Tom Devine of the Government Accountability Project has an unfortunate habit of being loose with the facts and revising history. It happens in private, but more problematically it also happens in public, where public records contradict his past statements (including, oddly enough, an article from just last month. More on this below).

Election of Remedies

Here’s one example, in the context of objecting to a proposed MSPB rule that would limit whistleblowers’ rights. (I wrote about that rule here, here, and here).

This is an excerpt from Devine’s rulemaking comment about the election of remedies issue found in 5 U.S.C. 7121(g)(3):

In proposed sections 1201.21(d) and 1209.2(c) and (d), the Board would strip agencies of the burden to prove the merits of its charges against employees who file Individual Rights of Action (“IRA’s) or the reasonableness of its penalty, including whether termination or another personnel action “will promote the efficiency of the service.” The Board’s rationale is that the changes are necessary to comply with 1994 amendments to the Whistleblower Protection Act (“WPA”) requiring employees to make a choice of forum. Those amendments are codified in 5 USC 7121(g)(3). Unless modified, this regulation could force employees to choose between their rights under the WPA, or their rights under the rest of the Civil Service Reform Act. There is no sound basis in policy or law to force that choice, which in terms of damage to the merit system would far outweigh the nuts and bolts benefits in the proposed regulations.

In overview, the Board’s job is to protect the merit system. While it is necessary to comply with statutory requirements, the Board should not engage in any nondiscretionary actions that shrinks the scope of the merit system. That is what has happened here.

First, the provision in the 1994 amendments was meant only to apply to employees in collective bargaining agreements. (“CBA’s”) It provides no authority to shrink the rights of others not covered by CBA’s. Nor is there any policy basis to strip OSC complainants of civil service merit system rights that govern all other Board proceedings. The choice of forum provision was enacted to prevent duplicative, parallel due process proceedings conducted by the Board (either through a direct appeal or OSC-based complaint), at the same time as a labor management conducted by the Federal Labor Relations Board through its arbitrators. There is not a word of legislative history, or any record at all, that it was intended to require inconsistent standards for employees who start with the OSC, compared to starting with the Board. Nor is there any record basis that the amendments force the Board to discard the efficiency of the service standard or create an exception to the overriding requirement of 5 USC 7701(c)(1) that an agency must prove performance-based charges with substantial evidence, and misconduct based adverse action by a preponderance of the evidence.

Indeed, the Board does not have that authority. Prohibited personnel practices are an additive basis to reject an agency action [“notwithstanding paragraph (1)”], not substitutive. Congress has not created an “WPA OSC” exception to section 7701(c)(1), and the Board cannot do so on its own.

If the Board feels compelled to adjust regulations for the 1994 amendments, it should act in a way that minimizes dilution of the merit system. To the maximum extent possible, restructuring hearing procedures should not affect overall agency burdens. To illustrate, if an agency cannot prove the merits of its charges, that factor combined with protected activity and knowledge should satisfy the nexus element for a prima facie case of retaliation as a matter of law. As a matter of law, it also should defeat the agency’s clear and convincing evidence defense of independent justification, based solely on the strength of evidence criterion to assess the agency defense.

Similarly, there is no authority in law to remove an employee for reasons that do not promote the efficiency of the service. Correspondingly, the final regulation should specify that as a matter of law if there is protected activity and knowledge, a personnel action that does not promote the efficiency of the service establishes compliance with the nexus element for a prima facie case of retaliation, and as a matter of law defeats the clear and convincing evidence defense based solely on failure to meet the discriminatory treatment criterion.

In short, it is unnecessary to overturn longstanding Board case law and doctrines of jurisprudence, merely for compliance with a 1994 WPA amendment passed to avoid duplication between arbitrations, and OSC or Board rulings or hearings. If the Board feels compelled, however, to act within the law it must make corresponding adjustments so that it does not arbitrarily force employees pursuing their WPA rights through to Special Counsel to sacrifice the most basic rights of the civil service system. [Emphasis added.]

