Neil McPhie is Director of Legal Services for Tully Rinckey PLLC.
When the Office of Personnel Management (OPM) in October released the results of the 2014 Federal Employee Viewpoint Survey, there was one very significant statistic the agency failed to highlight: 20.4 percent of federal employees reported they did not believe they could disclose a suspected violation of any law, rule or regulation without fear of reprisal. That marked the highest percentage of respondents (in the weighted results) who said they could not blow the whistle without fear of retaliation since the first such survey, originally known as the Federal Human Capital Survey, in 2002.
It is ironic that less than two weeks after OPM released this survey, the U.S. Supreme Court heard oral arguments for DHS v. MacLean – the first federal whistleblower case ever to be heard by the high court. It is no wonder why more federal employees are fearful of retaliation for blowing the whistle on wrongdoing in the government. Here you have the government fighting to water down the protections provided to employees under the Whistleblower Protection Act of 1989 (WPA).
In DHS v. MacLean, the agency is trying to justify its removal of a federal air marshal, Robert J. MacLean, who blew the whistle on plans to reduce security coverage on overnight flights amid a period of heightened security prompted by a possible terrorist threat. In doing so, the air marshal violated agency regulation by not safeguarding sensitive security information (SSI). The agency has argued that MacLean is not protected by the WPA because it does not cover disclosures “specifically prohibited by law.” So under this reasoning, regulation, which is developed by agencies, is law.
My law firm, Tully Rinckey PLLC, in late September submitted an amicus curiae (“friend of the court”) brief, prepared on behalf of three organizations that employ hundreds of federal employees. The brief identified holes in the government’s arguments – such as how “by law” means statute and case law instead of statute and regulation – and highlights how a ruling in favor of the agency would “erode and eviscerate the sound policies” behind the WPA.
We will not know the Supreme Court’s opinion on this case until next spring. In the meantime, it is important for those federal employees who work in an office in which they fear reprisal for disclosing a suspected violation of any law, rule or regulation, to know that they may be able to blow the whistle on whoever is responsible for creating such an environment. “Harassment or intimidation of other employees may constitute an abuse of authority. A supervisor’s use of his influence to denigrate other staff members in an abusive manner and to threaten the careers of staff members with whom he disagrees constitutes abuse of authority,” the Merit Systems Protection Board (MSPB) said in an opinion I co-authored for Pasley v. Department of the Treasury (2008).
Federal employees, however, must also be careful about believing a fear of reprisal allows them to avoid the person of authority behind this temerity. In Dunbar v. U.S. Postal Service (2008), an MSPB judge affirmed the removal of the appellant, a customer service supervisor, who was removed for being absent without leave and failure to maintain regular attendance for a month and a half. The appellant tried to justify his absence saying it was “for my protection to avoid retaliation per letters to bosses.” These disclosures related to alleged but unreasonably believed wrongdoing. The MSPB judge found the appellant’s “vague and speculative worries of future job harassment at the hands of…[his supervisor]fall far short of the type of objective evidence that a reasonable person would believe might subject him to retaliation in the form of harassment or a hostile work environment.” The Board, while I was chairman, affirmed the MSPB judge’s decision.
Fear has a way of clouding a person’s judgment. That is why federal employees who fear reprisal for blowing the whistle should consult with an attorney to determine the best course of action. Hopefully, in a few months’ time, the Supreme Court will deliver a decision for DHS v. MacLean that assuages these fears.
Neil McPhie is the Director of Legal Services for Tully Rinckey PLLC and the former chairman of the U.S. Merit Systems Protection Board. He concentrates his practice in federal sector employment and labor law and can be reached at info@fedattorney.com.
4 Comments
In Robert’s case the law wasn’t broken until they changed the classification. If the SC rules against Robert there will be no more whistle blowing for obvious reasons.
Glad to see Mr. McPhie has had a change of mind. However, he should have disclosed it was his decision as the Chairman of the MSPB that affirmed MacLean’s removal in 2009.
http://whistlewatch.org/2014/12/former-chairman-of-mspb-sees-error-of-his-ways-in-ruling-against-whistleblowers/
[Text of article]
I’ve often wondered if those in high level decision-making capacities (including lawyers), have a guilty conscience since they know they are part of a conspiracy to violate employee protection laws. I also wonder if they hear their inner voice telling them not to take part in harm to others. And I wonder if they abandon basic ethical and moral norms for money and position to justify their decisions when they fully know they’ve just cut short the careers of those who exhibit courage to tell the truth about fraud, waste, mismanagement, abuse of authority and dangers to public health and safety.
Well, I don’t have to wonder any longer because a key decision maker who played a significant role in aiding the federal government in whistleblower retaliation against their own employees has emerged from a crisis of conscience coma. Former chairman of the Merit System Protection Board (MSPB) Neil McPhie published an article yesterday concerning the Robert MacLean v. Department of Homeland Security (DHS) case.
The title of McPhie’s article “Federal Employees Have Nothing to Fear but Their Agencies” is bothersome because it was his decision to rule against MacLean in 2009, thus, affirming agency removal of a man who alerted the public that air marshals would not be aboard domestic flights post 9/11. Air marshals flights were cancelled due to financial mismanagement of the agency which left the flying public exposed to terrorists being able to board planes. Congressional outrage halted the ill-conceived plan by the Transportation Safety Administration (TSA) due to MacLean’s protected whistleblower disclosures. MacLean made the disclosure in 2003. He was removed from federal service in 2006.
