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Trending Info. Agency employees may view the IG as a kind of knight in shining armor—an outside, objective force charging up the hill to make all right in the agency world. That said, there are dedicated IG staffers who fairly and aggressively work with whistleblowers. Even if your plan to expose wrongdoing does not involve going to an IG, an IG may be involved at some point and you should understand the limits of these offices. An IG can identify a problem and then make findings and recommendations.
The agency in question does not have to follow IG recommendations, even if the IG confirms your disclosures. Even if an IG does not disclose your identity, it may give away information to management or conduct its inquiry in a way that makes your identity patently obvious. In particular, the agreement should provide that, in consultation with you or counsel, the IG will not communicate any identifiable information that can be traced back to you.
Further, you should lock in a commitment to provide you with advance notice if the IG decides that release of your identity truly is unavoidable. An IG can investigate or ignore your reports of wrongdoing at its leisure. The IG controls the investigation; you do not. Thus, an IG can take years to investigate a disclosure of wrongdoing. You may believe that problems within your agency would be solved if only Congress knew about them. In reality, a Congressional solution on its own is the exception rather than the rule.
While Congress sometimes conducts investigations and investigative hearings, in many cases the bulk of the investigative work was done elsewhere, such as by an inspector general, the Government Accountability Office GAO, an arm of Congress , or an agency. A federal survey shows that federal employees have far less faith that Congress will protect their identity than an inspector general or the Office of Special Counsel. Congress is an unquestionably political entity.
It is made up of hundreds of offices led by Representatives and Senators, each with their own stakeholders and political commitments, as well as dozens of committees with different, sometimes overlapping jurisdictions over the parts of the federal government. Capitol Hill is awash with activity and intrigue where short-attention-spans and one-page summaries are common because of overwhelming workloads and a lack of time. If you seek to wade into the swirling eddies of Congress, you face risks such as having your identity inadvertently exposed to your agency.
A federal survey shows that federal employees have far less faith that Congress will protect their identity than an inspector general or the Office of Special Counsel, an independent agency empowered to receive whistleblower disclosures from most federal civilian employees. However, Members of Congress can be great allies, and sometimes you can appeal to legislators who want to act against bureaucratic breakdowns. Legislators have access to the media and can shine a national spotlight on problems.
It can be far more difficult for your organization to retaliate against you if a Member of Congress supports you. The first way many public employees contact a Member of Congress is by writing a letter laying out a problem or issue in their agency. That can be a mistake. What sometimes happens with letters from public employees is that the Congressional office sends a copy to the agency for a response. Before sending sensitive material to a Congressional office, you should do preliminary research and have informal discussions to pin down ground rules.
Things to consider are:. If a Member of Congress or, even better, a committee chairperson, takes up your cause it is potentially a huge asset. However, be aware that no individual Member has direct authority over the executive branch. Thus, even in the face of Congressional opposition, an executive agency can still proceed to engage in the concerning activity you have blown the whistle on. That means your best ally is often one with appropriations or oversight authority over the agency in question.
As discussed in greater detail in Chapter 6, the Office of Special Counsel OSC is the main place where federal civilian whistleblowers can lodge complaints of retaliation. In order to report a problem to OSC, you must do the following: first, file a disclosure with OSC detailing the wrongdoing. OSC then has 45 days to review your disclosure and determine whether further investigation is necessary note that OSC often does not meet this day deadline.
That agency head is required to conduct a proper investigation into the disclosed matter. The agency head has 60 days unless OSC grants an extension to submit a written report outlining the findings. Upon receiving the agency report, OSC is required to review it and determine if it contains the required information and whether the findings are reasonable.
OSC has to transmit a copy of the agency report to you unless it referred the matter to the Justice Department as a potential criminal case. You have 15 days after receiving a copy of the agency report to submit comments on it to OSC. The Special Counsel then grades the report. If dissatisfied, the OSC either can direct the agency to provide more information, or simply flunk the effort.
OSC transmits the agency report, your comments, and its own evaluation to the president, Congressional leadership, and the Congressional committee s with jurisdiction over the agency. OSC also makes these materials available to the public online. An agency may try to ignore threatening whistleblowing disclosures as long as possible, simply not acknowledging their existence and hoping the issue will blow over.
When OSC orders an investigation, the agency no longer has that choice. Outside of the OSC process, when an agency acknowledges the existence of your concerns, it may respond with a quick report that rewrites or brushes aside hard issues and ignores significant evidence. This allows the agency to declare the issue was investigated and to let itself off the hook.
