Will a barely noticed report from a little federal agency about whistleblower retaliation have larger implications after the Trump era begins next month?
That question can’t be answered now, but there is concern among whistleblower advocates who find both comfort and warning signals in an Office of Special Counsel (OSC) case.
OSC investigates reprisals against federal whistleblowers. There are far too many acts of revenge, but “the unique aspect of this case is the third-party element,” said Special Counsel Carolyn Lerner.
Agency retributions against employees generally don’t involve retaliation on behalf of an outside party. That’s behind what OSC says the Bureau of Indian Affairs (BIA) did to an unidentified staffer after he complained that oil and gas lease agreements between energy companies and the Southern Ute Indian Tribe in Colorado appeared to violate BIA regulations and environmental laws.
“The employee’s disclosures angered a Native American tribe, and the tribe put pressure on the highest levels of BIA and the Interior Department to reassign the employee from the BIA’s office on the tribe’s reservation,” read an OSC statement last week. BIA fired the employee in 2013. He was reinstated with back wages and compensatory payments in an agreement OSC negotiated.
In normal times, this case might not make this column. But Donald Trump’s electoral college victory makes these times abnormal. With the president-elect’s extensive business and financial holdings, this case could have larger implications. There’s been much attention to potential conflicts for Trump and his family. Yet, his businesses could present conflicts for federal employees, too.
For example, if Trump doesn’t completely divest his business operations and one violated federal regulations, would agency staffers hesitate to impose enforcement actions that could harm the boss’s financial interests? If the regulations were not enforced, would workers fear being retaliated against for disclosing that dereliction of duty?
In BIA’s case, the “failure to defend its employee and, instead, to cave to a retaliatory demand is a PPP (prohibited personnel practice),” OSC’s 17-page report said. “The chilling effect is clear: BIA employees are silenced from disclosing violations of law if they anticipate that such disclosures will be unpalatable to a Tribe and that BIA will simply bend to the Tribe’s will.”
Lerner told The Washington Post that “federal managers need to abide by merit system principles, even when there is outside pressure to retaliate. It’s important for the federal workforce to know about this case to help deter future acts of retaliation. It’s vital that federal managers protect employees who anger outside interests when they uncover potential wrongdoing as a part of their job.”
Whatever implications stem from this case will be played out in the context of the disturbing news that the Trump transition team asked the Department of Energy (DOE) for the names of individual employees and contractors who attended conferences on climate change, a global phenomenon Trump called a hoax. That inquiry worried workers concerned that there could be reprisals from incoming Trump officials for work done on policies he opposes.
The OSC enforcement action in the Southern Ute case “sends a strong signal that agencies must not retaliate against whistleblowers to mollify key stakeholders,” said Jason Zuckerman, a Washington lawyer specializing in whistleblower retaliation. “The troubling questionnaire that the Trump transition team sent to DOE to identify scientists performing research on global warming suggests that regulated industries might view the new administration as an opportunity to punish federal workers for enforcing regulations or force federal workers to abandon investigations or enforcement actions for political reasons.”
In a letter to its members, the Southern Ute Tribal Council said OSC misrepresented it “as actively trying to skirt environmental regulations, then seeking retaliation for a BIA employee ‘whistleblower’ who had refused to let environmental mandates slide. This is simply not the case.” The Tribal Council said it wanted the employee replaced because of incompetence, disrespect and “disregard for the Tribe’s sovereignty.”
The BIA ignored most of my questions, saying only it appreciated OSC’s review and intends to comply with its requests for the worker’s reinstatement and compensation.
Federal employees who enforce regulations “may be understandably reluctant to put objections, stipulations and cautions in writing for fear that it may cause them to be put on White House hit lists,” said Jeff Ruch, executive director of Public Employees for Environmental Responsibility. Enforcing rules that conflict with Trump administration policies, under “a chief executive who is so thin-skinned that he regularly gets into Twitter-spats with actors about comedy skits,” he added, “may require a profile in courage.”