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Federal Employees News Digest : July 29, 2013
July 29, 2013 Vol. 63, No. 2 5 Visit us on the Internet at www.FederalDaily.com The discipline dance: When leakers are also whistleblowers The long, drawn-out story about the United States's attempts to apprehend the fugitive former National Security Agency con- tractor, Edward Snowden, has made one thing abundantly clear: punishing people who leak classified or confidential information can be quite tricky. This is especially true when the leaker is a fed- eral employee who is also a whistleblower. Leaking information should not be confused with blowing the whistle on wrongdoing. Where leaking is usually the result of someone skirting rules, regulations or laws regarding the dis- closure of information, whistleblowing is an activity endorsed by Congress and protected by the Whistleblower Protection Act (WPA) and Whistleblower Protection Enhancement Act (WPEA). By definition, a "leak" is "something that permits the admission or escape of something else usually with prejudicial effect." Another term for "leak" is "unprotected disclosure." Agencies experience difficulty in disciplining employees when they make both unprotected and protected disclosures. For example, Anil N. Parikh v. Department of Veterans Affairs (2011) involved a staff physician whom the agency removed for the unauthorized release and disclosure of private and protected information. More specifically, the physician -- alarmed over the poor treatment of VA patients – sent confidential patient information to a program director at the University of Illinois at Chicago Internal Medicine Residency Program, a complaint officer at the Accreditation Council for Graduate Medical Education, an attorney, and various members of Congress, including then Sen. Barack Obama. The Merit Systems Protection Board (MSPB) found that the disclosures to the senators and congressmen were protected in that they addressed concerns over public health and safety and they were made to WPA-appropriate parties. The disclosures made to the other parties were not protected, partly because they were "specifically prohibited by law." (The WPA does not cover such disclosures, along with those prohibited by executive order). The board noted that the physician's protected disclosures influenced the agency's removal decision. Further, the agency failed to con- vincingly show it would have removed the physician due to the unprotected disclosures alone. As such, the board ordered the agency to rehire the physician. Another case that attracted much publicity was Acting Special Counsel ex rel. Adam Finkel v. Department of Labor (2003). This case involved an Office of Safety and Health Administration (OSHA) regional administrator who gave a news publication information about the agency's decision to not provide blood tests to screen for beryllium in compliance officers who may have been exposed to that carcinogen. After the publication ran two stories on this issue, agency officials pressed the employee to "volunteer" for reassignment, prompting him to file a whistleblower retaliation complaint with the Office of Special Counsel (OSC). The agency subsequently reassigned the employee from Denver to Washington, D.C., but the MSPB issued an OSC-requested 45-day stay on the personnel action. The board granted the stay, saying there appeared to be "reasonable grounds" to believe the employee's disclosure "evidenced a substantial and specific danger to public health or safety" and it likely influenced the reassignment decision. However, the board stressed "[a] stay proceeding is not intended to be a substitute for a complete hearing on the merits." Even supervisors can end up in hot water when attempt- ing to discipline employees who made protected and unpro- tected disclosures. That's what happened to the General Services Administration (GSA) regional personnel officer in OSC v. Larry L. Hathaway (1991). After receiving a complaint from a GSA employee, the OSC pressed for disciplinary action against a regional personnel officer who threatened to retaliate against a complainant. This supervisor threatened to reassign the employee after learning he had leaked information to a union. Subsequently, the subordinate informed the supervisor he had made disclosures to the inspector general about improper personnel actions taken by the supervisor. This admission elicited more threats from the supervisor. The MSPB found that the supervisor's threatened reassignment did not violate the WPA because the leaks to the union would have compelled him to pursue that personnel action, regardless of the protected disclosures to the IG. The board, however, did find that the supervisor's threat to give the whistleblower an unsatisfactory performance rating after the IG investigation concluded violated the WPA. Ultimately, the board decided the supervisor should be suspended for 30 days instead of being demoted. A federal employee who is accused of being a leaker or who has experienced retaliation for being a whistleblower should immedi- ately contact a federal employment law attorney. By Mathew B. Tully, Esq. Mathew B. Tully is the founding partner of Tully Rinckey PLLC. He concentrates his practice on representing military person- nel and federal employees and can be reached at email@example.com. To schedule a meeting with one of the firm's federal employment law attorneys, call 202-787-1900. The information in this column is not intended as legal advice.
July 22, 2013
Aug 5, 2013