By Deborah Hopkins and William Wiley, October 8, 2019
We’ve been reading and hearing a lot lately about whistleblowers, most recently about the Ukraine/Biden/Trump situation. We’re not here to discuss the merits of the complaint about President Trump’s conversation with Ukrainian President Zelensky, and we’re not here to discuss politics. We’re here to clarify that the media and numerous folks in Washington have (yet again) gotten a lot of things wrong in talking about this mysterious intelligence community whistleblower.
In discussions about the whistleblower’s motive for making the disclosure, one of the themes that keeps coming out is, “The whistleblower is a partisan.” Well, guess what? Even if that’s true, it’s irrelevant because when it comes to whistleblowing, the motive does not matter.
That’s right, whether a whistleblower makes the public aware of waste, fraud and abuse because he wants to save the world, or whether he does it to get the President impeached, the law protects him anyway, as long as he meets the legal requirements of whistleblowing.
To be protected a whistleblower must disclose:
- Violation of law, rule, or regulation;
- Gross mismanagement or gross waste of funds;
- Substantial and specific danger to public health or safety; or
- Abuse of authority.
While there is statutory protection and a Presidential Policy Directive (PPD-19) that covers whistleblowing by intelligence community employees, the Whistleblower Protection Act and the Whistleblower Protection Enhancement Act cover a large group of employees in the federal sector non-intelligence communities. That’s what we’ll discuss here today, because these are the statutes that apply to most FELTG readers. [Editor’s note: House Democrats Ted Lieu (Calif.) and Don Beyer (Va.) recently updated and released a whistleblower guide for federal employees that you may find of interest.]
Let’s start with a little history lesson. Following the implementation of the Civil Service Reform Act (CSRA), a whistleblower’s disclosures were not considered protected if the employee’s “primary motivation” was not for the public good, but rather for was for his own personal motives. See Fiorillo v. Department of Justice, 795 F.2d 1544, 1550 (Fed. Cir. 1986). However, in subsequent years, the Federal Circuit determined it had improperly reached that conclusion because nothing in the CSRA requires an employee’s motives should be considered in determining whether a disclosure is protected. Id.; see also Horton v. Department of the Navy, 66 F.3d 279, 282-283 (Fed. Cir. 1995).
In 1988, Congress decided that a whistleblower’s motivation should not be considered, and that all employees should be encouraged to alert the public of waste, fraud and abuse. “The [Office of Special Counsel], the Board and the courts should not erect barriers to disclosures which will limit the necessary flow of information from employees who have knowledge of government wrongdoing.” S. Rep. No. 413, 100th Cong., 2d Sess. 12-13 (1988). Id.
As we said above, under 5 USC § 2302(b)(8), disclosures of information that the employee making the disclosures “reasonably believes” evidences certain kinds of wrongdoing are protected. The only time bias or motivation might enter the picture is in testing reasonableness of belief in blowing the whistle — and, warning, it’s an uphill battle. While bias and self-interest may be considered in testing the reasonableness of belief, bias alone does not determine that a whistleblower does not have a reasonable belief. LaChance v. White, 174 F.3d at 1381. Personal motivation, whether to save the world, ruin someone’s career, or something in between, does not per se affect reasonableness. Carter v. Army, 62 MSPR 393 (1994).
If “the employee is motivated by a desire to damage others’ reputations,” this fact alone is not dispositive, even though the whistleblower’s motives in making disclosures were to destroy his supervisor “during the course of an internal agency power struggle,” Fickie v. Army, 86 MSPR 525 (2000).
Separately, some in the press made a big issue that the whistleblower disclosed no first-hand information in the complaint, nor any other direct proof of the alleged impropriety that occurred in the President’s July 25 phone call. Again, that’s irrelevant as to whether the individual is a protected whistleblower. A whistleblower need only have a “reasonable belief” in the facts he is disclosing, not actual proof that the facts are as they are being described. In other words, if an individual is told something by a reliable source, and chooses to believe it because it makes sense to him, he is then protected if he discloses the believed facts in a whistleblower complaint. It’s the subsequent investigation of the complaint that is supposed to flesh out the facts based on credible evidence; it’s not up to the whistleblower to prove the allegations.
Some talking heads made an issue out of the belief that the employee is not a whistleblower because the alleged facts do not rise to the level of a crime. Well, federal employees are whistleblowers if they report things other than criminal activity; e.g., a simple abuse of authority or gross mismanagement will suffice to protect the discloser. The commission of a “high crime or misdemeanor” would be relevant to the impeachment process, but not to the status of being a whistleblower.
A lot of guests on talk TV have used harsh words to describe the whistleblower: traitor, spy, partisan hack, deep-state operative, rotten snitch, rat, back stabber, saboteur. In reality, a federal employee who believes that he or she has observed corruption committed by a government official is required by regulation to disclose that belief. A “basic obligation of public service” can be found at 5 CFR Sec. 2635.101
(a) Public service is a public trust. … To ensure that every citizen can have complete confidence in the integrity of the Federal Government, each employee shall respect and adhere to the principles of ethical conduct set forth in this section …
(b) …
(11) Employees shall disclose waste, fraud, abuse, and corruption to appropriate authorities.
Even if the individual personally did not want to disclose what appeared to be corruption being committed by a particular government official, the regulations mandates that a disclosure be made.
What does this all mean? It means Congress has afforded protections to whistleblowers higher than any other kind of protection in the civil service, and as long as the employee has a reasonable belief that the content of the protected disclosure is true, that whistleblower cannot legally be disciplined for making the disclosure – even if his goal was to make his boss look bad, get fired, or worse.
