Scrutinize disciplinary actions involving possible whistleblower disclosures
By Anjali Patel, Esq., cyberFEDS® Legal Editor Washington Bureau
Key points:
- Whistleblower cases may increase with uptick in adverse actions like removals
- HR should closely evaluate actions involving protected disclosures
- What are called 'leaks' may be legal protected disclosures
IN FOCUS: Even with the administration trying to take steps to curtail what it is calling information leaks, "a lot of meaningful and legal whistleblowing is still happening," so agencies must take extra care to avoid retaliation, Debra D'Agostino, a founding partner of The Federal Practice Group, told cyberFEDS® in an exclusive interview.
At the same time, the administration seems to be pushing through a significant number of removals, especially at agencies like the Department of Veterans Affairs, and D'Agostino said she has seen agencies taking "a more brazen approach" to pursuing discipline against individuals who have made protected disclosures.
While agencies should never let employees get away with misconduct, regardless of whether the employee made a protected disclosure, HR "should give that situation extra scrutiny, very closely evaluate the evidence, and advise management appropriately," D'Agostino said. Don't "let management just carry out something that any reasonable person would perceive as retaliation, because it probably is retaliation." She further explained that even though HR's role is to execute management's requests, HR also serves as an advisor to management and therefore is "the first control against retaliation."
D'Agostino urged both agencies and employees to be aware of the following when handling whistleblower disclosures:
- Be cautious about using the term "leak." Previously, when people spoke about an information "leak," they were generally referring to an illegal disclosure of classified information, but today "leak" and "leaker" are being used much more broadly to encompass legal whistleblower disclosures of fraud, waste, or abuse, she said. Under the Whistleblower Protection Act, there are disclosures that are considered protected by the law, and some that may not be, but that does not necessarily mean that an unprotected disclosure is a "leak" for which the employee can face discipline. Agencies should be cautious about warning employees against making "leaks" or describing disclosures as "leaks," as those actions in themselves may be prohibited and illegal under federal law.
- Protection applies when information is properly disclosed. Potential whistleblowers should think about the "mechanism" for the disclosure. Most federal employees have several options to make protected disclosures, including through their own chain of command or by going to the agency inspector general, the U.S. Office of Special Counsel, or the House Committee on Oversight and Government Reform. Making a disclosure to the media may also be protected, but before going to the press, employees "should make extra-extra sure that the information can be lawfully disclosed to the press.
- Classified information. "It's always going to be illegal to disclose classified information, but there is a whole lot of information that is unclassified but is marked sensitive, which can be confusing," D'Agostino said. Before acting, employees should ensure that a disclosure is protected by whistleblower laws and not an illegal release of classified information.
- Disclosures by intelligence community employees. The intelligence community does not have the same rights as other federal employees, as they are specifically excluded from the Whistleblower Protection Act that makes retaliation against most federal employees illegal. Instead, employees of intelligence agencies must follow the procedures outlined in the Intelligence Community Whistleblower Protection Act to make disclosures. If they go outside these prescribed channels, they can be subject to discipline and the disclosure will not be considered protected, D'Agostino said. Also, while Presidential Policy Directive 19, or PPD-19, prohibits retaliation against intelligence community whistleblowers, these employees do have a neutral complaint process from which to seek relief, like most civil servants have through OSC.
- Protected disclosure. Even though a complaint about the appearance of wrongdoing can be protected if the complaint was perceived as a protected disclosure, D'Agostino advised making sure that the disclosure qualifies as a protected fraud, waste, or abuse complaint. Employees should also ensure that the wrongdoing satisfies any threshold requirements for protection. For example, misusing 50 dollars of agency funds for a pizza party is not something that is protected because waste has a de minimis requirement for protection, she explained. D'Agostino also pointed out that many whistleblower complaints are not being settled right now because some agencies are requiring approval from a much higher level than was previously required and many senior official positions are still unfilled.
D'Agostino also pointed out that many whistleblower complaints are not being settled right now because some agencies are requiring approval from a much higher level than was previously required and many senior official positions are still unfilled.
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