Moreover, your contributions and evidence are often not recognized in the official record. The OSC disclosure process, which gives you a formal opportunity to provide input on the investigation they spark, makes it harder for an agency to brush your disclosures aside. The law requires the agency to investigate your allegations and detail all material evidence it uncovered during its investigation in its report. The report also must include findings that take a stand on whether misconduct occurred, and what if anything the agency will do about it.
Your story becomes less of an editorial risk to publish or broadcast once it has been validated to a certain extent by a government agency. Also, it can be easier to successfully claim retaliation if agency management takes adverse employment actions against you in the wake of the disclosure referred by OSC. OSC is not allowed to disclose your identity unless you consent or it feels disclosure of identity is necessary due to an imminent danger to the public or an imminent violation of criminal law. The small OSC disclosure unit is hopelessly backlogged. That means that scores of agency-employee disclosures languish for months and even years without action.
OSC and inspectors general cannot compel individuals who are not currently government employees to cooperate. While the OSC disclosure process may be an excellent transparency tool to highlight wrongdoing, OSC has no corrective power to force the agency to desist from waste, fraud, or abuse. An agency may figure out your identity even if you requested confidentiality from OSC because the agency will associate you with the issues OSC is requiring that the agency investigate.
If you have non-public information that a company is defrauding taxpayers in Medicare or a government contract or grant, you may be able to sue under the False Claims Act to recover taxpayer dollars. If False Claims Act lawsuits are successful, whistleblowers are entitled to a percentage of the funds recovered for the U. Treasury, from a ten percent minimum to a 30 percent maximum of the monetary penalties enforced.
There are certain requirements that must be met in these lawsuits, also known as qui tam actions: the individual filing the suit must be an original source basing the disclosure on non-public information. The False Claims Act contains anti-retaliation provisions as well, which are discussed briefly in Chapter 6. There are also bounty programs in some federal agencies.
The Dodd-Frank law, which was modeled partly on the False Claims Act, created bounty programs for those disclosing violations of law that lead to enforcement penalties greater than one million dollars at two agencies responsible for protecting financial markets—the Securities and Exchange Commission SEC and the Commodities Future Trading Commission CFTC. They are rewarded merely for giving evidence to the government.
Most significant for this guide are the carefully constructed provisions in Dodd-Frank and its implementing regulations for anonymous and confidential disclosures. Whistleblowers can make anonymous disclosures, but they have to do so through counsel if they want to be eligible for an award. As with False Claims Act lawsuits, government employees can make disclosures through these bounty programs. Also similar to the False Claims Act, the disclosures must involve company misconduct, not government misconduct. One of the most effective tools for influencing decision-makers is the media.
It can bring transparency to government agencies and shape public opinion. Government leaders are both senders and recipients of messages via the media. For these reasons, the media alternately is respected, exploited, and feared by politicians and heads of agencies. The media can play the role of a leveler. It can bring disputes about misconduct out of the secret world of bureaucrats and into the glare of public attention.
But media exposure can also cause an agency to change its stance on negotiations with an employee from constructive and open-minded to antagonistic and closed as it finds itself on the defensive in an embarrassing public fight. Media attention is often fleeting. While the media can be powerful, the effects of its coverage can be evanescent.
The attention span of the public and our leaders can be distressingly short, especially in this era of the hour news cycle where people consume information immediately through fast-paced social media and online news outlets, but rarely have time to digest everything they consume. Try not to let the excitement or ego boost from media coverage undercut the point of your publicity—exposing and fixing problems.
The news media frequently focuses its stories on individuals, and any stories about you may not stress the issues you are raising. And media attention is often fleeting. New distractions compete daily for media attention, and the news media is a competitive business, driven by financial as well as informational dynamics, so you want to make the most of its attention while you have it. And telling those stories in a compelling and succinct way can be challenging, particularly on television. Only occasionally do internal agency stories cross over from specialized publications or websites into mainstream news coverage.
This means that the interest in any story about an internal agency scandal may be limited to a handful of journalists.
In order to identify that limited pool and work with them effectively to educate their readers, consider the following tips:. Professional journalists need to feel confident that their sources are solid and that the documents they provide are real. Do not contact a reporter until you have made up your mind about whether you want to be quoted in the story or to be an unnamed source.
It is vital that you know which ground rules you want to govern the interaction. Be prepared to explain why you want to be anonymous if you do, and consider whether there may be other people you can recommend the reporter talk to in order to substantiate your concerns, on or off the record.
Also think about whether to let even the reporter know your identity. Try to figure out whether national or local outlets are the best fit for what you are trying to accomplish. The newspaper or other outlet may have business ties such as substantial advertising buys or sponsored events to the entity whose misconduct you are trying to expose. Research what kind of coverage, if any, your issue has garnered in the past.
