“We are also doing our best to get the word out to all government agencies that whistleblower retaliation in any form is unacceptable and against the law. For example, I recently sent a memo to all federal agencies explaining that it is retaliatory and unlawful to monitor the communications of an employee because that employee has engaged in whistleblowing.”
Q: Why are managers and supervisors who engage in retaliation seldom punished? What should be done to correct that? Is additional legislation needed on this point?
Joe Davidson writes the Federal Diary, a column about the federal workplace that celebrated its 80th birthday in November 2012. Davidson previously was an assistant city editor at The Washington Post and a Washington and foreign correspondent with The Wall Street Journal, where he covered federal agencies and political campaigns.
A: “After OSC’s investigation of whistleblower retaliation at Dover Air Force Base, all three managers involved received significant disciplinary actions. OSC often gets corrective and/or disciplinary action in response to our investigations. However, we would be able to do more in this area if pending legislation was passed by Congress.
“The Merit Systems Protection Board established an extremely difficult standard for proving retaliation in a whistleblower case. The board has also held that OSC may be responsible for the private attorneys’ fees for government managers if OSC does not meet this exceptionally high burden. Pending legislation — the Whistleblower Protection Enhancement Act — would address both of these barriers and I strongly support it.”
Q: The Whistleblower Protection Enhancement Act (WPEA) has been pending for many years. What difference would it make?
A: “In addition to helping our ability to bring disciplinary action . . . the legislation will address several court decisions that have narrowed the whistleblower protections available to federal employees. These decisions handcuff OSC in our efforts to protect conscientious whistleblowers. For example, under current precedent, a whistleblower is not protected for disclosing information up the chain of command in the normal course of the employee’s job duties. This leaves too many employees — like auditors and safety inspectors — who may encounter waste, fraud or abuse in their day-to-day work, without the full scope of protections Congress intended.”
Q: Does your office need more authority?
A: “The WPEA would also give OSC the authority to issue amicus (friend of the court) briefs in appellate cases. It makes sense that the agency charged with enforcing the whistleblower law be permitted to help shape that law through court proceedings, and I support this change as well.”
Previous columns by Joe Davidson are available at wapo.st/JoeDavidson.