What Government Whistleblowers Can Do
We make our living representing whistleblowers. It’s fascinating work, and not many days go by that we aren’t inspired by the courage of our clients to speak the truth when it would be easier not to, and the determination to stand up for something and to see it through.
We represent mostly whistleblowers under the False Claims Act or the relatively new SEC or IRS Whistleblower Programs. They are usually insiders at private companies that cheat under government programs and contracts.
But there’s another universe of whistleblowers that we want to talk about — the government whistleblower. The federal employee who is aware of something terribly wrong going on at his/her place of work and feels compelled to speak out. What rights and protections do these people have? While they may not be entitled to a “relator’s share,” in most situations, they do have legal protections, most notably under the Whistleblower Protection Enhancement Act (“WPEA”) of 2012.
The issue is a timely one, as the chaotic first weeks of the Trump Administration have seen an unprecedented disruption to the normal functioning of the government. Just look back to the sudden rollout of the immigration order (now stopped by the courts) and think of the airport scenes, the confusion, the changing interpretations from the White House, and so on. It is indeed a very new day.
In this intimidating environment, we know that many federal employees are wondering what to do when they are forbidden from communicating with the public or given an order from a superior that is, in their view, illegal. We hope this article will help.
Silence is not the only option. Look at what’s happened already:
• In the National Park Service, alt government accounts have popped-up to oppose the President’s gag orders relating to climate-change and science, or to correct the President’s misinformation about the crowd size at his inauguration.
• Federal employees at several other agencies, including the embattled E.P.A., began posting similar alt government sites on social media as a result of the President ordering the official agency sites down.
• Over 1000 State department officials signed a “letter of dissent” cable opposing the Executive Order barring immigration from seven predominantly Muslim countries.
• HHS employees rose up in protest and forced the White House to temporarily withdraw its order that the agency cease advertising the deadline to enrolle in Affordable Care Act.
• And most notably, Acting Attorney General Sally Yates notified all Department of Justice employees that as long as she was in charge of the department, it would not defend the President’s travel ban in court.
Sally Yates, as she surely expected, was fired immediately. But the her actions had a powerful impact, reminiscent of the principled stand taken by Archibald Cox and Eliot Richardson during the Watergate crisis.
As these examples make clear, federal whistleblowers — at all levels — can have a real impact in fighting executive overreach. With one party in control of both the executive and legislative branches and an executive acting forcefully and bluntly, the need for government whistleblowers is real.
Blowing the whistle on wrongdoing in government is both part of our national history, and specifically protected under federal law.
I. The History. We have always relied on courageous government employees to come forward and expose wrongdoing by our government. The Continental Congress enacted America’s earliest whistleblower law in 1787, declaring it “the duty of all persons in the service of the United States” to provide information of any “misconduct, committed by any persons in the service of these states, which may come to their knowledge.” The law was prompted by an incident in which sailors and marines serving on board the warship Warren had secretly informed the Continental Congress of wrongdoing – including torturing prisoners of war – by Commander-in-Chief of the Continental Navy, Commodore Hopkins. Hopkins eventually sued two of the whistleblowers, lieutenant Marven and midshipmen Shaw. The Continental Congress, recognizing the importance of their actions and our young nation’s duty to protect whistleblowers, provided funds to successfully defend the suit.
In 1863, President Lincoln urged the passage of and signed the False Claims Act, incentivizing whistleblowers to come forward in response to rampant defense contractor profiteering during the Civil War. In 1986, the statute was amended in substantial ways and has given rise to a bar of lawyers (of which we are proudly members) that has, with the aid of our whistleblower clients, returned tens of billions of dollars to the federal treasury.
In recent years, laws have been passed making it illegal for the federal government to try to silence employees who are speaking out about wrong-doing. These laws will be getting a workout, we predict, in the years of the Trump Presidency.
II. Current Protections. Here are some resources for government whistleblowers, under current law.
Most government employees are protected from retaliation for disclosing violations of laws, mismanagement, waste, abuse or danger to health and safety. Employees are also protected against censorship of scientific research and analysis. Even inaccurate disclosures, if made in good faith, are protected. See the following link for a list of the kinds of employment actions that are prohibited by the Office of Special Counsel – an independent government agency that that looks out for federal whistleblowers. Examples include coerced political activity, nepotism, inappropriate recommendations, abuse of authority, and whistleblower retaliation. The OSC also advises agencies on compliance with whistleblower protections, like the anti-gag rule. See here and here.
Employees who believe they have been retaliated against can file a grievance with their union, or a complaint with the Office of Special Counsel, or an appeal with the Merit Systems Protection Board. Remedies include reinstatement, back pay, and attorneys’ fees. No, you won’t be made rich as a federal employee whistleblower, but you do enjoy substantial legal protections, and vindication can sometimes be its own reward.
In short, “Federal Employees have the right to make disclosures of wrongdoing” and cannot be punished for doing so. The WPEA passed both houses of Congress unanimously in 2012, and makes it clear that speaking up is legally protected activity.
We never say “never” to clients or prospective clients, but it would be very difficult for the President to abolish this law or this agency. He might try to staff it with do-nothing types to weaken it, but it seems highly unlikely that the OCS or the laws it enforces won’t still be on the books for the duration of his Presidency.
No, this is not a normal time. It is a time of risk. There are some things a President can do, and some that he/she cannot do. It is a time for heroes to stand up when the circumstances compel it.
And there is precedent: Shaw, Marven, Ellsburg, Yates. The risks are as real as they always have been, and greater than any time since the 1970’s. The law provides protection, and lawyers of conscience both inside and outside the government are available to help.