Look at whether that outlet has done investigative work in the past, and whether it carries critical stories that challenge agency statements. Read several articles by the reporter written over time about this or a related issue and look at their social media profiles to see what interests or biases they may have.
See whether your concerns are similar to issues that the reporter has highlighted, and whether that reporter does follow-up work. While the facts may all appear in the story, the tone can lead the reader toward one side of the story or the other. Reporters generally accept information on three levels: off the record, on background, and on the record. Unless you negotiate a different condition in advance, a reporter will assume everything you tell them is on the record and they can use it however they want.
It is too late if you wait until after an interview or other interaction with the reporter to set the ground rules. If you try to place restrictions after sharing the information, the reporter may cooperate as a favor but they are not bound to do so. Make sure you both share an understanding of what each of the levels means and entails before you share sensitive information. Asserting something is on background or off the record in an email, without the journalist agreeing to those terms, may not be sufficient. The definitions below largely reflect how they are interpreted by the Associated Press.
It also means that journalists cannot publish the information you provide unless a different source independently provides the information to them. This information can help a journalist climb the learning curve, but it cannot be exposed or referenced in reporting. You should go off the record if the information you tell the reporter—regardless of whether your name or general information about your position was mentioned—would likely identify you as the source if the information were it to be published or relayed to your agency.
You should let the reporter know up front whether and how, if they use the information you give them to ask questions to other sources, they could inadvertently tip off an agency that a whistleblower is talking to the reporter. Would you rather a reporter simply use the information to get official confirmation or confirmation from other insider sources? Most serious news organizations will not base reporting on a sole anonymous source. It can be easy to assume all conversations are covered by a previous agreement, especially if you talk to the reporter repeatedly.
Such mishaps occur, and once that media bell is rung, it cannot be un-rung. Even if you are clear about the ground rules, you are always taking a risk that your identity will be compromised when you go directly to the press. In rare cases, an overzealous or sloppy journalist mistakenly has named an off-the-record source. More frequently, the identity of the whistleblower becomes known through a revealing description of the unnamed source.
Talking to a reporter about how to protect your confidentiality can also help them avoid inadvertent mistakes when trying to verify documents. Start by visualizing the headline and lead paragraph of the news story you would like the reporter to write, including why the information you are providing matters to a broader audience. Start with your bottom line. Write a short, to-the-point summary and back it up with definitive documentation. Respect that the reporter has limited time, so make the research as easy as possible.
The key to publicizing problems within an agency is to make the story interesting and clear, so present reporters with a compelling description of the problems and their ramifications for the media audience. That means emphasizing consequences in language that will create an image for readers. But it is news if a town could become rubble or a crater. Remember to keep the emphasis on the story, not on yourself. Try not to leave the timing completely up to the reporter; if you do, you may find yourself frustrated.
By then, however, the abuse of power may be a fait accompli. If the information is time-sensitive for instance, you are trying to prevent a likely accident or tragedy, or affect an upcoming agency action or decision , you should make that clear to the reporter in your first interaction. Try to get a commitment, or find someone else whose schedule will make the story relevant as more than a history lesson.
If there is a pending action, that usually helps a reporter prioritize your story and make the case to their editor about the news value of your disclosures. Most reporters have no shortage of items competing for their attention. You may have access to trustworthy journalists and choose to contact them on your own, but it is usually much easier and more effective to partner with an advocate who can make those contacts on your behalf. Keep in mind that following these steps does not guarantee a news story.
Not every internal agency dispute or problem will merit media coverage. Moreover, even if the issue is covered, you may not like the result. The best reporters add value and context to information that whistleblowers provide to them. They can also bring information to the attention of senior leaders more effectively than more-junior public servants. In some instances, by refusing to take no for an answer or a non-answer for an answer , a reporter can take a story far deeper and have much greater impact than you ever thought possible.
They can also be invaluable resources for sharing or trading evidence, and referring other whistleblowers to you or your advocacy-organization partners. That said, the reporter is not your friend, advocate, or supporter.
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The reporter is just supposed to report the news accurately and fairly. Part of that process is likely to include challenging or fact-checking your allegations. Reporters working for news organizations are not free agents. They work in a business with a chain of command and idiosyncrasies, perhaps just like your agency. An editor may veto or cut a story. A reporter who tells you they are committed to writing a story cannot actually guarantee when it will be printed, that it will be printed in its entirety, or that it will be printed at all.
Further, reporters usually do not write the headlines; a hard-hitting story may be introduced with a painfully boring—or worse, inaccurate—headline. The agency may get equal time. In almost all cases, reporters and their editor will want to include the agency reaction or explanation as part of any story. This is where your familiarity with the tone of the outlet is particularly valuable.
