
Requester respectfully submits to the MSPB that this appeal poses an opportunity to fulfill this pledge, by releasing any agency interpretations that interpret 5 U.S.C. § 1204(a)(3) so they may be evaluated by the public and challenged if contrary to Congress’ intent.
Alternatively, MSPB’s Determination Constitutes a Failure to Act
In the alternative, if such agency interpretations do not exist, then MSPB’s response constitutes a failure to act. The FOIA request requested documents responsive to the polar question posed by Congress the Civil Service Reform Act of 1978: “whether the public interest in a civil service free of prohibited personnel practices is being adequately protected.” Such a question, by its phrasing, requires a “yes” or “no” answer.
Anticipating that MSPB might answer this request by forwarding copies of its currently-available special studies, the request noted that it was “not request[ing] or refer[ing] to any currently publicly available special studies relating to the civil service and to other merit systems in the executive branch.” Such studies, including the two included in MSPB’s response, are not responsive and do not answer Congress’ polar question in 5 U.S.C. § 1204(a)(3). As such, assuming no responsive interpretations exist, the correct response should have been “no responsive records exist.”
Adequacy of Search
Finally, the MSPB’s determination noted that “we have conducted a thorough search of our records and found records that are responsive to your request.” However, an open question exists as to whether such a search included the Office of General Counsel, or any other office that might contain a legal interpretation referred to above.
Appendix A: FOIA Request No. 2011-12-002, dated December 6, 2011
Appendix B: MSPB Determination to FOIA Request No. 2011-12-002, dated December 9, 2011
Appendix C: Complaint or Petition for Writ of Mandamus, Joseph Carson v. U.S. Merit Systems Protection Board, Case 1:07-cv-00445-PLF (D.D.C. 2007)
Appendix D: Exhibits to Appendix C
Appendix E: Respondent’s Response to Show Cause Order and Motion to Dismiss Petition for Writ of Mandamus, Carson v. MSPB, Case 1:07-cv-00445-PLF (D.D.C. 2007)
Appendix F: Carson v. MSPB, 2008 WL 441509 (D.D.C. Feb. 19, 2008)
Appendix G: U.S. Senate Committee on Homeland Security and Governmental Affairs Hearing on the Confirmation On the Nomination of Susan Tsui Grundmann to be a Member and Chairman of the U. S. Merit Systems Protection Board, Statement for the Record (Oct. 20, 2009)
 Attached as Appendix B.  Attached as Appendix A. This request was made pursuant to 5 U.S.C. § 552(a)(4)(A)(ii)(II) and 5 C.F.R. § 1204.12(8), as a representative of the news media. The request and all related documents are, or will be, made available at www.mspbwatch.net, an accountability blog maintained by requester that is “intended to ensure that MSPB, the U.S. Merit Systems Protection Board, adheres to its mission of ‘protect[ing] Federal merit systems and the rights of individuals within those systems.’”  The omitted portion is as follows:
This request does not request or refer to any currently publicly available special studies relating to the civil service and to other merit systems in the executive branch.
