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Public Sentiment Is Everything (Part II)

10:37 am in Uncategorized by MSPB Watch

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

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

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

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

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

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

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

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

Last Friday, the whistleblower community received the following message:

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

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

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

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

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

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

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

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

WORKING TOGETHER

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

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

Thank you,

MISC Steering Committee

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

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

Chief opponent of whistleblower rights in the House defends ICE whistleblowers

3:30 pm in Uncategorized by MSPB Watch

Representative Lamar Smith (R-Texas), Chairman of the House Judiciary Committee, has come out in support of 10 Immigration and Customs Enforcement agents who filed a lawsuit challenging the administration’s decision to grant temporary legal status to up to 1.7 million children of undocumented immigrants.

In a letter to Homeland Security Secretary Janet Napolitano, Smith asked Napolitano to “take steps to ensure” that the agents “do not suffer retaliation – employment-related or otherwise” for filing a federal lawsuit to overturn the administration policy, the Houston Chronicle reports.

“Such retaliation would have a chilling effect on future lawsuits brought by government employees who witness waste, fraud, abuse, mismanagement, illegality or dangers to health and public safety,” Smith warned in his letter.

“These agents should be considered `whistleblowers’ who came forward to protect the public’s interest and maintain integrity in government programs. They deserve protection from DHS efforts to stop this lawsuit and silence their voices.”

Smith’s letter comes at a crucial time: Congress is currently negotiating the details of the Whistleblower Protection Enhancement Act, which it failed to enact for the past thirteen years. Even more, the bill’s public interest lobbyists have described Smith as the main opponent of crucial, long-sought due process reforms for whistleblowers: the right to a jury trial and the ability to appeal one’s case away from the whistleblower-hostile Federal Circuit.

Moreover, Smith is campaigning on “border security” and “rule of law” – two values that would be greatly protected by a whistleblower bill with real teeth.

Perhaps now would be a good time to ask Smith why he opposes real due process rights for the very agents he is championing in his letter to DHS. Otherwise, it could not be said that the current version of the WPEA is by far the best protection federal employees will ever enjoy, could it?

Public advocacy saves whistleblowers from administrative minefield

3:48 pm in Uncategorized by MSPB Watch

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

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

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

“Congress heard you,” Devine said.

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

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

Kyl and Sessions are reneging on their promise.

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

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

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

How do we seek change?

Look to the summary judgment example.

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

Has Obama done “everything humanly possible” to pass the Whistleblower Protection Enhancement Act?

4:39 pm in Uncategorized by MSPB Watch

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.

Dissenters’ Digest for June 10-23

3:00 pm in Uncategorized by MSPB Watch

Stonewalled, Sen. Chuck Grassley (R-IA)

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

Contempt: A House committee voted to hold Attorney General Eric Holder in contempt for refusing to submit documents in connection with the Fast and Furious gunwalking scandal. President Obama invoked executive privilege, for the first time, to shield the documents from Congress. The measure may soon be presented to the House for a final vote. Meanwhile, Democrats are decrying the move as a political “witch hunt.”

Stonewalled: Senator Chuck Grassley is getting stonewalled by the Food and Drug Administration over an inquiry that it’s been spying on federal whistleblowers. The Senate and related House investigations were sparked by a lawsuit filed by six FDA whistleblowers who were allegedly targeted for surveillance. The National Whistleblowers Center is representing them in court. Relatedly, the Office of Special Counsel, which is also investigating the FDA over the same matter, released a memo this week to the federal government, urging agencies not to spy on whistleblowers. Doing so, the memo said, might lead OSC to conclude that retaliation is afoot.

Looking Backwards: President George W. Bush ignored a number of the CIA’s pre-9/11 warnings, according to new FOIA documents declassified and revealed this week.

Cover-Up: An Army Lt. General is accused of blocking a corruption probe in Afghanistan to help President Obama’s re-election.

Below the Fold:
Read the rest of this entry →

GAP and POGO are peddling misinformation about the disclosure of classified information and the WPEA. Why?