The agency may be able to preempt your story. As the government, the agency has the advantage of being able to, on occasion, make news through an announcement or other action. Astute agencies have been known to release an announcement or other breaking news out the front door of their public affairs office to distract from the bad news coming out the back door from employees. In addition, some reporters like to add drama to their stories.
For example, a reporter may think that the tortured-whistleblower angle adds the desired human dimension to a story about internal agency conflict. While this approach is sometimes justified, do not allow yourself to be lured into a profile at the expense of the issue. If the story needs a hook, try to avoid having it buried in your back. Rarely is media coverage an end unto itself. Rather, it is just one component of a larger effort. Sometimes the moment of greatest leverage with an agency is just before a news story runs because the agency may be willing to take steps it would otherwise not take in order to avoid or mitigate the media exposure.
Conversely, the day after the story runs, the agency may be set in a defensive posture, unwilling to take any steps that imply an admission of guilt. If your goal is to correct a problem, you should have a strategy for how to accomplish that and precisely what role media coverage will play. In other words, it is important to think of the process in terms of a campaign.
This is another reason why it can be to your advantage to partner with advocacy groups that can help ensure your story reaches the audiences necessary to effect change. Very few problems within agencies evaporate simply because they have been the subject of one article in a newspaper. It may take sustained media exposure to effect change. If sustained coverage is necessary, you must plan for an entire campaign and not just the first step or a single story. It can be very difficult to garner sustained media attention. Reporters may think your concerns merit only one or a handful of stories based on the information you give them.
In this scenario, you need a strategy to keep up the pressure. That may include working with advocacy groups or a Member of Congress to spark an official investigation or audit of an agency, or to question the agency during a hearing. These actions may help you make your case that an agency needs to rectify the issue, especially since agencies can often waive off news reports alone as biased and slanted.
The key to earning public solidarity is sustained exposure of steadily accumulating evidence. That means pacing your releases of evidence. In order to generate a series of stories in any scenario, you must assemble a lot of raw material and then refine it down to individual stories. Similarly, you can intersperse releases of new evidence with other developments such as letters or expressions of support from political leaders, which can be their own complementary news hooks. If you conduct your campaign successfully, the deepest wounds to the agency will be self-inflicted.
It may be that a single journalist will be interested in every piece of ammunition, but if that single journalist loses steam, approaching other outlets can increase pressure on an agency. That said, recognize that journalism is a very competitive field and a reporter may feel burned if they feel like the source is playing them against their competitors.
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Sustained media attention also tends to spawn official investigations see Chapter 4 that put even more pressure on agency leadership. Each investigation not only becomes a new, separate story, but each may provide a new forum to air allegations and be a magnet for new witnesses who are starting to hope that something can be done.
Each new story will recount the previous developments, like an arrest rap sheet, so that the allegations continue to build toward a climax. Media attention can also backfire.
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If you are still working inside an agency and are thinking about working with the press, extreme caution is in order. The agency leadership will correctly see its professional survival at stake and critical coverage can get deeply under their skin. Breaking ranks to go public often is viewed as an act of unforgivable betrayal.
When you experience, witness, or hear about a practice at work that you believe violates the public trust, you may feel a sort of fight or flight response: Do I tell someone with power about this in the hope of changing it, or do I look the other way? But what if such anonymity is impossible because your disclosures are easily tied to you or your identity is exposed some other way? What kind of protections exist if you face retaliation?
And what does a retaliation investigation look for? This chapter is an introductory menu for answers to these questions. First the good news: In the almost 20 years since the last edition of this book, Congress and the executive branch have strengthened whistleblower rights and protections for federal employees and contractors, as well as for corporate workers. Employees of government contractors, intelligence agencies, and the FBI, and uniformed members of the military have all seen improvements in their legal protections, and there has been a legal revolution in corporate free-speech rights.
But, despite these and other major victories advancing whistleblower protections, there are still critical flaws in existing laws. In addition, barriers like bureaucratic red tape, partisan squabbles in Congress, resource limitations, and timid officials who are unwilling to make waves can and do hold up access to justice, sometimes well within their discretionary authority under the law.
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And the sobering truth is that even where the strongest possible protections exist, there will always be people who violate them and get away with it. Whistleblowers themselves regularly become the subject of retaliatory actions or criminal investigations, even though most of them were merely trying to right a wrong. This chapter focuses mainly on the laws that protect most career federal civil-service employees working in the executive branch.
