By Deborah Hopkins, June 7, 2021
Last week, the MSPB released a research brief Agency Leader Responsibilities Related to Prohibited Personnel Practices. Since the MSPB still doesn’t have a quorum (1,613 days and over 3,400 Petitions For Review – and counting), publishing research briefs is one function the Board is still able to complete.
This brief looks at specifics in the Dr. Chris Kirkpatrick Whistleblower Protection Act (Kirkpatrick Act), 5 U.S.C. § 7515, which was passed unanimously by the Senate in 2017. The Kirkpatrick Act was named after a VA doctor who reported patient abuse and issues with patient medications (opioids) at the VA Medical Center where he was newly employed. Dr. Kirkpatrick made allegations that he was reprised against for being a whistleblower, and died by suicide shortly after he was removed from his position.
In case you’re not familiar, the Kirkpatrick Act sets out specific requirements for discipline against management officials who reprise against whistleblowers and other employees, specifically limited to the 5 U.S.C. § 2302(b) Prohibited Personnel Practices (PPP) 8, 9, and 14:
- PPP 8 addresses retaliating or threatening to retaliate against a whistleblower.
- PPP 9 addresses retaliating or threatening to retaliate against a person who exercises his/her/their right to participate in an appeal, complaint, or grievance (including as a witness), and retaliating or threatening to retaliate against an employee who refuses to obey an order that would require an individual to violate a law, rule, or regulation.
- PPP 14 involves accessing the medical record of an employee or applicant as part of the commission of any other PPP.
If there is a finding of what MSPB in its brief refers to as a “Kirkpatrick PPP,” then specific requirements must be met in proposing discipline. We’ll discuss those below.
But first, according to the report, while “[t]he Kirkpatrick Act does not state what constitutes a determination that a Kirkpatrick PPP was committed or how to determine who committed the PPP in question,” the finding of a Kirkpatrick PPP can only be made by:
- The head of the agency employing the supervisor;
- An administrative law judge;
- The MSPB;
- The U.S. Office of Special Counsel (OSC);
- A judge of the United States;
- The Inspector General (IG) of the agency.
This seems to exclude the findings of a standard misconduct investigation unless, of course, the agency head reads the ROI and decides reprisal has occurred. Once the reprisal finding is made, the Kirkpatrick Act details the following process:
The head of the agency shall:
- Propose a suspension of at least three days (for a first offense), or propose removal (for a second offense by the same supervisor).
- Provide the employee 14 days to respond to the proposal, and allow the employee to be represented and to review the material relied upon; and
- Exercise judgment when considering the employee’s response and deciding to implement the proposed action, with the decision due by the end of the 15th business day (5 CFR § 752.103; this timeline may be amended in the future as a result of Executive Order 14003.)
There’s another interesting caveat to the Kirkpatrick Act. It only applies to actions taken against supervisors, as defined by 5 U.S.C. § 7103(a). If you have a few minutes to look it over, the brief can be found here. It includes a nice side-by-side chart comparing Traditional Discipline with Kirkpatrick Discipline. The brief also details various training on PPPs that agencies must require (including supervisor training on Kirkpatrick discipline), so please let us know if you’d like us to help you out there. After all, it’s what we do. Hopkins@FELTG.com.