9:17 am in Uncategorized by MSPB Watch

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

Public Sentiment Is Everything

8:59 am in Uncategorized by MSPB Watch

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

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

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

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

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

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

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

 

Dissenters’ Digest for May 20-June 9

4:00 pm in Uncategorized by MSPB Watch

(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 →

Veal Pen Watch: Why the MISC Steering Committee is the wrong group to represent whistleblowers in Congress

6:40 pm in Uncategorized by MSPB Watch

The bottom line is that groups like POGO, ACLU, AFGE, and UCS have other business in Congress and cannot risk exposing/cajoling/strong-arming politicians on whistleblower issues. This is why I was asked to help kick-start a grassroots lobbying campaign, to give cover to GAP and MISC to get better protections. Except, when it really counted, GAP caved to the other groups’ reticence to do anything but settle for weak provisions.

The whistleblower community needs somebody in Congress who isn’t afraid to name names. There is no substitute for jury trials. If any politician is against them, they should be required to say so, and why, in the light of day, and then answer to his or her constituents.

That GAP, POGO, et al are throwing in the towel should serve as a wake up call to federal whistleblowers everywhere.

An Open Letter to the Make It Safe Campaign Membership

8:27 am in Uncategorized by MSPB Watch

Dear MISC member,

Attached, please find a whistleblower letter to Congress drafted by me and fellow whistleblower Evelynn Brown of WhistleWatch.org. We request your consideration and signature.

In the interest of full disclosure, however, the MISC Steering Committee expressed initial objections to it as is, but after we refused to dilute it, they wished to add a comment. That comment is as follows:

The Steering Committee supports and has fought hard for the reforms highlighted in the letter. We have been told repeatedly by Senate and House members that these are not passable in this political climate. It is indeed not a favorable climate for federal whistleblowers. In fact, we are surprised to have any access to court at all given the House leadership’s opposition to the idea. But though we have been repeatedly told that the bill goes as far as it can go, it does not mean we shouldn’t keep asking for what’s right. However, that is with a caveat: there will come a time when we will need the support of all of us to get some reforms through to help as many whistleblowers as we can. There will be a moment when the perfect will become the enemy of the good. We hope that at that time, all federal whistleblowers will stand in solidarity with one another to get a law that serves as many as possible.

My initial response to that comment is available here: http://mspbwatch.net/2012/06/05/pogo-will-have-to-choose-between-whistleblowers-and-congress/. Now I also interpret it as a heavy-handed attempt to quell dissent at the moment of truth. Yesterday, Tom Devine admitted that he expected any community letter to be a “pep talk” for Congress, thus rendering the one I attached counterproductive, or some such thing. One question comes to mind: where in GAP or POGO’s numerous blog posts is any discussion and naming of politicians who oppose basic Magna Carta jury trial rights? How can we say that this is not a good climate for federal whistleblowers when we’re witnessing unprecedented disgust with Washington, public exacerbation with waste, fraud, and abuse, numerous corporate whistleblowers win multi-million dollar awards weekly, and a number of law firms start up whistleblowing practices? Who works for whom – Congress for us, or us for lobbyists and Congress? Why are we accepting as given the status quo – if a politician is against these sensible reforms, let them say so, and why, in the light of day. Until that happens, no, this is not good enough.

In any event, these are just a few rebuttals that would take place if we had a healthy, functioning dialogue in the community. We whistleblowers have lost our voice, handing it over to others who may not necessarily have our best interests at heart. For one thing, there is no whistleblower with voting power on the Steering Committee, which may be why we find ourselves at odds now.

I wish for you to know where the Steering Committee stands with regards to WPEA, which position diverges significantly from the community’s, and is a direct result of failure to substantially involve and be transparent with the whistleblower community. Based on conversations with Steering Committee members, it is unlikely that we will have jury trials, be rid of summary judgment, or divert substantial impact cases from the Federal Circuit, because once the bill passes through Congressional committees, that’s it. The bill may not even be retroactive, denying its coverage to all of us who worked on it and are waiting for our day in court.

Emailing you directly, without supervision or control by the Steering Committee, is a product of our frustrations with such lack of transparency and free flow of ideas. Consider this an initial expression of no confidence in the Steering Committee.

If you wish to sign on to the letter, please email me at [dpardo220 at gmail dot com].

Sincerely,

David Pardo
Founder, mspbwatch.net
Former Attorney/Advisor, Federal Aviation Administration

Open Letter May 21 (.docx)