 I contend that such reports constitute “currently publicly available special studies relating to the civil service and to other merit systems in the executive branch,” as required under 5 U.S.C. § 1204(a)(3). They are also available at http://www.mspb.gov/studies/index.htm.  See 5 C.F.R. § 1204.21(a)(2). Alternatively, if no responsive interpretations exist, the correct determination should have been “no responsive records exist” – see page 5 below.  See Complaint or Petition for Writ of Mandamus, Joseph Carson v. U.S. Merit Systems Protection Board, Case 1:07-cv-00445-PLF (D.D.C. 2007), attached as Appendix C with exhibits as Appendix D.  Respondent’s Response to Show Cause Order and Motion to Dismiss Petition for Writ of Mandamus, Carson v. MSPB, Case 1:07-cv-00445-PLF (D.D.C. 2007), attached as Appendix E.  See id.  Unfortunately, the court did not consider the merits of this question as it found that it did not have jurisdiction to issue the writ of mandamus. Carson v. MSPB, 2008 WL 441509 (D.D.C. Feb. 19, 2008), attached as Appendix F. Carson told requester that three other courts have reached the same conclusion.  See 5 U.S.C. § 551 et seq.  See 5 U.S.C. § 553(b).  See 5 U.S.C. § 552(a)(1)(D).  See 5 U.S.C. § 552(a)(2)(B).  U.S. Senate Committee on Homeland Security and Governmental Affairs Hearing on the Confirmation On the Nomination of Susan Tsui Grundmann to be a Member and Chairman of the U. S. Merit Systems Protection Board, Statement for the Record (Oct. 20, 2009), attached as Appendix G (emphasis added).  See 5 C.F.R. § 1204(a).  October 13, 1978, Pub.L. 95-454, 92 Stat. 1111.  Currently codified in 5 U.S.C. § 1204(a)(3).  Also known as a “polar question.”  The two studies included in MSPB’s determination are symptomatic of the problem giving rise to the FOIA request: MSPB comes close to saying “no, the public interest is not adequately protected,” but it has never done so. Requester, and the public at large, are entitled to an answer to the specific question posed by Congress.
A review of these studies is instructive:
Prohibited Personnel Practices – A Study Retrospective (June 2010):
“MSPB has conducted extensive research to examine the occurrenceof prohibited personnel practices in the Federal Government, as well as adherence to their complement, the merit system principles. . . . [T]he Federal Government still has work to do to ensure a workplace free of prohibited personnel practices.” (Cover letter page);
“One of the statutory missions of the U. S. Merit Systems Protection Board (MSPB) is to study Federal merit systems to determine if the Federal workforce is being managed in adherence with the merit system principles and is free from prohibited personnel practices (PPPs).” (Page 1);
“Over the past 30 years, MSPB has conducted extensive research to examine the occurrence of prohibited personnel practices in the Federal Government, as well as adherence to their complement, the merit system principles.” (Page 2);
“For fiscal year 2010, MSPB is launching a multi-pronged research effort to examine the prevalence of prohibited personnel practices in the Federal Government.” (Page 2);
“Nevertheless, the ideals of a fully representative workforce and fair treatment of all employees have notbeen wholly realized. Although a statistical analysis of the Federal workforce confirms that diversity has increased, that analysis also shows that progress has been uneven.” (Page 6);
“[W]ork remains to be done in creating a workplace where employees can raise concerns about organizational priorities, work processes, and personnel policies and decisions without fear of retaliation, and where managers can respond to such concerns openly and constructively.” (Page 16);
“These trends are good news, though in that report we acknowledge that the Federal Government still haswork to do to ensure a workplace free of prohibited personnel practices. Employees continue to express concerns about how agencies fill jobs and distribute awards. While the trust between employees and supervisors has improved over time, it remains an area to be strengthened.” (Page 25) (emphasis added).
“The purpose of this report is to discuss the extent to which Federal employees perceive that PPPs are occurring and to educate readers on the meaning and importance of the PPPs.” (Page iii);
“PPPs in the Federal Government are serious, but they also appear to be increasingly uncommon.” (Page iii);
“The primary purpose of this reportis to provide Congress and the President with important informationabout the health of the Federal merit systems—in this case, the declining rate of perceptions that a PPP has been committed in the Federal service.” (Page 1) (emphasis added).
Back in August, a suit was filed (with exhibits) by [8-time prevailing whistleblower and federal nuclear safety engineer] Joe Carson against MSPB in federal district court, over MSPB’s refusal to comply with a FOIA request. In his request, reprinted below, Carson raises worthy questions regarding the ethical duties of the MSPB chair, currently occupied by Susan Tsui Grundmann. Take a look.