The chapter will also outline protections for federal contractors, intelligence community employees and contractors, FBI employees, and members of the armed services. All have distinct protections and processes for blowing the whistle separate from the WPA. They include political appointees and employees in the legislative and judicial branches of government. They also include executive branch employees still in their probationary period, who have curtailed employment appeal rights under the WPA.
If you are a covered employee and file a retaliation complaint, an investigation into your complaint will focus on four key questions regardless of whether you are a federal civilian, FBI or intelligence community, or contractor employee, or a uniformed member of the armed services. Those five key questions are:. This chapter will walk you through what the answers to these questions must be in order to win a retaliation claim. It will also discuss how the different laws and regulations covering other types of federal-sector employees affect these questions.
For instance, to defend itself against a retaliation claim, the military can produce weaker evidence to show it had a legitimate, non-whistleblowing reason to discipline a uniformed military whistleblower than civilian or intelligence agencies, the FBI, or contractors have to show to defend themselves. When deciding whether to blow the whistle, your best bet is to remain realistic in your expectations, know your rights, and speak with a knowledgeable attorney. The scope of what qualifies as a protected disclosure varies to some degree, too: for example, unclassified disclosures by most civilian federal employees to the press can receive protection, whereas unclassified disclosures by FBI and intelligence employees or uniformed members of the armed forces to the press do not.
Nobody is protected for disclosing classified information to the press or public, period. When deciding whether to blow the whistle, your best bet is to remain realistic in your expectations, know your rights, and speak with a knowledgeable whistleblower-law attorney before pressing forward. Your situation will likely have many nuances.
And the law is not always as straightforward as it sometimes seems. For instance, case law—binding decisions by judges—makes legal analysis even more complex. This guide is just a starting point. Many employees communicate concerns without thinking of their communications as whistleblowing or of themselves as whistleblowers. Under the Whistleblower Protection Act, a protected disclosure is a formal or informal communication or transmission of information that a covered employee, former employee, or applicant reasonably believes evidences:.
This means that you must have believed that the information evidenced a prohibited activity, and your belief must be objectively reasonable, meaning it would be reasonable for someone in your position to draw the same conclusion that you did. There are, however, explicit exceptions. If your disclosure includes classified information, you are protected by the law only if you disclose that information to a relevant Office of Inspector General, the Office of Special Counsel OSC , or other authorized channel that can legally receive classified material the role of inspectors general and OSC in accepting disclosures is discussed in Chapter 4.
There are no protections for disclosing classified information to the press, the public, or to any other parties not listed in the channels for making a protected disclosure. Such disclosures are grounds for discipline up to and including termination, and possibly for criminal prosecution. The same goes for other information that statutory law restricts from public dissemination, such as private medical information and confidential tax and financial records.
You will not receive protection if you disclose that information to the public or the press. In addition to the protected disclosures mentioned above, the law also protects employees who take certain actions from employer retaliation. For example, these rights protect against retaliation resulting from a covered employee filing discrimination complaints with the Equal Employment Opportunity Commission EEOC. Note that OSC typically refers these retaliation complaints to the EEOC to investigate, but the act of filing a disclosure is protected as a complaint right.
After you and your attorney, if you have one, determine that your disclosure falls into one of the protected categories, your next decision is to choose the recipient of your disclosure. Most federal civilian employees protected under the WPA have a wide array of people and offices they can make protected disclosures to.
For instance, you can choose to make disclosures internally to a supervisor or to someone else in your agency. However, the law does not require that you do this, and internal disclosures are not always safe or effective. After all, your supervisors could very well be the subject of your disclosure or become messengers to warn the wrongdoer. You can also choose to make your disclosure externally to an Inspector General, the Office of Special Counsel, Congress, advocacy groups, or the press.
As noted above, if your disclosure involves classified information or other information prohibited by statute from public dissemination, you are not protected for those disclosures made to the press, the public, or anyone else not legally authorized to receive that material. Most other types of federal workers who are excluded from the WPA—such as those in the intelligence community, the military, and the FBI—do not have the same array of outlets they can disclose to and still receive protection.
For more on filing an initial disclosure, see Chapter 4, which details the main official oversight bodies you can bring your disclosure to: Offices of Inspectors General, the Office of Special Counsel, and Congress. Chapter 2 discusses non-governmental organizations as potential recipients for disclosures, and Chapter 5 discusses working with the press. An unfortunate reality is that whistleblowers often become subjects of retaliatory civil and criminal investigations.
After opening such an investigation, the agency then offers the whistleblower a choice of facing criminal prosecution, or resigning and dropping the retaliation claim. The employee is powerless until the investigation leads to a subsequent personnel action. If you have an attorney, speak with them before blowing the whistle.
