The U.S. Education Department is proposing a five-day suspension for a budget analyst who provided information to The Washington Post about the Trump administration’s 2017 budget proposal before it was released, according to a letter sent to the employee. Her attorney says it is retaliation for whistleblowing.
The Education Department did not respond to requests for comment. Delaney declined to comment. The copy of the letter obtained by The Post has the name of the budget director redacted, but he is identified on the department website as Larry Kean. He did not respond to a request to comment.
Washington Post officials declined to comment.
Delaney’s attorney, Cathy Harris, said in a statement: “This is one of the starkest examples of direct retaliation for whistleblowing that I have seen. The Department of Education is threatening to suspend an employee for blowing the whistle, which is wholly protected under the law. The Department should be thanking Ms. Delaney for her courage, not retaliating against her for exercising her right to blow the whistle by contacting the press about what she saw as gross mismanagement by public officials.”
Harris has asked the U.S. Office of Special Counsel to issue a stay of any disciplinary action against Delaney, saying in a Sept. 5 letter: “It could not be more stark: the Department of Education charged that Ms. Delaney committed ‘conduct unbecoming a federal employee’ solely because she disclosed information to the press, and later to Congress, OSC [Office of Special Counsel] and others, that Ms. Delaney reasonably believed constituted gross mismanagement.”
The stay request says Delaney took the action she did in May 2017 “because she reasonably believed that the information in the budget was inaccurate, misleading.” It also said, “The budget information was under ‘embargo’ at the time but there was no policy prohibiting its release. Ms. Delaney was concerned that the budget summary contained significant errors and misleading wording, and was dishonest.”
The letter sent to Delaney does not specify whether the proposed five-day suspension would be paid or unpaid.
In 2018, Education Secretary Betsy DeVos asked her department’s Office of Inspector General whether there were grounds to prosecute employees who leaked budget data to The Post and unclassified information to Politico.
An internal department report said it would be difficult because the department has “little” written policy or guidance on how employees are supposed to handle information. It recommended implementing policies and training to make it easier to punish future leakers. But it also said in a footnote that any new policies should “take into consideration whistleblower rights and protections,” because there “may be times when what may be viewed as a ‘leak’ or an unauthorized release of non-public information could involve a protected disclosure."
Department employees who spoke on the condition of anonymity because they were not authorized to discuss internal discussions told The Post last year that DeVos was furious about the leak and believed it came from the Budget Service office. As a result, they said, she sought to split up the centralized budget office during a major reorganization of the Education Department and reassigned some personnel.
Delaney has until Sept. 16 to reply to the letter.
Some of the information was reported in a May 17, 2017, Post article. It said the Trump administration was seeking in its 2018 budget proposal to cut in half funding for college work-study programs, end public-service loan forgiveness and cut hundreds of millions of dollars that public schools could use for mental health, advanced course work and other services. The administration wanted to channel part of the savings into school choice, its stated top priority. The Post published a second story with further details the next day.
The author of the letter to Delaney noted mitigating factors in the disciplinary decision, telling her, “You get along with your fellow workers and your performance has been acceptable.”
The letter cited aggravating factors that included Delaney telling investigators with the department’s Office of Inspector General that she “intentionally provided” the information to The Post and “admitted that no one” had authorized her to do so. It also says she first suggested that information may have been leaked from her computer but did not initially disclose that she did it and that her “lack of candor was intentional … to protect yourself from ostracization."
The author of the letter also said Delaney’s actions “have given me pause to assign further deliberative, sensitive work to you for fear that you will share with the media or other unauthorized parties."
Harris’s request for a stay says: “We note that the proposed suspension never mentions the fact that Ms. Delaney made the disclosures because she viewed the budget as containing information that constituted gross mismanagement — even though the Department knew full well that she considered her acts to be protected whistleblowing activity.”
The Department did not respond to an inquiry about whether it has disciplined employees previously for providing information to the press without authorization. Whistleblower and retaliation complaints jumped 775 percent from fiscal year 2016 to 2018, according to the department’s 2020 budget request for the Office of Inspector General. The number of inquiries initiated to resolve the allegations jumped 867 percent in that time. The document says:
Whistleblower and Retaliation Investigations—The OIG will continue to conduct administrative investigations of whistleblower reprisal complaints, as well as to evaluate the underlying allegations to determine if criminal or civil investigations are warranted. Due to increased awareness, as well as legislative changes that now cover sub-grantees, OIG has seen the number of whistleblower reprisal complaints increase from 4 to 35 (775%) from FY 2016 to FY 2018. This has resulted in an increase in the number of inquiries initiated by the OIG to resolve these allegations from 3 to 29 (867%).
The federal Whistleblower Protection Program protects employees who suffer retaliation for engaging in protected activities, using more than 20 federal applicable laws. According to the Office of Personnel Management:
A “protected disclosure” under Federal whistleblower protection law includes any disclosure of information that an employee, former employee, or applicant for employment reasonably believes evidences—Disclosures of such wrongdoing are covered by whistleblower protections regardless of whether they are made to the Office of the Inspector General, the Office of Special Counsel, a supervisor or someone higher up in management, or a member of Congress or congressional committee—provided that the disclosure is not specifically prohibited by law and the information does not have to be kept secret in the interest of national defense or the conduct of foreign affairs.