Freedom of Information Act (FOIA) REQUEST
May 28, 2011
Mr. Bernard Parker, FOIA Officer
U.S. Merit Systems Protection Board
1615 M Street NW
Washington, DC 20419
fax at (202) 653-7130 <FOIAHQ@mspb.gov> <www.mspb.gov>
Subject: New FOIA request based on Chairman Grundmann’s May 24, 2011 denial of my FOIA appeal in FOIA no. CB11-171
Dear Mr. Parker,
As MSPB leadership knows, I contend there is a 32 year-long “broken covenant” by Civil Service Reform Act of 1978 (CSRA). I contend that the government (i.e. Courts, Congress, the Government Accountability Office (GAO), the President, the Office of Special Counsel (OSC), the Merit Systems Protection Board (MSPB), and agency heads) have failed to ensure federal employees are adequately protected from reprisal and other types of prohibited personnel practices (PPPs) as they do their duties in a trustworthy fashion, per the merit system principles - the fundamental objective of the CSRA.
My contentions are detailed at <www.broken-covenant.org>. I contend that thousands of loyal patriotic federal employees, foolhardy enough to put duty to the Constitution and the common good before their personal economies were unlawfully betrayed for doing so since 1979. I contend America is much diminished and more threatened as a result. Furthermore, I contend that if my concerns are substantiated at the Office of Legal Counsel of the Department of Justice, it is GOOD NEWS for America in that: 1) a previously unidentified significant causal factor to much which has befallen and besets America has been exposed, and 2) it can readily be corrected.
If my contentions are substantiated, then the Merit Systems Protection Board – the 3 person Board – for past 32 years, its lawyer members and the lawyers in its Office of General Counsel and Office of Policy are, in my opinion, most responsible. Only MSPB has the positive, nondiscretionary, statutory duty to conduct oversight, via its special studies function at 5 U.S.C. section 1204(a)(3), of the Office of Special Counsel’s interpretation of and compliance with its nondiscretionary statutory duties to protect federal employees from PPPs, most specifically its duty to report its determinations of PPPs at 5 U.S.C. section 1214(e), and agency heads interpretation of and compliance with their nondiscretionary statutory duties to prevent PPPs, per 5 U.S.C. section 2302(c).
I am a licensed professional engineer (PE) employed in the Department of Energy as a nuclear safety engineer. I was so foolhardy as to put my positive legal and professional duty to be a “mandated reporter,” when necessary, to protect others related to my professional duties for their health and safety, regardless of possible job/career retribution. PE’s are “mandated reporters” in such circumstances, I acted consistent with that duty. My actions played a positive, perhaps significant, role in the passage of the Energy Employees Occupational Illness Compensation Program Act (EEOICPA) of 2000, by which over 65,000 diseased, disabled, or prematurely deceased Department of Energy contractor workers (or their survivors) have received over 7 billion dollars in compensation. So, as I now see it, I have done my positive legal and professional duty, as great personal and professional cost, as a licensed professional employed by a government agency because other licensed professionals employed by a government agency – attorneys who served on the 3 person Board during past 32 years – betrayed their duty to enforce the laws entrusted to them, particularly section 1204(a)(3).
Why has this gone on for 32 years? As I understand Chairman Grundmann’s reasoning in denying my FOIA appeal, she is really not the Chair of MSPB, with a positive legal duty to ensure MSPB is properly interpreting and complying with its non-adjudicatory statutory duties to protect the Merit Systems in the Executive Branch from PPPs – and to “blow whistles” as a “mandated reporter,” if it is not. Instead, she has an attorney-client relationship MSPB, her government employer. Because MSPB is her client, she must as a licensed attorney – what she was before becoming Chair of MSPB and what she will continue to be when her term at MSPB ends – hold paramount MSPB’s interests – not those of the federal civil service when the two come into conflict. Therefore she is a “mandated NON-reporter” about MSPB’s failures or possible failures to properly interpret and comply with its nondiscretionary duties regarding conducting special studies and oversight of Office of Personnel Management regulations.
