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 firstname.lastname@example.org.