By William Wiley, August 19, 2020
We’ve been seeing a lot in the national media lately about civil servants as whistleblowers. Some groups hate them, some groups love them. Unfortunately, neither group always understands the federal whistleblower protection laws. That can work to the whistleblower’s significant disadvantage, especially when an apparently pro-whistleblower piece of advice can result in an unspoken disadvantage for the whistleblower.
Take the advice as to what a federal employee should do when ordered to do something illegal – say, hypothetically, to initiate a governmental action to serve a partisan political purpose rather than a valid governmental purpose. The lovely alliterative phrase I’ve heard recently is that when an illegal order is given, the employee should Refuse, Report, (and, if necessary) Resign. If you find yourself in the position of being ordered to take an illegal governmental action, and you’re considering whether to follow this Three-R recommendation, please think twice.
First, the good news. After Congress passed the Civil Service Reform Act of 1978, it subsequently amended the law to make it illegal for an agency to fire an employee for “refusing to obey an order that would require the individual to violate a law, rule, or regulation,” 5 USC 2302(b)(9)(D). We’ve previously written in this newsletter about the challenges a federal employee faces when confronted with an order requiring illegal activity.
Bottom line: If you are fired for refusing to obey an order, and the judge agrees with you that the order required you to do something illegal, then you get your job back (plus damages and the all-important attorney fees). So, the “Refuse” rationale makes sense legally.
As for the “Report” admonition, that’s protected activity, as well. We call that “whistleblowing.” Reprisal against a federal employee for blowing the whistle on governmental illegality has been protected (at least in part) since the Lloyd-LaFollette Act of 1912. The “Report” recommendation also makes sense if one is interested in stopping government malfeasance.
Which brings us to the third suggested action. When confronted with being ordered to take an illegal action, in addition to Refusing and Reporting the order, a federal employee should, if necessary, “Resign.” Lordy, that would feel good, wouldn’t it? Throw yourself on the hand grenade. Take one for the Gipper. It’s how heroes are made, isn’t it? Altruistic sacrifice to benefit the greater good. Mr. Spock would be proud (“The needs of the many outweigh the needs of the few” … that sort of thing).
If you as a whistleblower were to resign when confronted with an order to do something illegal, you might well find that a degree of fame comes along with your act of selflessness. The Washington Post might run a piece or two about your bravery (full disclosure, Jeff Bezos does not own the FELTG Newsletter), MSNBC might book you on Rachel or Lawrence, and some extreme-media outlets might interview every ex-boyfriend or girlfriend you ever dumped who still blames you for their inability to develop deep personal relationships.
And then … what? You’re out of a job. You’re hungry, the rent’s due, and baby needs a new pair of shoes. The publicity surrounding the circumstances under which you resigned from government has morphed into a degree of notoriety, at least in the eyes of certain prospective employers. You’re still convinced that you did the right thing by refusing the illegal order and reporting the government malfeasance, but you sure would like to pay your bills next month.
Fortunately, you have been to an FELTG class on employee rights and know that there are statutory protections for federal employees who are whistleblowers. However, when you read the law, you recognize that it specifically prohibits a federal agency from taking a personnel action because of an employee’s whistle blow. In your situation, the agency did not take an action. YOU took the action when you quit. Therefore, the refusal-to-obey protections of 5 USC 2302(b)(9)(D) do you little good.
Then, over a beer one night at your local watering hole, you come to find out that the guy next to you at the bar (six feet away, of course) is a federal employment lawyer. Hey, it IS Washington, DC after all. Try to find a bar that does NOT have at least one lawyer in it. He tells you that you may be the victim of a “constructive removal” and that you might have a case before something called the “US Merit Protection Systems Board.”
OK, he’s not a GREAT employment lawyer.
Anyway, long story short. You file an appeal with MSPB, and you lose. That’s because many years of caselaw, backed up by almost as many court decisions, have supported the two-part principle regarding claims of constructive removal. First, resignations are presumed to be voluntary and thereby non-appealable. Second, this presumption of voluntariness can be overcome by the individual on appeal if the appellant can prove that the resignation was the result of intolerable working conditions which could not be resolved otherwise.
Do we have intolerable working conditions in your situation? No, not necessarily. It all depends on how management responded to the refusal to obey the illegal order and the subsequent whistleblowing. Maybe your supervisors just blew it off. Or, maybe they got somebody else to do the job instead of trying to force you to obey. Your being offended by the order itself, no matter how justified, standing alone, has never been found to constitute the creation of working conditions so intolerable as to justify your quitting; e.g., a constructive removal.
Instead of resigning, from a strictly defensible legal standpoint, the better R-option to consider would be to “Redress.” Not resist because you disagree with a particular policy of upper management, but rather resist any efforts on the part of management to fire you for refusing to obey that illegal order. You have significant redress rights as a federal civil servant if you are fired. Most federal employees who are reprised against for refusing to obey an illegal order can file a complaint with the US Office of Special Counsel. That agency can intervene in the removal process itself, perhaps obtaining a stay of the proposed removal before it is effectuated.
Separately from OSC, a fired career Title V employee almost always has a right to file an appeal with MSPB, with a discovery entitlement, a hearing and decision before an administrative judge, and three layers of appeals of that decision goes all the way to the Supremes.
This approach avoids the troublesome legal hurdles of the appeal of a claimed constructive removal. Instead, your claim is that the agency violated 5 USC 2302(b)(9)(D) when it fired you because you refused to obey an order that would have required you to commit an illegal act. That’s a significantly easier bar to clear than would be your burden to prove intolerable working conditions.
Personally, I have to admire someone who gives up a good federal job to put a public spotlight on significate government malfeasance. Unfortunately, my admiration does not put dinner on that former employee’s table. Plus, I’ll no doubt be onto the next political outrage within a few days while that individual is still trying to get through to the unemployment benefits office to file a claim. If you feel the need to Refuse and Report a supervisor’s order that is motivated by illegal purposes, you are doing what our whistleblower laws (and most of our society) expect you to do. However, when it comes to the third step, consider Redressing instead of Resigning. The same number of talk show producers will give you a call. You can stick a pin in that.
Watch this space. Wiley@FELTG.com