Additionally, Ms. Grundmann has a background as a lawyer employed by federal employee unions, so she had an attorney-client relationship with them. In my opinion, federal employee unions have devolved to become low-level protection rackets, which use fear of PPPs to sell union memberships at about $400 -$500/year to federal employees. Federal employee unions, in my close observation and experience, benefit from the “broken covenant” of the Civil Service Reform Act of 1978 – they do NOT want federal employees to be adequately protected from PPPs by agency heads and OSC, because if they were, then they would be even less likely to voluntarily pay union dues. Federal employee unions want status quo – “OSC is the last place an employee alleging a PPP should go” – to continue because it helps sell union memberships.
In fact, federal employee unions were the chief advocate of a 1994 law that put severe restrictions on federal employees represented by federal employee unions (i.e. their members and prospective members, only about 20% of federal employees represented by federal employee unions actually pay their dues), seeking protection from PPPs at OSC, per 5 U.S.C. section 7121(g). They did this to make their remedy for PPPs – binding arbitration – more exclusive. Why? To help sell union memberships, to pay the exorbitant salaries of their officers and their employed attorneys.
So, federal employee unions and their lawyers want and benefit from a broken, lawbreaking fraud of federal law enforcement agency at OSC – one that is “the last place a federal employee alleging a PPP should go,” and lawbreaking enabler of OSC’s fraud at MSPB.
To clarify my understanding of Ms. Grundmann’s ethical obligations as a licensed attorney who is Chair of MSPB and who was previously employed by Federal employee unions, I submit a FOIA request for any responsive records for the following:
-Any records relevant to Ms. Grundmann’s duties to be a “mandated reporter” as a lawyer who is the Chairman of MSPB, a federal agency, if she determines there is reasonable cause to believe MSPB has misinterpreted and/or misapplied its nondiscretionary duties regarding its special studies function at 5 U.S.C. sections 1204(a)(3) and (e)(3) for past 32 years.
-Any records relevant to Ms. Grundmann’s duties to be a “mandated NON-reporter” as a lawyer who is the Chairman of MSPB, a federal agency, if she determines there is reasonable cause to believe MSPB has misinterpreted and/or misapplied its nondiscretionary duties regarding its special studies function at 5 U.S.C. sections 1204(a)(3) and (e)(3) for past 32 years.
-Any records relevant to Ms. Grundmann’s duties to be a “mandated reporter” as a lawyer who is the Chairman of MSPB, a federal agency, if she determines there is reasonable cause to believe MSPB has misinterpreted and/or misapplied its nondiscretionary duties regarding its oversight function of the Office of Personnel Management at 5 U.S.C. section 1204(a)(4) and (f) for past 32 years.
-Any records relevant to Ms. Grundmann’s duties to be a “mandated NON-reporter” as a lawyer who is the Chairman of MSPB, a federal agency, if she determines there is reasonable cause to believe MSPB has misinterpreted and/or misapplied its nondiscretionary duties regarding its oversight function of the Office of Personnel Management at 5 U.S.C. section 1204(a)(4) and (f) for past 32 years.
-Any records relevant to Ms. Grundmann’s duties to be a “mandated NON-reporter” as a lawyer who is the Chairman MSPB if she determines there is reasonable cause to believe MSPB has misinterpreted and/or misapplied its duties regarding its oversight function of the Office of Personnel Management at 5 U.S.C. section 1204(a)(4) and (f) for past 32 years, because she was previously employed by federal employee unions, which possibly benefitted from the government lawbreaking, because fear of PPPs helps sell union memberships.
