Robust Whistleblower Protections Essential for Civil Servants to Function as the Real Fourth Estate

In a January 20, 2014 column in FedSmith titled The Real Fourth Estate, Jerry Fox asserts that career civil servants are the real fourth estate.  In particular, Fox contends that career civil servants are a “‘check and balance’ protecting the public from ill-conceived, sometimes downright dumb, policies and programs advanced by the Congress or any sitting administration.”  Fox’s observation is dead on, and indeed career civil servants have consistently played a critical role in exposing waste, fraud and corruption in government programs and operations.  For example, in recent years, whistleblowers in the civil service exposed Operation Fast and Furious, lavish GSA conference spending, and abuse of administratively uncontrollable overtime at the Department of Homeland Security.  And in FY 2012, investigations performed by Federal Offices of Inspector General, which are often triggered by complaints or disclosures made by concerned civil servants, generated approximately $10.4 billion in investigative receivables or recoveries.

But civil servants cannot function effectively as the “real fourth estate” unless they are protected against retaliation.   A Merit Systems Protection Board study titled “Blowing the Whistle: Barriers to Federal Employees Making Disclosures,” found that approximately one-third of federal employees who felt they had been identified as a source of a report of wrongdoing perceived either threats or acts of reprisal, or both.  The study also found that perceptions of retaliation have a chilling effect in the workplace.

Fortunately, in 2012, Congress strengthened the Whistleblower Protection Act by enacting the Whistleblower Protection Enhancement Act  (WPEA).   To ensure that federal employees will come forward with vital disclosures that make the government more efficient and accountable, the WPEA

  • removes judicially-created loopholes that significantly narrowed the scope of protected whistleblowing under the Whistleblower Protection Act;
  • authorizes prevailing whistleblowers to obtain compensatory damages;
  • strengthens the ability of the U.S. Office of Special Counsel (OSC)to hold managers accountable for retaliating against whistleblowers; and
  • mandates broader outreach to inform federal employees of their whistleblower rights.

Within a year of the enactment of the WPEA, however, the Federal Circuit dealt a major blow to federal employee whistleblower protections by holding in Kaplan v. Conyers that agencies can deprive employees of appeal rights merely by classifying their positions as “sensitive” or “non-critical sensitive” to national security.  Under Conyers, hundreds of thousands of federal employees that do not hold a security clearance and whose work is not directly related to national security would lose the right to seek an independent review of a retaliatory adverse action.  Legislation is pending in the House and Senate (H.R. 3278 and S. 1809) that would overturn this pernicious decision by granting the MSPB authority to review on the merits an appeal by an employee of a determination of ineligibility for employment in a sensitive position if: (1) the sensitive position does not require a security clearance or access to classified information, and (2) the determination is otherwise appealable.

While enacting the Whistleblower Protection Enhancement Act was a major step forwarding in strengthening federal employee whistleblower rights, challenges remain to ensuring that federal employees can function as the real fourth estate.

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Jason Zuckerman, Principal of Zuckerman Law, litigates whistleblower retaliation, qui tam, wrongful discharge, and other employment-related claims. He is rated 10 out of 10 by Avvo, was recognized by Washingtonian magazine as a “Top Whistleblower Lawyer” in 2015 and selected by his peers to be included in The Best Lawyers in America® and in SuperLawyers.