After considering whether you made a protected disclosure and faced a retaliatory action under the law, investigators will look at management knowledge of your disclosure. Note that it is not necessary that the proposing or deciding official on the personnel action have knowledge if some management official who influenced the decision had such knowledge. Direct evidence can be things like emails, confessions, testimony or documents that tie the personnel action taken against you to your disclosure.
Circumstantial evidence can also be used either instead of or in addition to direct evidence to prove that management knew about your disclosure and retaliated. Circumstantial evidence looks at the circumstances around your disclosure and the personnel action, such as coincidental timing you made a disclosure on Friday and were fired on Monday or disparate treatment where all of your co-workers get some work-related reward except you, to draw logical conclusions connecting the two. In retaliation cases, the burden of proof is on you to demonstrate that you made a protected disclosure, faced an adverse employment action, and that there is evidence the action was taken when management knew, should have known, or suspected you blew the whistle.
If you meet that burden, the agency is then put on the defensive. Did it have a legitimate, non-whistleblowing-related reason to take action against you? Basically, the agency has to show that it would have taken the same personnel action even if there had not been whistleblowing. Agencies can do this by showing that their treatment of you was the same as that of other employees, that they had no motive to retaliate, that their action was put in motion before the whistleblowing, that your purported poor performance or misconduct was real, or similar valid justifications.
For this reason, you should always remember that you need to be cautious about maintaining quality performance at work. Even if you are being retaliated against, you should always try to perform your job to the best of your ability and with professionalism. Whistleblowers who face retaliation at work and a newly and unreasonably difficult work environment may feel tempted to start using all of their sick leave or otherwise refuse to perform their job function.
But underperforming would only provide ammunition to employers who will be looking for anything legitimate to use against you to defend against your claim of retaliation. While it may be frustrating, you should strive to still provide your best work and be as professional as possible. Agencies have explicit rules limiting unofficial or personal use of government resources, facilities, and time.
A whistleblower caught with private correspondence to a civil society group or faxing or emailing documents to a reporter will often be disciplined for misuse of the equipment or misappropriation of government resources. You should assume that any information on your work computer s or devices is open to management review.
This includes work and personal email, documents saved, programs accessed or downloaded, and messages sent. You should also forgo whistleblowing telephone conversations conducted over workplace telephone lines or on government-issued cellphones. That can not only lead to termination, but some agencies such as certain law enforcement agencies have regulations that allow them to monitor conversations or record all telephone calls. Furthermore, most government agencies keep a computer log of all incoming and outgoing telephone numbers dialed to or from agency telephones. These logs are frequently reviewed to find out who employees are talking with.
Similarly, agency fax machines, copiers, and scanners keep logs of all sent and received documents and may have the capacity to keep electronic copies of documents. These logs may be used to prove that an employee improperly used government equipment. Finally, avoid using government facilities for personal purposes. But who do you file your claim with? This chapter focuses on their roles in investigating retaliation claims. Remember that if you are an intelligence community employee, you have unique protections that will be described in detail later in this chapter.
The Office of Special Counsel is specifically authorized by Congress to, among other things, investigate claims of retaliation. Federal civilian employees can file whistleblower retaliation claims directly with the MSPB only if they involve unpaid suspensions of more than 14 days, terminations, or other serious employment actions. For other actions, as well as action by probationary employees who cannot otherwise bring a case to MSPB, federal civilian employees must go to OSC first. Offices of Inspectors General IGs are internal federal agency watchdogs.
Under the WPA, IGs can receive claims of whistleblower retaliation, and the Inspector General Act, as amended, dictates IG staff training and the creation of best practices for whistleblower intake and investigations. Each IG office must have a whistleblower coordinator who makes sure that the office is trained in whistleblower law, and to assist the IG with investigations. They cannot negotiate relief for a whistleblower or pursue enforcement, even if they find retaliation occurred.
They work for the IG. Further, whistleblower coordinators do not investigate retaliation cases. Some federal employees can also use a union process to adjudicate their claims of prohibited whistleblower retaliation. You and your attorney, if you have one, should choose your outlet for relief based on your needs. But be cautious in doing so, as exercising one right could permanently eliminate the other options. For example, if an employee goes to MSPB first with a claim that they were fired in retaliation and they lose that case, they cannot later go to OSC with that claim. Employees who are a part of a union may have the option of participating in arbitration with the agency.
The union is the party in an arbitration, not the employee. Before arbitration hearings begin, unions can and frequently do drop cases that the whistleblower wants to pursue. Further, someone who elects arbitration can no longer seek relief through the Office of Special Counsel or Merit Systems Protection Board.