-Any records relevant to Ms. Grundmann’s duties to be a “mandated NON-reporter” as a lawyer who is the Chairman MSPB if she determines there is reasonable cause to believe MSPB has misinterpreted and/or misapplied its duties regarding its special studies function at 5 U.S.C. sections 1204(a)(3) and (e)(3) for past 32 years, because she was previously employed by federal employee unions, who benefitted from the government lawbreaking, because a broken, lawbreaking fraud of an OSC – “the last place a government employee alleging a PPP should go” – and a lawbreaking MSPB that enables it, helps sell federal employee union memberships.
-Any records related to any evaluation MSPB has conducted of its interpretation of and compliance with its non-discretionary statutory duties at 5 U.S.C. sections 1204(a)(3), (a)(4), (e)(3) and/or (f).
-Any records related to any consideration MSPB has made of telling the President, Congress or anyone else that its interpretations of and compliance with 5 U.S.C. sections 1204(a)(3), (a)(4), (e)(3) and/or (f) during past 32 years is suspect.
-Any records related to any consideration MSPB has made of seeking interpretations from the Office of Legal Counsel of the Department of Justice of its interpretations of 5 U.S.C. sections 1204(a)(3), (a)(4), (e)(3) and/or (f) during past 32 years.
-Any records related to MSPB’s compliance with its nondiscretionary statutory duty to conduct reviews of OPM rules and regulations for possible PPP’s, per 5 U.S.C. sections 1204(a)(4) and/or (f)(1)(A), on its own motion.
-Any records of any written complaints received from the Office of Special Counsel (OSC), requesting such a review, per section 1204(f)(1)(c),
-Any records of any “special studies” conducted by MSPB, per sections 1204(a)(3) and (e)(3), that considered MSPB’s and OSC’s compliance with their positive, nondiscretionary, statutory duties to proactively review any OPM rule or regulation for possible PPP’s.
Reflections from Obama Administration Whistleblower Appointments
September 19, 2011, Washington, D.C.
Moderator: Bea Edwards, Government Accountability Project Executive Director
Paul Igasaki, Administrative Review Board; Carolyn Lerner, Office of Special Counsel; Susan Tsui Grundmann, Merit Systems Protection Board
Bea Edwards: Okay, we’re ready to begin the first session of the afternoon, thanks everybody for being here. This is my first national whistleblower assembly as Executive Director of GAP. I’m Bea Edwards. I became the Executive Director when the previous director left to join the Office of Special Counsel with our first speaker, Carolyn Lerner.
I’d just like to say a few things as we begin. One of the speakers this morning, Tony Schaffer, spoke about the idea that in Washington, the truth is negotiable. And that is a very chilling idea. And it is a chilling idea because, if you think about it, if the truth is negotiable, then what happens when the negotiations end? What happens is that there is an official truth, which becomes an unquestionable kind of doctrine. And that happens in governments, it can happen. We know, those of us in this community know, that whistleblowers are a very effective way to challenge official truths. Those of us who are a little bit older will remember that it used to be called The Big Lie. That was the phrase during the Cold War, the idea that if you said something often enough, loudly enough, in enough places, it became accepted as the truth, even if it bore no relationship to the facts. And so there’s a long history and tradition of playing fast and loose with the truth. But whistleblowers challenge official truths and they are one of our most effective challenges.
The people who spoke this morning I think made it clear that whistleblowing is dangerous business and that we need, not only the laws that protect those whistleblowers but also the enforcement of those laws. And that brings us to our panel this afternoon because speaking with us this afternoon are those officials here in Washington who are helping to establish credibility and effectiveness in the organizations and agencies that do enforce whistleblower laws.
Our first speaker is Carolyn Lerner. She is the Special Counsel at the Office of Special Counsel. She has been a lifelong civil rights attorney and a specialist at alternative dispute resolution. She is now dedicated to establishing the credibility of the Office of Special Counsel. It is my pleasure to introduce her.
Carolyn Lerner: Thank you. Thank you very much Bea. Thank you for including me on your program here today. I’m delighted to be here. And I’m honored to be on this panel with Susan Grundmann and Paul Igasaki. Saturday will be my 100th day as Special Counsel. And, as expected, there is much to be done and a lot to learn. And I know this audience in particular wants to help get me educated. I’m really glad to be here today.
