IEC Journal

OSC finds retailiation of whistleblowers in Air Force Mortuary case

See OSC's press release at: http://www.osc.gov/documents/press/2012/pr12_01ppp.pdf.

Related news articles include:

• Washington Post http://www.washingtonpost.com/world/national-security/dover-mortuary-whistleblowers-suffered-retaliation-say-investigators/2012/01/31/gIQA0VTNfQ_story.html 
• POGO http://pogoblog.typepad.com/pogo/2012/02/top-whistleblower-cop-carolyn-lerner-recommends-punishment-for-retaliation-at-port-mortuary.html#tp 

Whistleblower Bill Draws Criticism

An article in Government Executive reports that The Whistleblower Improvement Act of 2011 has passed through a House subcommittee, but is drawing criticism from watchdog groups like POGO, which states that the bill is an extreme approach that would silence would-be whistleblowers and undermine investigations.  The proposed act would require whistleblowers, with some exceptions, to report criminal activity internally in addition to filing a complaint with the SEC.  Supporters of the bill state this additional step will allow companies to stop criminal activity early, lessening the burden on an over-taxed SEC.

Controversy Over Ouside Organization's Cash Payment to Whistleblower

Thanks to an IEC member for  alerting us to a Fedsmith.com story about legal wrangling over a $383,600 cash payment from POGO to a Department of Interior economist who helped POGO win a false claim action. After the Department of Justice intervened, the defendan oil companies settled the case  for about $440 million.

The Department of Interior attempted to fire the economist, citing 18 U.S.C. 209(a) (prohibiting supplementation of salary).

P.S. We were a little late following up on this tip due to the holidays and medical issues of one IEC reporter. If you submitted a tip, but did not see it published, please send us a reminder. We get a lot of excellent tips from readers, and don't want to inadvertently fail to follow up.

Praise for Active New OSC Chief

The Washington Post had a profile of new Office of Special Counsel head Carolyn Lerner. Here's an excerpt:

Since she took over the obscure investigative unit that reviews disclosures of government wrongdoing — and advocates for employees who are punished for reporting it — the employment and civil rights lawyer, 46, has shown a willingness to shake things up.

In several high-profile cases, Lerner has gone to the mat and tried to expand the boundaries of the law’s protections for whistleblowers. She has lifted long-sagging morale at an agency that, instead of behaving as an independent watchdog, has treaded water for much of its existence.

Lerner’s staff is tackling neglected cases, in contrast to her predecessor, whose office had thrown many out, and claims have shot up since she arrived, Lerner says. She has challenged judgments by the panel that decides civil service disputes. And she has called for wholesale changes to the law prohibiting politicking by public employees so local and state workers can run for office, even if their jobs are tied to federal funding.

 

Senator McCaskill Seeks to Extend Whistleblower Protections to Employees Working under Federal Contracts

An article on GovExec.com states that Senator Claire McCaskill (D-MO), is seeking to push a bill that would expand whistleblower protection to employees working under federal contracts.  The Non-Federal Employee Whisteblower Protection Act would expand the scope of covered disclosures, allow for protected disclosures to be made to employers and provide a shield against retaliation. 

Financial Institution Whistleblowers Ignored, Punished by Lenders

iWatch, a project of the Center for Public Integrity, offers a pointed reminder that the government sector has no monopoly on mistreatment of whistleblowers.

NPR Story on Office of Special Counsel

National Public Radio has a positive story available about the turnaround at the Office of Special Counsel. Here's an excerpt:

If [new Special Counsel Carolyn] Lerner keeps up her recent pace, the office may not remain secret for much longer. She went public earlier this month with a report critical of personnel decisions by the Air Force. Lerner raised questions about whether the Air Force had inadequately disciplined managers at the mortuary at Dover Air Force Base, where three whistle-blowers reported that remains of dead American service members had been mishandled.

"Because we're independent, we really can be an objective source for reviewing what the agency's internal investigations uncover and pointing out problems with those investigations," Lerner says. "If there are still questions that remain, we can raise them."

Debra Katz, a Washington employment lawyer who's followed the office for decades, took note.

"By taking the position that she did, and making it clear she was not going to be a wallflower or someone who could just be walked over, but she would go toe-to-toe with the Air Force, she sent a very strong message that whistle-blowers would be protected," Katz says.

