Hearing examines health of federal whistleblowing, finds alarming changes

Hearing witnesses Robert MacLean, Dr. Robert Van Boven and Tom Devine. Sept 9, 2014.
Hearing witnesses Robert MacLean, Dr. Robert Van Boven and Tom Devine. Sept 9, 2014.

by Linda Lewis   Sep. 20, 2014

[Originally posted Sep. 18 at Whistleblowing Today]

At a hearing on Capitol Hill last Tuesday, witnesses delivered a combination of good news and dire predictions in testimonies on the state of whistleblowing in the federal government. The hearing, “Examining the Administration’s Treatment of Whistleblowers,” was held September 9 by the Government Oversight and Reform Committee, Subcommittee on the Federal Workforce, US Postal Service and the Federal Census.

The government is being transformed from the rule of law to a national security spoils system. – Tom Devine

Special Counsel Carolyn Lerner, who heads the office that receives federal whistleblower disclosures, testified that whistleblowers came forward in record numbers last year.  Roughly 5,000 complaints, an increase of 30% over the previous year, have poured into the Office of Special Counsel (OSC). More whistleblowers received favorable findings, too, a development Lerner attributed to passage of the Whistleblower Protection Enhancement Act (WPEA).

[Full video of the testimony available here.]

More appeals of employment actions are being filed, as well, with the Merit Systems Protection Board. MSPB Chair Susan Tsui Grundmann confirmed that 657 appeals were filed in fiscal year 2013. Success was elusive, however: Only four of the appellants were granted corrective action. Grundmann indicated that data for 2014 will reflect the WPEA’s reforms.

One consequence of the WPEA has been that agencies are taking more aggressive measures to silence whistleblowers, said Tom Devine, legal director of the Government Accountability Project. Previously, managers retaliated with adverse employment actions (suspensions, demotions, termination, et cetera). Now, they threaten criminal investigations and prosecutions if the whistleblower doesn’t voluntarily resign.

In addition, Devine said, the administration is re-designating jobs “noncritical sensitive” positions, thus exploiting a court ruling in Kaplan v. Conyers that denied employees in sensitive positions the right to appeal adverse employment decisions to the Merit Systems Protection Board (MSPB). The “sensitive” position held by one of the parties in the Kaplan case involved stocking shelves in a DoD commissary.

Tom Devine, legal director for the Government Accountability Project, testifies.
Tom Devine, legal director for the Government Accountability Project, testifies.

Rep. Eleanor Holmes Norton (D-D.C.) warned that this transformation of the federal workforce poses a major threat to the Whistleblower Protection Enhancement Act (WPEA) and the entire civil service. It thus would undermine Congressional oversight and leave government unaccountable to voters.

This is a frightening circumstance where an agency head or his designee can designate any position as security sensitive. Now understand, these are not positions that require a security clearance. So, in the parlance of the day, most people would not understand that these positions are commonplace positions having nothing to do with security. – Eleanor Holmes Norton

According to Devine, the “sensitive jobs loophole” is metastasizing rapidly across the federal government.

Agency by agency, they’re starting to make all their employees sensitive, noncritical sensitive. All the IGs that we depend on to protect the whistleblowers are transforming their employees to be critical sensitive. The entire border patrol, where we have some of the most significant whistleblowing disclosures, will all be noncritical sensitive. The government is being transformed from the rule of law to a national security spoils system. – Tom Devine

The appeal of turning mundane jobs into “sensitive” positions no doubt is enhanced by the WPEA’s lack of protections for national security whistleblowers–an open barn door through which agencies were bound to go. Protections for intelligence community whistleblowers were addressed separately in Presidential Policy Directive (PPD)-19 and the Intelligence Authorization Act for FY 2014, but neither of those establishes the independent, external oversight that is widely acknowledged to be critical to successful outcomes for whistleblowers. (More on those later.)

Tuesday’s hearing was a model of cooperation between the two parties. For its duration, one could easily forget that contentious midterm elections were a few weeks away. Chair Blake Farenthold (R-TX) and other committee members warmly welcomed the two whistleblowers who testified, Robert MacLean and Dr. Robert Van Bowen. At the conclusion of the hearing, Farenthold walked over to thank the whistleblowers and shake their hands.

Representatives Eleanor Holmes Nortion, Stephen Lynch and Blake Farenthold listen to testimony at Sept 9, 2014 hearing.
Representatives Eleanor Holmes Nortion, Stephen Lynch and Blake Farenthold listen to testimony.

MacLean, a former air marshal for the Transportation Security Agency (TSA) and Van Boven, a former medical researcher for the Department of Veterans Affairs (VA) testified about the retaliation that followed their attempts to protect public health and safety. Their grim stories illustrate the importance of whistleblower protections to the welfare of all Americans–a balancing factor that officials often overlook in deciding to impose restrictions on access to information.

Air travelers may have been spared a repeat of the 9/11 hijackings due to Robert MacLean’s disclosure of a TSA plan, texted to him on an unsecured cell phone, that proposed to remove air marshals from long commercial flights requiring hotel stays. Two days earlier, he testified, he and other air marshals had been warned that Al Qaeda was planning to sneak weapons onto long-haul flights.