It’s no secret that the Office of Special Counsel has been through some tough times. I expect that many of you who are here have some doubts about whether things will be any different with new leadership. So, in my brief remarks today, I want to tell you a little bit about my background, the perspective that I bring to the Office of Special Counsel, and then I’m going to share with you some of the actions that we’ve taken already and goals for my term.
Before I was appointed by President Obama, I was, as Bea mentioned, an employment lawyer for twenty years. The last fourteen of which I was a partner at the law firm that I helped to found, Heller, Huron, Chertkof & Salzman. The firm primarily represents individuals, both federal workers and private sector employees, in employment discrimination and civil rights cases. Before leaving my firm, one of my most recent and satisfying cases involved a translator for the Voice of America, the overseas U.S. radio station that the U.S. government runs. The translator was also part of a rock group that made a music video opposing the Iraq war. For this, she was fired. We took the case to court, alleging First Amendment violations against the government. And, as many of you probably know, cases against the government are tough. Indeed, in our case, the government challenged our right to be in court and tried to get the case dismissed using qualified immunity as their defense. But after years of litigation, the U.S. District Court, and then the D.C. Circuit Court of Appeals, ruled in our favor.
Through working on these types of cases, I am well aware of the effect that government actions can have on individuals. And I’m familiar with the frustrations and limits of litigation. Perhaps, as a result, I’ve developed a strong interest in alternative dispute resolution. I’ve taught mediation at George Washington University Law School, I’ve been a mediator for the U.S. District Court and the EEOC, and as an advocate, I’ve use mediation frequently when I represented private individuals. It is this problem solving approach that I bring to the Office of Special Counsel.
Before talking about my goals for the agency, I want to introduce my team that will help me implement these goals. I asked a number of people who are well-known to this community to come join me and the agency and I’m thrilled that they agreed. I want to introduce our Deputy Director, Mark Cohen. Mark, would you stand?
Mark, as Bea mentioned, was the Executive Director at GAP before he came to the OSC. Jason Zuckerman, would you stand?
Jason is our senior legal counsel. He was a partner at the law firm of – it’s called the Employment Law Group. He is a well-known expert in whistleblower law. And finally, our Director of Policy and Congressional Affairs, Adam Miles. Adam, would you stand?
Adam worked at GAP before he went to the House Oversight Committee. He was also instrumental as many of you may know in drafting the Whistleblower Protection Enhancement Act. I am just delighted that Mark, Jason, and Adam are with me.
In our first three months at the agency, and it really has only been three months, Mark, Jason, and I have been spending a lot of time listening to both the dedicated career staff at the agency and meeting with a wide range of stakeholders. We’ve heard some terrific suggestions and we’re already taking some concrete steps to implement many of them.
I want to share with you some of our priorities. As you know, the agency has several important roles, but it has always had a special mandate to protect government whistleblowers. And at a time when our country is in a fiscal crisis, this role has never been more important. There is no question that government workers are in the best position to waste, fraud, and unsafe practices.
We recently took a look at our disclosure cases, and over the past two years alone, we calculated that whistleblowers who had come to our agency had saved the government about $8 million dollars. This 8 million doesn’t even include the savings from disclosures about potential threats to lives, health, and safety that could have resulted in catastrophic losses of lives and money, but for the disclosures. And though these employees perform an important service, studies have shown that about 80% of whistleblowers in the private sector regretted having come forward because of the negative consequences that they’ve suffered. This is also consistent with the experience that we’ve had at the Office of Special Counsel, where about 80% of our whistleblowers also expressed some concerns about retaliation after having come forward.