Why Doing the Ethical Thing Isn’t Automatic

A recent New York Times article contains a fascinating survey of academic studies on whistleblower psychology. One section describes a phenomenon that is highly relevant to federal sector training:

Research also shows that it is much easier to step over the boundary from ethical to unethical when there is a gradual erosion of moral values and principles rather than one big leap.

A 2009 article in The Journal of Experimental Social Psychology, also co-written by Professor Gino, used as an example an accounting firm that has an excellent relationship with a client company. The accounting firm, which receives tens of millions of dollars in fees from the client, approves the company’s high-quality and ethical financial statements.

For three years, everything is fine. But suddenly, in the fourth year, the company stretches and even breaks the limits of the law.

Another case? Same accounting firm, same client. This time, after the first good year, the client bit by bit pushes the ethical envelope over the next three years.

The accounting firm would be more likely to approve the financial statements in the second case than in the first, the article says.

One of the reasons, Professor Gino and her colleague write, is that “unethical acts can become an integral part of the day-to-day activities to such an extent that individuals may be unable to see the inappropriateness of their behaviors.”

We have prepared a couple of Microsoft PowerPoint slides based on the Journal of Experimental Psychology article referenced that may be useful to trainers who would like to include a short component on the dangers of gradual erosion of ethical standards:

Download Dangers of Gradual Erosion

These slides have a stark appearance because they don't include any graphics templates. This is to make it less likely they will conflict with any graphics templates that you have already chosen for your presentation

MSPB Report on Barriers to Federal Employees Making Disclosures

GovLoop has an article about a new report issued by the U.S. Merit Systems Protection Board (MSPB), titled Blowing the Whistle:  Barriers to Federal Employees Making Disclosures.

An Office of Special Counsel press release noted:

According to the report, approximately one‐third of the individuals who believed they had been identified as a source of a report of wrongdoing perceived either threats or acts of reprisal, or both. In addition, the report found an increase in the percentage of employees aware of waste caused by a badly managed program and a significant increase in the number of employees who observed acts of wrongdoing that would cost more than $100,000. Lerner said, “With the government facing a fiscal crisis, OSC’s role to protect whistleblowers has never been more important.”

State Department Takes Hard Line Against Book Author

The Washington Post's Federal Diary column reports on the plight of Department of State whistleblower Peter Van Buren:

The memo said that by publishing articles and blog posts “on matters of official concern . . . without submitting them to the Department for review . . . your judgement in the handling of protected information is questionable.”

State’s memo did not identify the objectionable blog item, but Van Buren said it was “a link, not a leak, a link from my blog to a WikiLeaks document that was already on the Internet.”

The fact that the document was available to everyone in the world did not matter.

“I did write blog postings and online articles without permission,” Van Buren admits. But he understandably questions whether his punishment is in line with the little or no harm done by linking to a document that was readily available anyway.

DoD Accepts Office of Special Counsel Whistleblower Recommendation

A press release at the OSC website described a positive solution to a case of whistleblower retaliation:

In an April 2010 report to then‐Defense Secretary Robert Gates, OSC recommended full corrective action for Ms. Le and disciplinary action against officials responsible for the whistleblower retaliation and other prohibited personnel practices. DCAA Director Patrick Fitzgerald concurred and took action:

• Ms. Le’s appraisals were changed to reflect the highest levels of achievement;
• Ms. Le received retroactive performance awards and her gag order was lifted;
• Subsequently, Ms. Le received a promotion;
• The officials responsible for the retaliatory actions against Ms. Le left government service, were reassigned or were disciplined.

Special Counsel Lerner said, “I’m grateful to Diem‐Thi Le for her courage to speak out. Whistleblowers like Diem‐Thi Le put their careers on the line when they expose this kind of fraud and abuse. They make our government stronger and they save taxpayer money.”

Whistleblower Bill Advances in House

A key House panel on Thursday approved recently revived whistleblower protection legislation, building bipartisan momentum for expanding protections against retaliation to airport baggage handlers, national security employees and some federal contractors.