Here’s the relevant portion from AFGE’s comment:

AFGE opposes the Board’s proposal to limit the issues before the Board when an appellant chooses to pursue an Individual Right of Action appeal. The proposed rule is an overly harsh rule that, as the Board admits, reverses longstanding Board law. It also leaves an appellant with no way to keep a case whole when the appellant chooses to pursue a claim with the Special Counsel. This makes no sense and, AFGE believes, is contrary to the statute. Nothing in 5 U.S.C. 7121(g) requires this result, and the Board’s rule will subvert the will of Congress by discouraging employees from seeking the assistance of the Special Counsel. The Board should not make this change. [Emphasis added.]

Union Protectionism

These two comments are rebutted by the legislative history of H.R. 2970, a 1994 law that amended the Whistleblower Protection Act of 1989 (and by extension the Civil Service Reform Act of 1978) to “further protect Federal employees who report misconduct from reprisal for that action.” In reality, though, Congress added the election of remedies provision to serve the interests of two unions (AFGE and NTEU) at the expense of the Office of Special Counsel, and by extension at the expense of federal employees.

At the time it was supposedly no big deal, because OSC was a trap for the unwary and advocates sought its abolition. So a couple of unions kneecapping OSC to divert union or future union litigants away from them (and thus ensure their sustainability by being the only viable option for employees under duress) was understandable.

Tom Devine, also at the time, made a couple of comments to preserve OSC’s viability but did not raise further concerns.

The provision passed but MSPB did not attempt to amend their regulations to reflect it until this year.

Here’s what Congress, the Special Counsel at the time, AFGE, NTEU, and Devine said about 5 U.S.C. 7121(g)(3), on September 14, 1993. Pay close attention to whether “the provision in the 1994 amendments was meant only to apply to employees in collective bargaining agreements,” as Devine now argues, or whether it was conceived to apply to all federal employees.

Rep. Pete McCloskey (page 2):

In addition, the bill would give Federal employees alternative venues to seek resolution of disputes that might arise in their case. This change will not only give employees who do not want to seek corrective action from OSC a choice of where to seek redress, but it should provide an incentive for OSC to improve its performance in the eyes of Congress and Federal employees. If the changes are enacted, and OSC continues to be perceived as hostile to complainants, Federal employees may stop seeking help there and OSC’s role in the context of whistleblower protection will cease to exist.

Kathleen Day Koch, then-Special Counsel (page 7):

As I state earlier, Mr. Chairman, I have not addressed those sectons of the bill that do not directly impact OSC. However, I do have a concern with Section 5(d) of the bill which would appear to diminish the protections currently available to whistleblowers. The bill as drafted would force whistleblowers to choose between coming to OSC and going directly to the board.

The bill would not allow whistleblowers to exercise the independent right of action they currently have which allows them to take their rcase before the board after coming to OSC. I believe that the current independent right of action provision which was added by the Whistleblower Protection Act is an effective measure for ensuring maximum consideration of whistleblower claims and should be maintained. [Emphasis added.]

Mark D. Roth, AFGE (pages 16-17):

AFGE views the alternative forum option offered by the bill as a direct acknowledgement that the OSC has failed to act in a timely and effective manner in too many of the situations brought before it, to the detriment of those the office is charged with helping. The beauty of this bill is that it simply allows individuals raising allegations of prohibitive personnel practices to obtain relief elsewhere.

This option is crucial where, as here, the avenue presently in place, namely the OSC, has proven itself unsympathetic or ineffective. I would stress that the bill neither allows multiple bites of the same apple nor does it abolish outright the OSC.

Again, this parallels in many ways the administration’s current reinvention effort which requires various centralized regulatory agencies, like the GSA, GPO, and OPM to, “compete.” Although many OSC customers have called for the sunsetting of that office, we 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.

…

We support many features of the bill. We just want to briefly mention two features that we think are extremely significant and that is, one, the bill’s express language guaranteeing that employees charging a prohibited personnel practice may utilize negotiated grievance procedures and two, the direct empowerment of arbitrators to order corrective action and stays from those practices and/or discipline in meritorious cases.

Grievance and arbitration is a proven mechanism. It allows for swifter and less costly resolution of prohibited personnel practices than either the courts or the OSC and MSPB can provide. Thus, the resulting law would allow for the swift correct of the practice and discipline of those who are found guilty of committing it. [Emphasis added.]

