In healthy workplace environments, whistleblowers are looked at as someone who caught an error or misdeed that can and will be corrected. In toxic workplace environments, whistleblowers are targeted. Regardless of your workplace environment, if you are someone you know is planning to speak out, it is important to craft your disclosure to maximize your legal protections while increasing the odds that the actual problem is addressed.
Most federal whistleblowers may fight retaliation using the Whistleblower Protection Enhancement Act. This legal process involves filing a complaint with the Office of Special Counsel. The OSC will either assist directly or give the whistleblower the option to take their claim to the Merit Systems Protection Board. The MSPB is a quasi-executive agency where administrative judges hear whistleblower claims and challenges to disciplinary actions like removals, demotions, and suspensions for more than fourteen days.
Unless the whistleblower is a government attorney working on these types of cases, chances are they are not familiar with the technical requirements in the Whistleblower Protection Enhancement Act. Some of the administrative judges on the MSPB put extreme emphasis on these technical requirements to the detriment of whistleblowers.
Before I discuss these requirements, a quick word of warning. Every workplace situation and disclosure are unique. It is strongly recommended that any federal employee who wants to disclose wrongdoing consult a federal employment attorney prior to taking action. Not only can we make sure the disclosure itself maximizes protections, but most firms that focus on federal employment do a lot more than simply drafting complaints and showing up at hearings. For example, if you choose to speak with the attorneys at Solomon, Maharaj, and Kasimati, we may recommend that you send the disclosure through your chain of command, but we also may advise that your disclosure is better suited for a Congressional inquiry or even a newspaper or media. Further, a good federal employment attorney has a good feel for when the disclosure should be written sensitively in a way that can get the message out without prompting retaliation, and when it is better to blow the whistle as loudly as possible to maximize protections.
There are two primary ways that your disclosure can fail to provide protections. The first reason, which is more nuanced than some may think, is the combined consideration of the agency official’s knowledge and the timing of the disclosure relative to any actions taken. Put simply, the agency official cannot have retaliated if they were not aware of your whistleblowing at the time they took action. Further, if the agency official takes action against a whistleblower and claims it is for some other reason, the OSC and MSPB are less likely to believe the action was retaliatory if it occurred several years later.
As far as knowledge, the important to emphasize is documentation. Though this may shock the sensibilities of ethical federal employees, we have found that the same types of people that retaliate against whistleblowers are the kinds of people who are comfortable lying and/or conveniently misremembering private office discussions. Management officials will often deny they knew about the disclosure, or will lie and say that they actually brought up the need for a proposed disciplinary action in an unrecorded meeting at some point before the disclosure was made.
To avoid convenient misremembering, document disclosures in writing. This can be tricky, as it can feel excessive and uncomfortable to report issues via email, but this can be important. The other thing to remember is whistleblower disclosures are protected, but rude wording is not. It is easy for the victim of an abusive manager to lose their temper when reporting them in an email, but be sure to write the email as though it will someday come before an administrative judge.
There are also things the whistleblower can do to maximize their protection based on timing. For disclosures that are not particularly time sensitive, it may be prudent for relatively new employees, as well as employees with new rating officials, to file their disclosure after receiving a positive mid-term or yearly performance appraisal. One of the things the OSC and MSPB will do is compare how the employee was treated before the disclosure to how the employee was treated after the disclosure. If the employee receives high praise on their yearly performance appraisal, submits their disclosure, and then receives a proposed disciplinary action that paints the whistleblower as a bad employee, then the agency’s reasons are highly suspect.
The other primary reason that whistleblower disclosures fail to receive protection is that they are perceived as disagreements with management officials rather than meeting the often-unforgiving requirements of the Whistleblower Protection Enhancement Act. The five categories of protected activity are:
Violation of a law, rule, or regulation;
Gross mismanagement;
A gross waste of funds;
An abuse of authority; or
A substantial and specific danger to public health or safety.