In the 2009 ruling by the MSPB, McPhie declared “Based upon the foregoing, we find that a disclosure in violation of the regulations governing SSI, which were promulgated pursuant to 49 U.S.C. § 114(s), is ‘prohibited by law’ within the meaning of 5 U.S.C. § 2302(b)(8)(A) and thus cannot give rise to whistleblower protection.” That decision by McPhie and Mary Rose, Vice Chairman cast MacLean into an extra 4 years of litigation hell until a win last year that became the basis of the government’s refusal to acknowledge the Court of Appeals ruling which led to the certiorari request.
It appears the former chairman of the agency that supported whistleblower retaliation by federal agencies has had a change of mind and heart seeing the error of his ways. Or maybe it’s the change of income stream to setting up shop as a whistleblower protector from the federal government because he’s done a 180 declaring; “Here you have the government fighting to water down the protections provided to employees under the Whistleblower Protection Act of 1989 (WPA).”
I’m glad McPhie is supporting MacLean of late, but don’t understand how he justifies the flip-flop. Did he think no one would notice it was his decision that single-handedly aided the agency in sustaining the removal of MacLean, leaving the whistleblower jobless, unemployable, with a wife and 2 small children to support. Meanwhile McPhie retired from federal service with a full pension to go on to be a partner in a D.C. law firm. That pension must be cold comfort knowing you’ve stripped MacLean of his.
Crisis of conscience coma or awakening of altruism, McPhie, in my humble opinion, made an admittedly bad decision in 2009 and poor choice to publish an article about the MacLean case without fully disclosing to the public that he aided agency retaliation and the firing of hundreds federal whistleblowers. One could also attribute direct and indirect harm to the American public by McPhie because as he so aptly pointed out in his article that whistleblowers “said they could not blow the whistle without fear of retaliation.” It was his work as a federal employee that caused the fear.
No kidding Mr. McPhie-Did that revelation about federal employees fearing retaliation just come to you yesterday? If so, apparently you weren’t reading the briefs by appellants who cried for help at the MSPB level as they lost their jobs, their homes, their families and could not find paid work again because their employment records were falsified with trumped-up charges of insubordination or failure to follow an order or disclosed bad management decisions that led to dangers to public health and safety… If McPhie wants to help the cause now, he might represent whistleblowers reverse the damage urging the MSPB to reopen cases citing the Whistleblower Protection Act (WPA) was willingly ignored under his watch with all costs going to the appellants.
There are costs associated with a crisis of conscience and a lack of moral integrity to society. Direct costs to the whistleblowers like losing their livelihoods and indirect costs such as children of whistleblowers not being able to go to college because their parents are bankrupt. And there are costs to tax payers for needless government litigation that lingers for years. Part of those costs are 3 federal agencies that handle federal service employee cases of discrimination and retaliation; OSC, MSPB and the EEOC for the federal sector. And the overburdened courts which have to hear these cases that clearly show whistleblower retaliation and violations of civil rights.
Then there are several federal agencies which in large part exist because of whistleblowers including the SEC, the CFPB, OSHA, and many departmental OIG’s including HHS, DVA, DoD and DOJ where civil rights should be sacrosant. If federal agencies discourage following your conscience, fraud is afoot in financial markets. A drug labeled for an adult will kill a child when the manufacturer disregards the FDA approvals. And a terrorist will board a plane because they know no federal employee is going to speak up because they live in fear of pointing out a problem and suffering whistleblower retaliation.
It’s time we all examined our conscience and listened to our inner voice that whistleblowers are protecting us thus they deserve to be protected. Whistleblowers are part of our heritage as Americans and those that speak truth to power represent our collective social consciousness. We must review whether we are part of the retaliation problem or part of the employment rights protection solution. The Supreme Court should rule in MacLean’s favor and help heal a country that has been ethically challenged mainly because our government as employer role model lacks leadership with a conscience.
In the interest of full disclosure, the author filed a whistleblower retaliation case at MSPB in 2008 and sought redress from the full Board in 2009. The case was settled.
McPhie’s role in whistleblwer retaliation requires wider distribution. Further, MSPB AJ’s continue to misinterpret the WPA and the 2012 WPEA.
I understand the deadly consequences of injustice at MSPB having been a victim of retaliation from an IRS manager after questioning him on his mixing me up with another of his employees in my evaluation (manager has long history of mixing up his employees and has no idea who he’s even talking to half the time – acted as if he was on drugs, and was actually removed from his management position for 5 years for similar abuses back when IRS management was not corrupt – in fact, same abuses continue to this day). I don’t know how these lawyers and judges can live with themselves; the whole legal system needs to be thrown out since it just doesn’t work since the judges won’t hold agency management accountable, and both MSPB and IRS need to be eliminated since the corruption is killing people. Lawyers deserve the horrific reputations they earn taking huge fees from those whose salaries and retirements (and thus their union rights and all means of defense ripped from them, along with their souls), and I now know that judges are no better than lawyers having been a victim of an MSPB judge who falsely claimed MSPB had no jurisdiction and falsely told me I had no other choice than to take the unfair settlement (even while agreeing it was IRS management who was clearly in the wrong).