[Roth's written statement is also worth reading, on pages 18-19]

Tim Hannapel, NTEU (pages 20-21):

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. . .

To be fair to Hannapel, he focused his comments on union issues – the negotiated grievance process. When Rep. McCloskey asked Hannapel to clarify (page 24), Hannapel answered:

For people who are in a bargaining unit, rather than going to the Office of Special Counsel or to the MSPB, they would be required at the administrative level to use the grievance procedure.

McCloskey followed up on this issue with Tom Devine, whose statement did not mention the election of remedies issue:

[Rep. McCloskey, page 33:]  What about Mr. Hannapel’s comment a short time ago that for covered employees, perhaps those four options [OSC, MSPB, union, federal court] should for the time being exclude the MSPB and OSC initial coverage and focus on obviously encouraging the collective bargaining grievance process while still allowing the de novo right in the Federal Court?

[Tom Devine, pages 33-34:]  We think that his point is well taken, that the latter two options are the best routes for an employee to have a fighting chance of defending his or her career successfully. We favor the idea of managed competition, however, which doesn’t force an employee to go one route or the other, but maintains the option of choosing an alternative.

[McCloskey:] As you know, my bill has the four options basically, but should we restructure the process for the [union] covered employees, just have the two options to start with?

[Devine:] We think that the way the bill is drafted, by maximizing your choices, it also maximizes the chances that you will be able to defend yourself somehow.

McCloskey’s version and Devine’s response, minus the federal court option, is what was enacted in 5 U.S.C. 7121(g)(3). This exchange makes clear that Congress contemplated forcing employees to choose between OSC, MSPB, and a union, regardless of one’s union membership. Devine did not raise any consequence issues at the time.

The Art of Spinning

Devine is also now attempting to reframe the issue from one of Congress forcing employees to choose between a union, an MSPB direct appeal, and an OSC complaint, to one of Congress not having intended to “require inconsistent standards for employees who start with the OSC, compared to starting with the Board,” because if they didn’t mention it, they must not have meant it.

It’s a crafty argument, but ultimately it fails because the inconsistent standards issue is a consequence of forcing employees to choose between fora. Congress need not, and certainly does not, anticipate or speak about every foreseeable and unforeseeable consequence of their main policy choices. Moreover, they rely on subject matter experts to raise these issues for them. In this case, that would have been Devine himself, or the Special Counsel.

Notably, the Special Counsel at the time, Kathleen Day Koch, raised the issue of consequences when she said:

The bill would not allow whistleblowers to exercise the independent right of action they currently have which allows them to take their case before the board after coming to OSC. I believe that the current independent right of action provision which was added by the Whistleblower Protection Act is an effective measure for ensuring maximum consideration of whistleblower claims and should be maintained.

She may not have gotten it exactly right, but that’s the problem with predicting consequences.

By reframing the issue from one of Congress making broad, structural changes, to one of Congress neglecting to speak about one of several consequences of their broad decisions, Devine tries to cast doubt about the validity of the plain language of the law. He is trying to redefine reality.

All the other issues Devine mentioned (interaction with section 7701, efficiency of the service) are problems that arise when a rights-limiting provision is introduced into a rights-enhancing legislation; it’s going to be awkward, no matter what. That doesn’t mean the original decision to limit whistleblower rights wasn’t intended by the unions or Congress.

Prior Inconsistent Statement

Oddly enough, Devine’s comment is also contradicted by… Devine’s recent public statements. Here is what he told Bloomberg BNA in a June 12, 2012 article (subscription required, though available in full here) (full disclosure: I work at BNA, though not in the employment division. These are solely my own views):

Tom Devine, legal director at the Government Accountability Project, a Washington, D.C.-based nonprofit that represents federal whistleblowers before the board, told BNA June 7 that, with the exception of the change affecting federal whistleblowers, the MSPB proposed regulations are “stuffed with nuts and bolts changes that would make the board more user-friendly.”