The unanimous vote by 35 members of the House Oversight and Government Reform Committee moves the bill (H.R. 3289) to other committees in an effort to close what some call "judicially created loopholes" that have limited the number of whistleblowers who win legal cases.

via www.govexec.com

Time Article Discusses Military Whistleblowers' Fear of Reprisal

A recent Time article addresses the fact that hundreds of whistleblower reprisal complaints filed by  military members each year go unsubstantiated and highlights a particular case where the military member feels he was denied re-enlistment because he reported unsafe aircraft maintenance concerns and participated in an investigation of senior command corruption. 

OSC Seeks Quick Relief for Two Whistleblowers

An Office of Special Counsel press release reports on OSC's efforts to seek stays of adverse actions proposed against whistleblowers. The press release notes:

Special Counsel Carolyn Lerner stated that “these cases concern serious threats to public health and safety, and raise important issues of law.  OSC’s actions make clear that this agency will vigorously protect federal employees against retaliation when they blow the whistle.” Ms. Lerner recently completed her first 100 days at the helm of the Office of Special Counsel. 

POGO has additional comments.

 

Issues Concerning Document Destruction At SEC

A Washington Post story suggests that the SEC's recent destruction of preliminary investigation records is contrary to the prevailing practice at other federal agencies.

POGO commented on a disturbing aspect of the SEC situation, the apparent attempts to demonize and discredit the whistleblowers who brought the problem to light. POGO concludes: "This time around, we hope the SEC will focus all of its attention on assisting the OIG with its investigation and taking whatever corrective action is needed, rather than trying to discredit the whistleblower who brought these allegations to light."

SEC Officials Alleged to Have Retaliated Against Whistleblowers to Depart

The Project on Government Oversight reports on the departures of SEC officials claimed to have retaliated against whistleblowers.

OSC: Dept. of Energy Mistreated Whistleblower

An Office of Special Counsel press release alleges that the Department of Energy violated a whistleblower's rights by suspending him for 13 months. Here's an excerpt:

U.S. Department of Energy (DOE) Secretary Steven Chu has agreed to change his agency’s internal policies and regulations in response to an Office of Special Counsel investigative report finding DOE committed prohibited personnel practices against Stephen Patrick, a nuclear materials courier and a federal agent at DOE’s Oak Ridge, Tennessee, facility. Mr. Patrick was twice suspended when his managers revoked his certification to work with nuclear materials under the Department’s Human Reliability Program (HRP). ...

On August 2, 2011, DOE informed OSC that while it disagreed with OSC’s conclusion that it had violated Mr. Patrick’s due process rights, it was rescinding its policy of mandatory indefinite suspensions when an HRP certification is revoked. Instead, DOE agents like Mr. Patrick will be placed on administrative leave pending the completion of their internal appeals. Furthermore, a DOE working group is drafting regulatory changes to expedite the internal appeals process to avoid lengthy delays, like the 13 months that passed between the revocation decision in Mr. Patrick’s case and the resolution of his appeal.

Crowd Sourcing as Whistleblower Supplement

NextGov suggests:

As public portals for information sharing improve, fraud and waste scandals that were traditionally broken by whistleblowers inside government will increasingly be sussed out of aggregated data from frustrated citizens on the receiving end of federal work, a transparency advocate predicted Friday.

The website Seeclickfix.com, for instance, which has been adopted by about 500 cities, allows local governments to aggregate citizen complaints about, say, unfixed potholes to spot a problem in the streets department without an insider ever stepping up, said Micah Sifry, an open government blogger and author of WikiLeaks and the Age of Transparency, which was published in March by Counterpoint.

GAO Greenlights CFTC Whistleblower Incentive Fund

GAO has ruled in favor of a Commodity Futures Trading Commission plan to use its Customer Protection Fund to pay incentives to whistleblowers:

B-321788, U.S. Commodity Futures Trading Commission--Availability of the Customer Protection Fund, August 8, 2011.

Scott Bloch Sentence Reversed

Talking Points Memo reports that the District Court rescinded Scott Bloch's one month prison term. According to District Court Judge Lamberth:

That said, the Court finds it surprising that none of the attorneys in this case--neither those for the government, nor those for defendant--questioned such precedent upon reading the statute. This is, at bottom, a situation in which lawyering has fallen short. Again, however, the relevant question is what defendant believed when he pled guilty, however inexplicable that belief.

