Indicative of a chilling effect that federal agencies’ retaliatory practices may be having on whistleblowers, the number of new disclosures received by the Office of Special Counsel declined for the first time in four years in fiscal year 2011. According to the OSC’s recently released annual report to Congress, new disclosures in the 2011 fiscal year fell 3 percent to 928.
The federal employment law attorneys at Tully Rinckey PLLC have observed the impacts that agencies’ apparent growing intolerance for whistle blowing is having on the lives of federal employees. This more aggressive approach toward whistleblowers is evidenced by a recent Merit System Protection Board report showing that 21.6 percent of federal employees surveyed in 2010 reported reprisal for whistle blowing, up from 18.7 percent in 1992.
“This is not a matter of bad karma: exposing wrongdoing should not attract wrongful personnel actions. This is a matter of agencies shooting the messenger, who in this case is the responsible and brave federal employee who discloses information about wrongdoing to the OSC,” said John P. Mahoney, a Tully Rinckey PLLC partner and chair of the firm’s chair of the Labor and Employment Law Practice Group.
Based on the cases he has seen, Mr. Mahoney said the controversial e-mail snooping that the Food and Drug Administration has conducted on whistleblowers within its ranks is only the tip of the iceberg. As the charts to the right illustrate, the pace of federal employee disclosures to the OSC had been steadily gaining momentum since the 2006 fiscal year. That trend abruptly ended last fiscal year.
In order to be protected by the Whistleblower Protection Act’s anti-retaliation provisions, federal employees are required to report wrongdoing to specific entities, such as an agency’s inspector general or the OSC. Reprisal complaints involving most adverse actions must first be sent to the OSC.
“Zero-tolerance is a good policy concerning employee drug use, but it’s bad policy when applied to whistle blowing,” said Mr. Mahoney.
If the OSC declines to pursue the matter, or does not act within 120 days of the complaint’s filing, the employee can file an individual right of action, or “IRA,” with the Merit Systems Protection Board. Federal employees interested in blowing the whistle should consult with a federal employment lawyer, who could help them make WPA-protected disclosures, prepare an OSC retaliation complaint, and prepare an IRA and provide representation before the MSPB.