Creating an environment within government where open dialogue about problems is accepted an indeed encouraged is one of my primary goals as Special Counsel. And though it’s only been three months, I think we’re already making a bit of a change. We’ve already increased the number of OSC employees who work on whistleblower reprisal complaints. This week, in fact, we’re starting the retaliation pilot project at the agency that’s going to focus exclusively on retaliation cases. Several attorneys in this project are being detailed from other units at the agency. This commitment of additional resources should reduce the backlog and get relief to whistleblowers more quickly.
We must also do a better job communicating. People who come to our agency should that they have had a full and fair opportunity to be heard. To that end, we’re working with our Complaints Examining Unit to communicate more with complainants at the start of the process, and when a case is referred to the Investigation and Prosecution Division for investigation, we will contact complainants early on in the process and ask for suggestions.
Having represented employees, I know how frustrating it is to have to wait for an agency to complete its investigation. Especially when an employee is out of work or suffering ongoing retaliation or harassment. One action that we can take is to exercise our authority to seek stays from the MSPB. Indeed, one of my first acts as Special Counsels was to obtain a stay in the firing of a whistleblower, so we would have an opportunity to investigate the matter before the agency took action against the employee.
I also know from experience about the benefits of early mediation. I strongly believe that mediation can help both complainants and agencies obtain quicker and better results. This will also benefit the OSC. Having cases settle will allow us to use our very limited resources to investigate and litigate other cases. So, I’m working to expand our capacity and capability to mediate more cases so we can offer this as an option to more complainants at the beginning of an investigation.
We’re also taking action to make the OSC more accessible. Thirty years after it was created, many federal employees are still unaware of this agency. I was amazed when I was nominated into this position how many people would ask me, “What is the OSC?” They also wanted to ask me “Why are you interested in taking this job?” but that’s another story. I am determined to improve our outreach to federal employees and to make the agency more accessible and well-known.
One concrete step that we will take is revamping our website. We want to improve it to make it a better resource for federal employees both about their rights and to make filing a complaint easier. Recently, both GAP and POGO, very generously, provided helpful recommendations for improvements to the website. We’re grateful for their work on this and we hope to implement many of their suggestions.
In closing, I want to reiterate to you: my mission at OSC is to make this public service agency as robust and vibrant as it can be. We will listen, we will be timely, and we will resolve cases with justice. But there is a lot to do, and we know we can’t do it alone. So I’m asking you of some things, too. Please work with us: share your thoughts and ideas for how we can move the agency forward together. And, finally, please be patient. All of this is going to take some time.
Finally, thank you for what you do, and what you’ve done to advance the same, larger cause. I look forward to working with all of you.
Bea Edwards: And our second speaker will be Susan Grundmann, she is the chair of the Merit Systems Protection Board. Civil liberties and labor rights attorney also. She’s also served as general counsel for the National Federation of Federal Employees. Under Chairman Grundmann, MSPB provided justice for Teresa Chambers, who is a very important member of our community. Ms. Grundmann.
Susan Grundmann: Thank you Bea and Tom Devine and GAP for this gracious opportunity to meet with you and speak with you about our mission and our values, our goals and our challenges.
So let’s talk a little bit about MSPB and some changes. Our focus as you’ve seen is probably a little different than the last board. Whereas prior to 2009, the focus had been on national security, and as a result, processing cases much faster, particularly through legislative reforms at DoD and DHS.
Now this board has viewed things a little bit differently. And we view that it is time to return back to basics and refocusing upon those principles upon which we were founded under the Civil Service Reform Act, and of course, they are the merit principles, they are the nine rules that are the foundation of federal employment. They are what makes civil service civil. Including, in particular, protection for reprisal for whistleblowing. And this principle is important for a number of reasons. Because it is key, as Carolyn mentioned, to good government. Preventing fraud, waste, and abuse, preventing violations of law, rule and regulation, protecting individuals from a significant and substantial danger to their health and well-being.
So we have, first of all, recommitted to these principles in our strategic plan, and our strategic plan is not just to protect the merit principles but to promote a workforce that is free of prohibited personnel practices, including protection from reprisal for whistleblowing.