Unless you have a federal employment attorney to review your disclosure, do not assume you can rely on anything besides the first category—violation of law, rule, or regulation—unless the wrongdoing is so plainly egregious.
The word “gross” was actually added to the law because Congress decided the OSC and MSPB should not be analyzing routine management decisions. Even if your supervisor approves a purchase order where the agency pays $30,000 for goods you can find for $20,000 on Amazon, this likely would not be considered a "gross" waste of funds.
Similarly, “abuse of authority” has a much more specific meaning within the law than a typical reader would assume. Abuse of authority typically relates to an official abusing their position to give a financial or other employment benefit to themselves, a relative, or a close friend.
Regardless, in most cases, anything that is protected by any of the last four categories most likely violates a law, rule, or regulation. In order to gain protections, one of the best things you can do is actually cite to laws, rules, or regulations when making your disclosure. Though some OSC attorneys and MSPB administrative judges are more generous to whistleblowers, citing to specific laws, rules, and regulations is the only way to satisfy some of the more critical administrative judges and make it clear that your complaint classifies as a whistleblower disclosure and not just a general grievance.
For example, consider a hypothetical whistleblower. The whistleblower is a nurse for the VA and believes that nurse under-staffing has led to patient neglect. Recently, one of these patients passed away, and though their death was likely inevitable, there is a small chance that the patient could have been helped if a nurse had been more closely monitoring the patient.
Consider the following four hypothetical disclosures:
In an email, the whistleblower writes, "I am concerned about under-staffing issues. There are not enough nurses to monitor the patients and, if there had been, there is a possibility that the patient’s death could have been prevented." If this disclosure went before the MSPB, there would be a discussion of the government’s limited resources and this likely would not rise to the level of gross mismanagement or a substantial or specific danger to public health or safety.
In an email, the whistleblower writes the same disclosure as above in (1), but continues, "I looked for guidance and VHA Directive 1351 sets the amount of nursing hours that are required for each patient. Based on my review of the schedule, we appear to be far below the minimum requirement. The directive also mentioned that 38 U.S.C. § 8110 mandates that the VA sets and follows minimum staffing requirements, so I believe we are out of compliance with that law as well. Obviously the first concern is patient care; I would really appreciate an update on what is going to be done as soon as possible." The whistleblower explains that the under-staffing is against the law, demonstrates that they care about the patient, and avoids using unnecessarily confrontational language. The disclosure has much stronger legal protections, and if this ends up in front of an administrative judge, the email paints a clear picture that this is a selfless whistleblower worthy of protection.
In an email, the whistleblower writes, "You are an incompetent manager and the patient's death is on your hands. You need to get off your a** and hire more nurses as required by 38 U.S.C. § 8110 and VHA Directive1351." Though the whistleblower made a disclosure, they did so in a way that tends to show they are a discourteous employee who had preexisting issues with management. If their manager were to take disciplinary action, the administrative judge could assume that it was taken for the employee's demeanor and the preexisting tension, and not for whistleblowing activity.
The employee meets with their manager behind closed doors and discloses everything discussed in (2). In the administrative appeal, the manager says that they remember the meeting, but the whistleblower was just complaining about being overworked and asked for someone to cover their shift so they could meet a friend for drinks. This case likely goes nowhere.
Though many whistleblowers receive the respect they deserve, others are subjected to harassment and reprisal. Just because whistleblowing is an inherently selfless act does not mean that whistleblowers should neglect their own interests. If anything, crafting a disclosure in a way that demonstrates an understanding of the Whistleblower Protection Enhancement Act can shift the power dynamic in the whistleblower’s favor and increase the likelihood that management takes the disclosure seriously.
Once again, if you are considering making a disclosure or have already made a disclosure, it is recommended that you contact a federal employment attorney. Call Solomon, Maharaj and Kasimati at (813) 497-7650, or email info@smkfirm.com.
-James Solomon
Comments