That could change under a law President Trump signed last week.
For a White House and Congress that often seem intent on undermining federal employee rights and benefits, last week’s enactment of the Dr. Chris Kirkpatrick Whistleblower Protection Act of 2017 was a welcome change.
The legislation — approved unanimously by both chambers of Congress — is designed to stem management retribution by making supervisors face disciplinary measures for their actions.
If it is determined, by one of several officials, that a supervisor retaliated with a “prohibited personnel action” against an employee, the official “shall propose suspending the supervisor” for at least three days on the first offense and “shall propose removing the supervisor” for the second offense.
Supervisors are allowed 14 days to fight proposed punishments. If they do not or if the agency head determines there is insufficient cause to overturn the proposed discipline, then it stands.
One problem — if that determination rests in the hands of the agency head who proposed the punishment, then that official would act as both prosecutor and judge of the supervisor.
Nonetheless, the law is potentially a watershed in Uncle Sam’s approach to whistleblowers.
Devine called it “a paradigm shift that may prevent far more retaliation than whistleblowers can stop through lawsuits. By filling the accountability vacuum, the new law replaces virtually guaranteed carrots with the specter of sticks for bureaucratic bullies who harass whistleblowers.”
The vacuum stems from what GAP calls the “absence of deterrence against whistleblower retaliation. Currently, agency bullies have nothing to lose and can retaliate with impunity. In the past, when they have not gotten away with it, they almost routinely received a bonus or promotion as a reward for doing the dirty work of harassment.”
Not sharing in the unanimous approval Congress demonstrated are the Senior Executives Association (SEA) and the Federal Managers Association (FMA) — organizations representing managers and supervisors.
While “it is imperative that all federal employees have, and FMA strongly supports, the strongest possible whistleblower rights,” as FMA President Renee Johnson said, the new law “is seriously flawed,” added SEA President Bill Valdez.
In a letter to the House on the day it passed the legislation, Valdez complained that “specific classes of Federal employees, in this case supervisory employees, are singled out for unique and disparate treatment under the law. The notion of different sets of rules for different groups of citizens is fundamentally un-American. Even worse, this class is being targeted based on anecdote, not supported by data or facts …”
Here are facts about Chris Kirkpatrick.
He was a Department of Veterans Affairs psychologist and whistleblower who committed suicide by gun on the day, July 14, 2009, he was fired from the Tomah VA Medical Center in Tomah, Wis. Previously, he complained about overmedicating patients at the facility.
“Chris Kirkpatrick did the right and honorable thing when he raised concerns about the over-prescription of opioids to veterans,” said Senate Homeland Security and Governmental Affairs Chairman Ron Johnson (R-Wis.), when the law he sponsored was signed. “Today we are sending a strong message that federal whistleblowers like Chris deserve protection, and attempts to intimidate or silence whistleblowers are unlawful.”
That sounds like good news for the federal whistleblowers who suffer the whip of retribution. But they remain skeptical. Here are their words:
Richard Tremaine, a VA employee who blew the whistle while at an agency facility in Montgomery, Ala.: “If what I’ve seen and experienced, until the VA actually publicly embraces whistleblowers, as every leader claimed they will do, nothing will change, in fact things are already worse.”
Germaine Clarno, who was a VA whistleblower in Hines, Ill.: “Will retaliation decline because of this law? “No, [we] already have laws, conducted congressional hearings, supervisor trainings, investigations, media exposure, and there is still an epidemic of retaliation with no signs of letting up.”
Gayle M. Petersen, an Agriculture Department whistleblower: “Management sets the tone … If the leadership …[will] notify staff members of the new bill and send the message that whistleblower retaliation is unacceptable and will no longer be tolerated and follow this up with swift corrective action as an example of their seriousness then yes there will be change.
“What is the likelihood of this happening? Not much …”