Special Counsel Announces Settlement of U.S. Customs Case

The OSC press release concerning this whistleblower reprisal case is available. Here is an excerpt:

In a series of whistleblower disclosures to OSC from 2005 to 2007, Mr. Downey revealed compelling evidence of misconduct, management neglect, and abuses of overtime pay at Blaine Sector. Investigations initiated by OSC of Mr. Downey’s disclosures substantiated many of his allegations.

Mr. Downey also alleged that he was retaliated against after he disclosed the wrongdoing, and OSC’s investigation substantiated his claim. Specifically, OSC found a pattern of illegal retaliation including: retaliatory investigations that led to a proposed decision to fire Mr. Downey; a suspension; an indefinite transfer to another border patrol station; a reprimand; the removal of his supervisory duties; and a failure to promote him despite a favorable recommendation from his supervisor.

 

NSA Whistleblower Complains of Harsh Treatment

TPM Muckraker reports on the claim of an NSA whistleblower that the harsh treatment he received is intended to intimidate other whistleblowers. Here's an excerpt:

The government is telling whistleblowers "do not tell truth to power, we'll hammer you," Drake told CBS. His on-camera interview followed an article in the New Yorker on his prosecution by the Obama administration's Justice Department. The trial is set to begin next month.

Drake is being prosecuted not for talking with a reporter but for taking home classified documents. But thanks to a mistake by the prosecutor handling the case (he sent the defense team an earlier draft of the indictment against Drake), the former NSA official's lawyers can see how greatly the scope of the indictment was reduced.

He was no longer charged with leaking classified documents or being part of a conspiracy -- rather he was charged with the "willful retention" of five documents. Even with those reduced charges, Drake still faces up to thirty-five years in prison.

OSC Report on Problems At Detroit Airport

Do whistleblowers make us safer? An OSC press release describes flight safety problems at the Detroit Metropolitan Airport.

NRC Inspector General Reports Whistleblower Reluctance

From Corporate Whistleblower Blog:

A recent report by the Nuclear Regulatory Commission’s Office of Inspector General brought to light, among other thing, a general reticence among nuclear power plant operators to blow the whistle on substandard safety practices.  Specifically, the NRC Audit Report indicated that nuclear plant operators fail, in the majority of instances, to self-report to the NRC instances of safety-related component failure that could have serious implications of the integrity of a nuclear power plant.  Such self-reports are required by federal law.  It appears that the reluctance of employees to blow the whistle stems in part from their fear of retaliation, as employees remain convinced that speaking out would endanger their livelihoods and professional standing.

Whistleblower Enhancement Bill Reintroduced

Washington Post columnist Joe Davidson waxed poetic in his comments on a perennial occcurrence: "Like a spring flower that pops open every year, the Whistleblower Protection Enhancement Act has been reintroduced in the Senate." He observes it "came within a whisker of becoming law in December." Davidson's complete column is available.

Whistleblowers in Intelligence Community

"Intelligent Whistleblowing" is an article in the most recent issue of the Journal of Public Inquiry. For your convenience, we have excerpted the article from that issue of the magazine and are making it available here:

Download Article-Intelligent Whistleblowing

Backing Up Whistleblowers

Government Executive's Management Matters column has some thoughts on dealing with whistleblowers:

Even without an executive order, managers can play a crucial cultural role in protecting and even encouraging whistleblowers. "If a person comes forward and the manager embraces that and fixes it, they should make a big deal of it - recognize and reward them, so there's not a culture of fear," Brian says.

But many managers are reluctant to encourage disclosures about agency abuses or inefficiencies. "Institutionally we find managers thinking they're going to advance by protecting the status quo at all costs," she says. ...

Much of the rhetoric around whistleblower protection is framed in a good-versus-evil narrative, with advocates touting the need to protect noble employees who have done the right thing. But perhaps it's the more practical reality that will motivate managers and senior leaders. If supervisors are willing to accept constructive notification of internal failures, then they can protect themselves and their agencies from the public relations disasters that follow disclosures to oversight agencies, Congress, the media or websites willing to publish the information.

