By Dan Gephart, March 3, 2020
Louis Lopez, Associate Special Counsel, Investigation and Prosecution, Office of Special Counsel
Last week, the “Make it Safe Coalition” sent a letter to Congressional leaders with this ominous warning: The Whistleblower Protection Act “is at a severe risk of complete breakdown” and “on the verge of paralysis.”
The coalition is made up of several organizations, including the Project on Government Oversight and the Government Accountability Project, and they blamed the Senate for not acting on at least two of the three Merit Systems Protection Board nominees placed before them. Two members on the now currently member-less board would provide the quorum needed to act on the expanding backlog of more than 2,500 cases that have been piling up over the last 3-plus years.
“This means the Office of Special Counsel cannot seek stays for temporary relief against retaliation. When employees prevail after administrative hearings their victories remain indefinitely in limbo while agencies petition for review by a nonexistent Board. This is unprecedented,” the coalition wrote.
Regular FELTG Flash and Newsletter readers know how concerned we are about the lack of a quorum at the Board. The Office of Special Counsel is concerned, too, according to Louis Lopez (pictured above). As the Associate Special Counsel, Investigation and Prosecution at OSC headquarters, Lopez oversees cases brought under the Whistleblower Protection Act, the Civil Service Reform Act, the Hatch Act, and USERRA.
“Yes, OSC is concerned for a couple of reasons,” Lopez explained. “First, as Special Counsel Henry Kerner has publicly stated, without any board members at MSPB, ‘OSC is unable to fully protect federal employees who have been retaliated against or were subjected to unfair personnel practices.’
“For example, OSC is unable to obtain formal stays of problematic personnel actions from the Board at this time. Second, and equally important, MSPB reports a rising backlog of whistleblower and other federal employee appeals that cannot proceed to final adjudication until the Board has a quorum. Regrettably, these delays often cause further economic and emotional harm to whistleblowers and other federal workers who have cases pending with MSPB.”
Based on the questions we’ve been receiving from attendees at our onsite training over the last few months, there is a lot of interest and concern about whistleblower laws these days. And there is a little confusion, too.
So we reached out to Lopez for answers. Lopez has had a distinguished federal career, working for the Department of Justice, the Equal Employment Opportunity Commission, and the Federal Bureau of Investigation before moving onto the OSC. He worked in the private sector for law firms in DC and Chicago and at Washington Post Digital. Lopez has also taught advanced courses on labor and employment law at Georgetown University.
Some of the questions we received in class dealt with whistleblowers in the intelligence community. The OSC does not have jurisdiction over whistleblowers in the intelligence community, so we could not address that here. Answers to some questions are dependent on facts we don’t know, so we greatly appreciate Lopez providing this guidance.
DG: We get a lot of questions about a whistleblower’s motive. Does a whistleblower’s motive matter? What if they’re just trying to get someone in trouble?
LL: Under the statute, a whistleblower’s motives, characterized as good or bad, for making the disclosure should not matter.
DG: What if it turns out the whistleblower is wrong and there was no waste, fraud or abuse happening, they just thought there was?
LL: A whistleblower does not have to be correct about their disclosures under the statute. Rather, they must have a reasonable belief that the wrongdoing occurred.
DG: How does an adjudicator know whether or not a whistleblower has a reasonable belief?
LL: Generally, when assessing the reasonableness of the whistleblower’s belief, the adjudicator will ask whether a disinterested observer with knowledge of the essential facts known to and readily ascertainable by the employee could reasonably conclude that there exists one of the statutory types of wrongdoing. In other words, the adjudicator must determine whether a person standing in the employee’s shoes may reasonably believe, given the information available to the employee, that the disclosed information evidences one of the statutory types of wrongdoing.
DG: Can a whistleblower be guaranteed anonymity?
LL: Whistleblowers are asked to sign a consent statement on the complaint form indicating their preference regarding the disclosure of their identity or circumstances about their case. Release of information from OSC files is governed by the Privacy Act. OSC takes very seriously a whistleblower’s decision to remain anonymous and would make every effort to protect their identity.
DG: If the whistleblower chose to be anonymous, what would the penalty be for a manager exposing a whistleblower to the rest of the staff and/or agency?
LL: For prohibited personnel practice cases, the vast majority of whistleblowers alleging retaliation consent to the release of their identity because it would otherwise be impossible to obtain corrective action in those cases. Regardless of anonymity, a manager’s reaction to a whistleblower’s complaint may be evidence of retaliatory animus or, in an extreme case, even create a hostile work environment. Although rare, OSC will assess these circumstances on a case-by-case basis to determine an appropriate course of action.
[Editor’s note: OSC’s Disclosure Unit is more likely to have a higher rate of anonymous whistleblowers.]
DG: What if the whistleblower is currently on a Performance Improvement Plan, which is nearing its end. Should the PIP be put on hold? Should the PIP be considered separate? Can an agency remove a whistleblower for performance?
LL: A PIP may be considered a threat of a personnel action and, as such, is independently covered under our statute. OSC can investigate an agency’s placement of an employee on a PIP as part of a PPP case regardless of whether a subsequent personnel action occurs. Whistleblowers, like all federal employees, can be removed for poor performance. But OSC’s role in a PPP case is to determine whether an agency’s stated performance concerns about an employee are a pretext for retaliation. Our handling of each PPP case, including how to address an existing PIP, depends on the facts of that case.
DG: What is the one piece of advice you’d give an agency and/or supervisor that would most help them avoid, whether consciously or subconsciously, retaliating against a whistleblower?
LL: Actively develop a culture that treats whistleblowing as a valuable public service. Agency officials often feel defensive when a whistleblower identifies problems under their purview, which can lead to unconscious bias and retaliatory employment decisions. If employees at every level consider whistleblowing an asset to the agency, supervisors are less likely to view raising concerns as a personal attack.
