By William Wiley, November 1, 2017
Let’s say that you’re a big Capitol Hill policy maker; Member of Congress, Senator … take your pick. Then, let’s say that you want to add extra protections for your beloved whistleblowers. You want to make it easier for management officials who mistreat whistleblowers to be suspended and fired from government. You don’t think that the management official’s employing agency has been doing enough, that upper management at the agency does not act to discipline individuals who have mistreated whistleblowers. So, what do you do?
An easy answer is that you find somebody other than the employing agency to do the disciplining. An outside agency, unlike upper management, does not have a dog in the fight. When you look around for another agency, you find one that routinely has to decide whether prohibited personnel practices (PPPs) have occurred. As whistleblower reprisal is an obvious prohibited personnel practice, you might consider having this agency do the disciplining.
But wait! You come to realize that just last month, that same agency had been ordered to cough up a half-million dollars in attorney fees in a PPP case that it had prosecuted. It had proposed the removal of a management official based on eight charges, each an incident in which this outside agency had believed that it had preponderant evidence that the PPP had occurred. On review, the judge ruled that this outside agency had failed to present ANY evidence that ANY of the charges could be affirmed. The judge went beyond simply ordering fees, and criticized the outside agency’s theory that it put forward in support of its prosecution:
- Guilty people usually deny their guilt,
- The manager being prosecuted denied her guilt,
- Therefore, she must be guilty.
It might not be a good idea to put that outside agency in charge of proposing discipline of a manager for reprising against a whistleblower. That agency has demonstrated in a very public manner – and at least one judge has concluded – that it does not know how to prove a charge (something we have taught for 20 years in our FELTG seminars). Probably best to look elsewhere for a removal-initiator based on suspected whistleblower reprisal.
If you have reached this conclusion, then you now have one more reason that you will not fit in on Capitol Hill. In a bipartisan piece of legislation, Congress unanimously passed, and the President signed in to law, a bill that this outside agency – let’s call it the Office of Special Counsel – should have the authority to:
- Conclude whether whistleblower reprisal has occurred, and
- Order the employing agency to propose a suspension, then removal for a repeat offender.
Keep in mind that OSC was created in large part to protect whistleblowers from reprisal. Therefore, it has a strong motivation to find whistleblower reprisal. By doing so, it makes Congress happy, and Congress tends to fund agencies that make it happy. With no impartial review, under this most recent bill OSC will have the authority to order an agency to propose a minimum three-day suspension for a first offense of mistreatment of a whistleblower, and termination for a second offense.
Are you thinking that this is crazy? Well, don’t stop me now because I’m just getting rolling.
In a rational world, if OSC found what it believed to be whistleblower reprisal, it would propose discipline to a judge at MSPB, and the judge would adjudicate whether the charge was affirmed and the penalty was reasonable. This is what OSC has been doing for four decades. Under this new legislation, instead of initiating proposed discipline and standing to win or lose when MSPB issues a decision on the proposal, OSC simply orders the employing agency to propose the suspension/removal. The decision regarding the proposal will then be made by a senior manager in the agency, an agency that may well not believe that whistleblower reprisal has occurred. If the agency’s deciding official does indeed conclude that removal is warranted, then it’s the agency – not OSC – that has to devote its resources to defending the removal before MSPB. As icing on the cake of judicial irrationality, it appears from a cold read of the bill that the burden in one of these removals is on the manager to prove he did not reprise, not on the agency to prove that he did.
Here at FELTG, we sincerely regret that OSC lost a prosecution that resulted in it being ordered to pay a good chunk of its annual budget as attorney fees. Those are wasted tax dollars and a harmed management official that do nothing to help us have a better government. However, this legislative trick of having OSC order an agency to take the heat by directing the agency to do the disciplining, regardless of the agency’s independent view of whether discipline is warranted, is ridiculous.
Here are the details of this mess. The new legislation is named the “Dr. Chris Kirkpatrick Whistleblower Protection Act of 2017” and empowers IGs, MSPB, and an assortment of judges to require that agencies propose the discipline of whistleblower reprisers. The decision that orders OSC to pay a whole bunch of money as attorney fees is Coffman v. OSC, CB-1215-14-0012-A-1 (September 29, 2017).
As they say in the poker business, “Read ‘em and weep.” [email protected]