For most federal employees, the OSC and MSPB adjudication processes are the only way to seek legal relief when facing retaliation for blowing the whistle without losing control over their rights. The first step for most federal employees when they are subjected to whistleblower retaliation will be filing a claim with the OSC. After receiving your retaliation claim, OSC must acknowledge receipt and assign the claim to an OSC contact within 15 days.
If OSC decides to terminate the investigation immediately, it must notify you within 30 days of termination. If, in the course of the investigation, OSC determines that reasonable grounds of a prohibited personnel practice do not exist, it must notify you 10 days before terminating the case.
If OSC still decides to terminate the investigation, you have 65 days to take their case directly to the MSPB to seek relief on their own. If OSC ultimately finds that retaliation has occurred, it will send notice to the relevant parties, with recommendations to the agency on how to correct the retaliation. If the petition is not resolved, it triggers a formal hearing process at the MSPB. Know that the OSC has extremely limited resources compared to the number of claims it receives, and for that reason is slow to act and is only able to bring a small percentage of cases in front of the MSPB.
As a result, the cases it does bring are typically high-stakes or legally significant. Filing first with OSC gives you two bites at the apple and also gives you an option of formal mediation through its alternative dispute resolution program, which has been highly effective this program is discussed in more detail below. The Merit Systems Protection Board is a quasi-judicial entity in the executive branch made up of administrative judges AJs and a three-member bipartisan Board, whose members are appointed by the president with the advice and consent of the Senate.
That is a low bar: it covers any factor which, alone or in combination with other factors, tends to affect the outcome in any way. However, the agency has an ace in the hole: If it can prove by clear and convincing evidence that it would have taken the personnel action regardless of your disclosure, the MSPB cannot order corrective action. First, usually after an evidentiary hearing, administrative judges make initial decisions on allegations of prohibited personnel practices. The losing side can appeal the case to the three-member Board.
However, whistleblowers have the additional option of appealing the case to a federal appeals court. But there are downsides to this process. This is true, too, if the agency appeals the case to the board. While AJs have only days to complete their review of a case, the Board can take as long as it wants. Appeals to the Board are particularly a problem at the time this book went to press.
In order to make decisions on cases, the Board needs at least two active members, but, as of March , it has lacked the necessary quorum for over two years, largely due to politics, since the president must nominate and the Senate must confirm the members. Although it is highly unlikely that a whistleblower will win at that level, this bypasses the perhaps years-long wait for a final decision from the Board.
However, going straight to federal court is not without its pitfalls. By cutting out the three-member Board and instead going to federal court, you may save time but will run up your bill and give up an additional bite at the appeals apple. Further, the appellate court could remand your case back to the MSPB, placing you back where you started. If you first file a petition for review with the Board but later want to try your case at the federal court instead, you have the option to request a withdrawal of their petition.
With no Board, this decision to approve the withdraw request is now made by the clerk of the Board. However, any objection by the agency would kill the request to withdraw because there is no Board to review it. So, if the agency fired you, you are still fired while your appeal is heard. This relatively new program sidesteps the investigative and adjudication process, which can be lengthy and expensive, and replaces it with mediation between you and the agency.
If you and the agency fail to settle, you can then seek relief through the investigative process described above. As always, however, we strongly advise that you speak with an experienced attorney before moving forward. Federal civil-service-employee whistleblowers are now the only major sector of the workforce who are not able to enforce their legal rights before a jury in federal court. As a result, federal-employee whistleblower-retaliation cases lack the extra layer of insulation from politics that typical jury trials would. Whistleblower Protection Coordination Act June : Created the position of whistleblower coordinator within each federal inspector general office, and requires the Council of the Inspectors General on Integrity and Efficiency CIGIE to issue best practices on how IGs should communicate and work with whistleblowers.
Follow the Rules Act June : Extended retaliation protections to employees who refuse to comply with an order that would violate a law, rule, or regulation. FBI Whistleblower Protection Enhancement Act of December : Expanded the list of officials to whom FBI employees may make a protected disclosure, to include their supervisors or someone within their managerial chain of command. Act to Enhance Whistleblower Protection for Contractor and Grantee Employees December : Permanently extended retaliation protections to personal service contractors, grantees, and sub-grantees.
It also included provisions allowing government employees to blow the whistle on censorship or suppression of their peer-reviewed research, codified protections against Nondisclosure Agreements and other gag orders or policies; and began the whistleblower-coordinator and appellate-review pilot programs that were later made permanent in the All Circuits Review Act and Whistleblower Protection Coordination Act. The Whistleblower Protection Act excludes a large cross section of the federal workforce, including employees of private companies that contract with the federal government, employees of intelligence agencies, and members of the military.