Now this plan was developed in conjunction with my stakeholders, one of which is GAP, and has consistently been a great voice in this community.
We recommit to these principles daily, through our adjudication functions, our statutory functions. The first being that we’ve issued a number of precedential decisions ordering corrective action for whistleblowers and remanded cases back for full merits hearing to the AJs. In fact, we’ve issued one last week, King v. Army.
In our second statutory mission, which is to issue reports to the President and the Congress on the health and well-being of the civil service, at the end of last year we’ve issued a whistleblower report wherein we noted that Congress has continually attempted to address these issues and we urged Congress to be aware of the difficulties that a potential whistleblower would encounter when navigating this particularly difficult area of the law.
Now coming up this year we will be issuing an additional report which, internally, we refer to as whistleblower Number Two and it highlights a series of best practices that agencies should follow in building an environment where federal employees can come forward without fear of reprisal.
Finally, we refocused, not just on prevention, but promotion, through education, of the meaning and the value and the spirit of these principles. As some of you may know, we feature a merit principle every month on our website. This month, coincidentally, it is protection from reprisal for whistleblowing. [inaudible]
We also, like Carolyn said, embarked on a series of aggressive outreach, not just to employee groups and union groups who understand these types of issues but to management groups and to good government folks and to affinity groups to educate them as well.
Finally, with the advent of social media, we Tweet these principles repeatedly throughout the year. And we’ve added a new gadget if you will — we have a new mobile app which will allow you to download our cases, our studies, and our other public media wherever you go.
[inaudible] the power of training in education. But we do our limitations. And first in the area of adjudication. We are enforcing the law. We are not writing the law. We are bound by the Whistleblower Protection Act and its letter. And we’re also bound by our case precedent from our reviewing court, that being the Federal Circuit, the key case being Hoffman v. OPM. And let me give a shout out to my guy here, this is Jim Issman, he is our general counsel. He argued Hoffman vs. OPM. He argued on behalf of Hoffman.
But let me mention what Hoffman means. It brings to light some of the limitations of the Whistleblower Protection Act, primarily two of them: that disclosures are not protected if they’re made within an employee’s chain of command, which is the natural place that an employee would go to with an experienced wrongdoing. You go to your supervisor first. The other area that’s highlighted by this case is that disclosures are not protected if they are made within the employee’s scope of duties, which is, again, the natural environment that employees would be exposed to wrongdoing. Now this is different than Chief Judge Igasaki’s area of the law, so he’s got some other protections that the Whistleblower Protection Act does not [inaudible].
The second area is that our, well while we can educate and promote these narrow principles, we don’t have the authority unilaterally to change policy, nor do we have the authority unilaterally to change culture, which leads me to this upcoming report, which will urge agencies to create a culture whereby disclosure of wrongdoing is not okay, but is actually going to be encouraged.
Now this report finds that the fear of reprisal and actual reprisal is still there at the same percentage as it was in 1992, which is a little bit daunting, because if you think about it, back in 1992 there was no No FEAR Act yet. So even in the wake of the No FEAR Act, people are still experiencing these same types of issues.
So, what we’re going to urge first and foremost is that agencies assure their workforce that management will not be requiring absolute proof of wrongdoing. That a mere reasonable suspicion is going to be enough. Even minor wrongdoing, this is a quote from the report, is still wrongdoing.
When individuals bring potential wrongdoing to management’s attention, we urge agencies to give that report serious consideration, including referring that report to an impartial individual or office if necessary, like the IG. And even after investigation, if the charges are not verified, management should tell the employee that the investigation was taken seriously and that individual did right by coming forward. So this is a lot to look forward to in this report. I commend it to you, it’ll be out around Halloween, no timing, the timing is not suspect here, but I leave it to you to embrace and I encourage you to take it forward to support your position. Thank you very much.
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