Although the whistleblower provisions will make life more difficult for federal whistleblowers and their legal representatives, Devine said, “it’s difficult to criticize the board for conforming its regulations to clear statutory language, even after an 18-year delay.”

“The next step is obvious. When Congress reauthorizes spending for the Merit Systems Protection Board, it should modify the statute,” he said. “There is no excuse for whistleblowers who process claims through OSC to have second-class rights, but the problem is not with the proposed rule—it’s with how Congress wrote the 1994 law.” [Emphasis added.]

Final word: If Devine and AFGE truly feel that 5 C.F.R. 1209.2 is not in accordance with the law (assuming it’s enacted as proposed), they should file suit, challenge it under the Administrative Procedure Act, and let a federal judge look at all the facts and arguments. If that judge finds that 5 C.F.R. 1209.2 was mandated by 5 U.S.C. 7121(g)(3), or is a reasonable interpretation thereof, then I would imagine that Devine and others would seek a legislative change.

Or they could avoid getting exposed by a judge and seek legislative change directly.

Either way, will Devine and other responsible actors acknowledge their role in this fiasco? Based on his conduct, I wouldn’t bet on it.

Read more public comments here.

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.

Politifact takes a look. Tom Devine of the Government Accountability Project thinks so, but in the very next entry, dated June 9, 2009, Obama’s own DOJ staff casts doubt on the legislation.

Of course, the public’s view of the legislative process is probably more restricted than that of Devine, who’s not a stranger to the White House.

Sadly, this isn’t the first time that Devine has revealed a looser commitment to the truth.

Maybe someone should politifact Devine’s various prevarications.

Check out these articles and their comments:

http://pogoblog.typepad.com/pogo/2012/06/the-danger-of-hasty-anti-leak-legislation.html (pending moderation)

http://whistleblower.org/blog/42-2012/2055-lieberman-feeds-off-leak-hysteria-calls-for-de-facto-official-secrets-act#comments

Both make the same point: that no safe, legal channels exist for the disclosure of classified information. This is simply not true.

The Whistleblower Protection Enhancement Act would not create any such channels, because Section 119 of S. 743 would only modestly upgrade the Intelligence Community Whistleblower Protection Act of 1998 (which upgraded the Inspector General Act of 1978), but neither provided for confidential disclosure channels. And WPEA still would not.

Only the Civil Service Reform Act of 1978 did so, by creating and authorizing the Office of Special Counsel to receive classified information, and guaranteeing confidentiality.

But it’s not convenient for GAP and POGO to say that now, apparently (despite GAP acknowledging it in 2006, on page 5).

Let them know you expect good government groups to be honest with the public:

dbrian@pogo.org

beae@whistleblower.org

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.

(photo: caribbeanfreephoto/flickr)

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

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

Below the Fold: Read the rest of this entry →

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

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

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

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

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

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

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

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.)

Which leaves the good government groups who support MacLean – the Government Accountability Project and the Project on Government Oversight – as the only ones who can come through for him.

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.

At least in principle, he could have gone to the Office of Special Counsel. But he didn’t, and the decision to go to a newspaper reporter probably cost him his career, and almost his freedom.

Why didn’t he go to OSC?

Because he didn’t know that option existed. Neither did the attorneys he consulted with, or, really, most people in the whistleblower community. Neither did the pre-eminent whistleblower advocacy organization, Government Accountability Project, according to Drake.

But at least one person there knew, its Legal Director, Tom Devine. He recently stated that “everybody knows that Title 5 employees can make classified disclosures to OSC.”

But this simply isn’t true. Devine may have known, and did know, as early as 2006. (See page 5).

But his organization’s client, Thomas Drake, did not. And neither did another GAP client, Robert MacLean. And another GAP client, Mark Danielson, tried making classified disclosures to OSC in the 1990′s about stolen nuclear info, but OSC rebuffed him. While Devine was there, guiding Danielson through the labyrinthine whistleblower process.

Now OSC is saying that they have the means of accepting classified disclosures. We’ll see.

In case you’re wondering how this can happen, well, the quality of lawyering in the whistleblowing world is not that high (see Paul Igasaki’s comments in this video). Neither is the integrity of rule of law there.

We’ll see.

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?