There is a collection of statutory and regulatory rules and protections that dictate the whistleblowing options for those sectors. Many federal agencies utilize contract workers—individuals who are employed by companies that contract with the federal government to perform certain jobs. Contractors and recipients of federal grants are covered under a separate law that aims to encourage employees who work for contractors or grantees that are defrauding the federal government to blow the whistle.
You must file that claim within three years of the date of the retaliation. After filing, the inspector general must investigate and submit a report of the findings to you, your employer, and the head of the agency. The head of the agency must then decide if there is sufficient basis to find retaliation. Note that this law does not protect federal contractors working in the intelligence community. Their protections are discussed below.
Importantly, IC whistleblower protections under this patchwork only apply to disclosures made to very specific audiences. As a result, while you might have rights on paper that protect you from retaliation, those rights are only enforced sporadically in practice—and implementation of the enforcement mechanisms vary widely across the IC.
Congress has passed several laws over the years making it illegal to retaliate against IC whistleblowers.
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Specifically, the Intelligence Authorization Acts of Fiscal Year and were significant leaps forward, creating an inspector general for the intelligence community and making it unlawful to retaliate against IC employees for making protected whistleblowing disclosures, respectively. Under the overarching law prohibiting whistleblower retaliation, it is illegal to retaliate against a covered IC employee by taking or failing to take certain personnel actions against the employee as reprisal for their lawful whistleblowing disclosures.
This means that until Congress modifies that law to provide for enforcement within the statute, IC whistleblowers must rely on agency policies and presidential directives for enforcement of their rights. Created by President Obama in , PPD lays out general enforcement mechanisms protecting IC employees from retaliation for making protected disclosures and requires each IC element to create a more specific process within their own agency.
PPD is broken into several sections. Section A prohibits retaliation against covered employees for making protected disclosures and provides a method of enforcement through review by an inspector General. Section B outlines protections for retaliatory clearance revocation, and Section C creates a three-inspector-general panel to hear appeals from those covered under Sections A and B. Part A of PPD prohibits retaliation against whistleblowing disclosures and establishes a review process but excludes certain IC employees.
The review panel must complete their review within days. Once the review panel reaches a decision and recommends corrective action, it sends its recommendation back to the agency head. Importantly, because PPD and the agency policies created under its mandate are not laws passed by Congress, they could be revoked by any sitting president at any time without approval by Congress. Also, Section A of PPD does not expressly protect IC contractor, subcontractor, grantee, subgrantee, or personal services contractor employees, although the Obama Administration interpreted Section B to cover retaliatory security clearance actions against them security clearance protections will be discussed later in the chapter.
This means that if you are a covered IC contractor employee who blows the whistle, while you are technically protected from retaliation under the law, you are not explicitly entitled to enforcement under PPD as of this writing. But unless PPD is amended to explicitly include contractors, there is no IC-wide mechanism to enforce your statutory protection against retaliation. Proceed with great caution, and consult with your attorney, if you have one, at every step. For further reading, the Intelligence Community Inspector General maintains a helpful guide on IC whistleblowing on its website.
FBI whistleblowers have protections, but despite recent improvements, they are still much weaker than the protections for most of the rest of the federal civilian workforce.
asocecthug.tk When Congress passed the Civil Service Reform Act of , the FBI convinced Members to omit statutory rights in favor of requiring the Bureau to issue regulations creating equivalent protections for its employees. The burdens of proof considered in an FBI whistleblower retaliation case are similar to those in federal civilian cases.
The Office can also hold a hearing on the evidence in your case. However, this process is not as independent for the one for most other federal civilians. This is in contrast to Merit Systems Protection Board, where most federal civilians can have their retaliation claims heard. The MSPB is independent of the agencies whose actions it is reviewing. The Military Whistleblower Protection Act makes it illegal to restrict a service member from making lawful communications to Congress or an inspector general.
The burden of proof is placed differently in military whistleblower retaliation cases than it is in civilian cases. Military whistleblowers must prove that they were illegally retaliated against, whereas in civilian cases the agency must prove that they did not retaliate. Retaliation claims under this law must be filed with the Defense Department Inspector General or, for the Coast Guard, the Inspector General for the Department of Homeland Security , or the inspector general for the relevant branch of the military.
Importantly, there is a statute of limitations for retaliation claims: the IG is only required to investigate a claim of retaliation if you file that claim within one year of when you first learned about the prohibited retaliation. Within days, the IG must report the status of your retaliation claim to you, to the secretary of defense, and the secretary of the relevant military branch. The IG must continue to send updates every days until the investigation is complete.