GAP: Chambers Case Highlights Limitations of Whistleblower Laws

The Government Accountability Project suggests that the reinstatement of Park Police Chief Teresa Chambers, far from being a "good guys won" story, demonstrates the need for serious statutory reform:

Chambers, who was:

a.) clearly on the right side of the law
b.) engaged in this legal battle full time
c.) enjoyed widespread national, relatively favorable media coverage
d.) enjoyed nationwide support from concerned citizens, and
e.) had another full time person working with her on her battle (her husband)

is finally receiving justice after seven years.

That's 84 months, or over 2,500 days. Knowing this, do we really expect lesser-known federal whistleblowers, with limited time and resources to devote to mounting a legal campaign, to stand a shred of a chance to receive justice?

Former OSC Head Facing Jail Time?

BLT (Blog of Legal Times) reports:

Scott Bloch, the former head of the Office of Special Counsel, must serve at least one month in prison on the charge of lying to Congress, a federal magistrate judge in Washington said in a ruling published Wednesday evening.

More.

Davidson on Contemporary Whistleblower Status

Joe Davidson's Washington Post Federal Diary Column recently observed:

Under [current MSPB Chair Susan Tsui] Grundmann, the board "made more progress toward protecting the merit system than in any other year since it was created by the Civil Service Reform Act of 1978," said Tom Devine, legal director of the Government Accountability Project, a whistleblower advocacy organization. "It issued landmark precedents that restored its authority to enforce the merit system. It reversed a decade-long trend of ruling against whistleblowers."

Four whistleblower victories in 2010 were one more than the total for the previous decade, Devine said. ...

Although things have improved for employees with the current MSPB, the Office of Special Counsel and administrative judges, who also consider whistleblower cases, continue to steam worker advocates. Administrative judges, Devine said, "continue routinely to rubber-stamp agency reprisals [against whistleblowers] through expansive readings of federal circuit loopholes that have gutted the Whistleblower Protection Act."

More on Park Police Chief Reinstatement

Joe Davidson, the Washington Post's Federal Diary columnist, has additional views on the whistleblower reinstatement story reported here Wednesday in a column entitled "A victory for former Park Police chief might not be a victory for whistleblowers": 

PEER's executive director, Jeff Ruch [was] of course, delighted with the decision. "A resounding victory," Ruch called it. "It was a 'wow' decision that I think is unappealable." But he warned against overstating its importance. Ruch, who made the "false beacon" remark, said other whistleblowers, in less prominent cases with fewer resources, are unlikely to prevail. "She and her husband basically put together a resistance movement," Ruch added, "and we became her guerrilla army."

MSPB Reinstates Fired Chief of Park Police

The Merit Systems Protection Board has reinstated Teresa C. Chambers, former chief of the U.S. Park Police who was fired in 2003 for complaining about staffing shortages in her organization. A Washington Post item has more information.

Money Not Primary Whistleblower Motivation?

A Wall Street Journal item suggests that in the corporate context, money may not be a key whistleblower motivation.

Unknown Senator Kills Whistleblower Bill

The Whistleblower Protection Enhancement Act passed unanimously in the House, but failed in the Senate. The Government Accountability Project was not pleased.

Whistleblower Protection Enhancement Act Advances

Federal Times reports that the Senate has passed S 372, the Whistleblower Protection Enhancement Act.  POGO blog has information on a new MSPB report that demonstrates the need for reform.

POGO on Marine Corps Whistleblower

A POGO blog post provides a summary of the case of a Marine Corps whistleblower.  The Washington Post also covered the story.

Labor IG Raps OSHA Whistleblower Program

Deficiencies in OSHA's whistleblower protection program were described in a Department of Labor audit.

Catching Leakers Difficult

Fedblog comments on a Washington Post article about the difficulty of prosecuting government employees who leak national security secrets to the media.

Watchdog Groups Object to Probation for Former OSC Chief

Watchdog groups are arguing that probation is too light a sentence for former Office of Special Counsel chief Scott Bloch. A letter by Debra Katz to the magistrate who accepted Mr. Bloch's guilty plea to criminal contempt of Congress is available at the Legal Times website. The Washington Post also had a story about the matter.

Time To Mend the Whistle?

