Whistleblowers face challenges to protection under existing law

Monday - 1/3/2011, 10:31am EST

Sharon Roth, Senior Research Analyst, MSPB

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By Jamie Blanco
Digital News Writer
FederalNewsRadio.com

The Merit Systems Protection Board has released a new report on the challenges facing federal whistleblowers under current laws. The report lays out the "series of hoops" that federal employees have to jump through before they qualify for protection from the Board.

Sharon Roth, senior research analyst at MSPB, told Federal News Radio, "A lot of times it can be just one tiny little step, but if you miss that one step, simply under the law, we don't have the authority to be able to help the individual."

With the failure of the lame duck Congress to pass the Whistleblower Enhancement Protection Act of 2010, Roth said the report lays out as much information as possible to help federal employees understand and make informed decisions under the current law.

For example, there are specific requirements that must first be met before someone can be considered a whistleblower.

"The first piece is what it is that the individual is disclosing. It has to meet a specific category of wrongdoing set forth in the law. If it doesn't meet one of those categories, right there off-the-bat the Board will not have jurisdiction," Roth said.

The issue being brought forward must be substantive, Roth said.

The federal circuit has stated repeatedly it can't just be a debatable issue of judgement where an individual thinks an agency should have gone one way and the agency makes a judgement call to go the other way. It has to be wrongdoing. There has to be a violation of law, rule or rake, or it has to be a substantial, or specific danger to public safety, or a gross waste of funds, or an abuse of authority. So the smaller judgement calls of , I think my agency should have do something this way, are not going to be protected.

But even after that it matters who the employee discloses it to. Depending on the nature of the disclosure, such as if there's national security secrets involved, the individual is limited in who you can disclose it to. It matters whether or not you are disclosing from the regular course of your duties. If you disclose something from the course of your duties and you disclose it the way you're supposed to do, then oddly enough you are not a protected whistleblower because you are just doing your job. You have to make the report to someone other than the wrong doer. Also, there has to be a personnel action, and not everything qualifies as a personnel action.

Roth said feds must also seek redress through the proper channels.

In order for the Board to have jurisdiction over something as a whistleblower complaint, if there's no other appeals right and it's coming to us as a whistleblower complaint, the individual must, and I can't stress this enough...contact the office of the special council. If the individual hasn't gone to the office of the special council under the law the board simply doesn't have jurisdiction and isn't allowed to hear the merits of the case. So there's a series of hoops that have to be jumped through under the current law.

Roth said the burden of proof lies on the employee during the whistleblowing process. Once the employee meets all the criteria, that burden shifts onto the agency which then must prove, by clear and convincing evidence, whether or not they would have taken corrective action had the employee not come forward.

Roth said the MSPB, which also advises Congress, focused on providing impartial information on the current incarnation of the law to also allow Congress to decided, "What if anything they want to do about the law."