The Government Accountability Project's Tom Devine makes the case for major whistleblower protection reform in a Washington Post Op-Ed piece today. Here is an excerpt:

The agencies serve as judge and jury of their conduct, with no independent review. No wonder it can seem less risky to employees to leak anonymously to the media than to tell what they know to the agency officials who need the information. 

Worse, shooting the messenger undermines our nation in the fight against terrorism. The Sept. 11 commission report showed that information bottlenecks within government were a major contributor to America's vulnerability.

Guide for Whistleblowers

A new book is available from the Project On Government Oversight:

Three national nonprofits have joined forces to help public employees who blow the whistle on waste, fraud, or abuse by releasing a how-to manual, The Art of Anonymous Activism: Serving the Public While Surviving Public Service. Citing the increased dangers of whistleblowing, the support groups hope the guide will allow more public employees to come forward while avoiding retaliation from agencies seeking to hide their foibles and corruption.

The first chapter is available at no cost.

IGs & Whistleblowers

The Washington Post's Federal Eye columnist discusses a controversial conclusion of a non-profit watchdog group's report:

"It has long been POGO's experience, as well as that of many whistleblower attorneys contacted by POGO, that generally IGs are at best irrelevant to whistleblowers and at worst are part of the problem."

Whistleblower Reforms at FAA

The Dallas Morning News has a report on the FAA's effort to better deal with whistleblowers and whistleblower reports. A related Washington Post story has more information.

OSC Activity

The Office of Special Counsel has posted several new press releases at its website, on topics including but not limited to the following:

 

PR09_11-- A Hatch Act complaint about a supervisor at DIA attempting to influence his employees in the 2008 Presidential election.

 

PR09_10-- An OSC finding that the Department of Transportation was derelict in failing to respond to aviation safety allegations.

 

PR09_09-- A Hatch Act complaint against a USPS employee for running in a partisan political election last fall.

 

PR09_06-- A Hatch Act complaint against a VA doctor for using his position to influence the 2008 Presidential election.

Whistleblower Ruling Stirs Controversy

Joe Davidson's Washington Post Federal Diary column examines a controversial MSBP decision. An excerpt:

Until Congress acts, the Whistleblower Protection Act is dead," said Tom Devine, legal director of the Government Accountability Project. "The MacLean decision means government agencies can fire employees for any disclosure otherwise protected by the WPA. The decision reduces the WPA to a voluntary guideline that agencies can cancel at will by issuing blanket gag regulations."

But Devine and other advocates, including those in Congress, aren't willing to let the law pass away peacefully. Rather than grieving, they are using the decision as evidence in their long battle to pass stronger whistleblower protections.

More views from Government Accountability Project are available.

Whistleblowers Seek Jury Trials

Joe Davidson's Federal Diary column examines Hill efforts to expand whistleblower protection. An excerpt:

Whistleblowers need "full access to court to enforce their rights through a jury trial," said Tom Devine, legal director of the Government Accountability Project.

But the Obama administration, which is generally sympathetic to whistleblower rights, has not embraced the concept of jury trials to protect those rights. When Rajesh De, a deputy assistant attorney general, testified before the House, his testimony was notable for what it didn't say about jury trials.

"So far, the administration seems glued to the fence on that issue," Devine said.

FAA Whistleblowers Blog

The FAA Whistleblowers blog provides a different perspective. As the tagline states: "This blog has been created by, for, and about FAA Whistleblowers. Come in and read about the individuals who have put it all on the line by making safety disclosures which placed their careers in jeopardy."

New Whistleblower Protections in the Works?

Joe Davidson reports in his May 1 Federal Diary column that a bipartisan group of legislators is asking the President to issue an Executive Order protecting whistleblowers.

Meanwhile, two whistleblower bills are showing signs of possible life:

• S 372

• HR 1507

All Things Whistleblower

The Government Accountability Project's All Things Whistleblower provides detailed information about whistleblower issues. Like most blogs, it provides an RSS feed, making it easy to keep track of new developments. If you are not yet using an RSS reader, the RSS-to-E-mail conversion services many use to monitor the IEC Journal will work equally well for All Things Whistleblower.

Stimulus Bill Omits Whistleblower Protection

This morning's Federal Diary column discusses the omission of expanded whistleblower protection from the stimulus bill.