The U.S. Government Accountability Office and the Department of Homeland Security Inspector General later issued reports about TSA’s plan. They discovered that I made my disclosure five days before the terrorist attacks were scheduled. The plan had intended to leave nonstop, long distance flights unprotected for two months. – Robert MacLean

After contacting agency authorities, who dismissed his concerns about the public safety impacts, MacLean disclosed the plan to a reporter. Soon, the story was splashed across the internet. Members of Congress expressed outrage over TSA’s plan to leave flights vulnerable at the worst possible time.

After first denying it, TSA said it made a mistake and canceled this plan before ever taking effect. The IG [inspector general] said that TSA blew cash on executive bonuses. Weeks later I cofounded the air marshal chapter of the Federal Law Enforcement Officers Association (FLEOA) Its not a union but a collective voice to work with Congress and agency officials to [promote] better safety and security. The air marshals service director asked the IG to investigate me and my FLEOA air marshal board for complaining about hazardous policies. He called us organizational terrorists. – Robert MacLean

Nineteen weeks after disclosing the email, MacLean says, TSA charged him with releasing Sensitive Security Information (SSI), a label it officially attached to the email message in the interim. MacLean lost his job as a result and, ever since, has been battling in the courts to get it back.

Robert MacLean testifies beside Susan Tsui Grundmann.
Robert MacLean testifies beside Susan Tsui Grundmann.

Last year, the Court of Appeals for the Federal Circuit heard MacLean’s case and ruled unanimously in his favor. It was an impressive victory in a court where whistleblowers rarely win. Nevertheless, the administration appealed the decision to the U.S. Supreme Court, where oral arguments are scheduled for November 4. Mr. MacLean’s case demonstrates how the label “sensitive” can be abused to cover up agency mismanagement and to punish conscientious employees. A ruling in favor of the government in DHS v. MacLean would add to the woes of workers in “sensitive” positions.  Rep. Stephen Lynch (D-MA) described MacLean’s situation as “a disgrace to us as federal employers.”

Dr. Robert Van Boven blew the whistle on mismanagement he observed between 2007 and 2009 as a physican scientist and director of the VA’s traumatic brain injury research program in Austin, Texas. The program, funded by the VA with $6.3 million dollars, was supposed to help an estimated 300,000 veterans diagnosed with TBI, and 2 million civilians annually diagnosed with the injury. Ultimately, it helped no one, said Van Boven.

With training at Harvard, Northwestern University and seven years post doctoral research at Hopkins and NIH, I thought this was a perfect opportunity for a neurologist scientist to make a difference. But within weeks at the helm I learned that 2.1 million–approximately 1/3 of the funds provided to the BIRL (brain imaging recovery lab)–had already been spent on ghost staff as well as an unqualified administrative clinician performing non-credible diabetic research unrelated to TBI. He depended on the technical support of a semi-retired research contractor who hadn’t published in 10 years. He’d been fired from his immediate past employer and engaged in billing which I believed to be fraudulent. The team had not collected any data for 10 months. These findings were subsequently confirmed by the OIG. My efforts to terminate the contract and services and invalid research were overruled. My protest resulted in calls for my resignation and involuntary reassignment under a person I accused of wrongdoing. – Dr. Robert Van Boven

What happened to Van Boven after that is a cautionary tale about entrusting agency officials with providing whistleblowers due process and relief from reprisals.

The retaliation and counter claims that followed were akin to Kafka’s “The Trial.” False allegations were withheld from me, I was not able to confront witnesses, evidence of retaliatory animus by those accused of wrongdoing were stricken from the scope of investigations, and I was found guilty without an opportunity for defense.

Dr. Robert Van Boven, testifying, with Robert MacLean.
Dr. Robert Van Boven, testifying, with Robert MacLean.

Van Boven adds, “[D]uring the ABI [administrative board investigation] hearing any mention of senior management misconduct or waste was stymied. “The chief of staff was also authorized by VA headquarters to be the deciding authority for the grievance against him, and this chief of staff found himself ‘not guilty.’”

The internal investigation Van Boven describes, as bizarre as it sounds, is nearly identical to the internal “due process” provided to whistleblowers who hold security clearances, which includes many employees of intelligence agencies, but also agencies like the Departments of Agriculture and Health and Human Services, and the U.S. Geological Survey. On a playing field so unbalanced, whistleblowers have almost no chance of winning.

Rep. Eleanor Holmes Norton (D-D.C.) warned that this transformation of the federal workforce poses a major threat to the Whistleblower Protection Enhancement Act (WPEA) and the entire civil service.

To close the “sensitive jobs loophole” created by Kaplan v. Conyers, Rep. Holmes Norton has introduced legislation in the House (H.R.3278) and Sen. Jon Tester has introduced a similar bill (S.1809) in the Senate, said Shanna Devine at the Washington, D.C., office of the Government Accountability Project. Both bills have bipartisan support. But, would passing those bills be enough?

The administration’s reaction to the WPEA suggests that it would continue to push federal jobs in the direction where workers have the least protection and require more jobs to have security clearances. Ostensibly, Presidential Policy Directive (PPD)-19 and the Intelligence Authorization Act for FY 2014 created whistleblower protections for employees with clearances, but both offer more process than justice. They rely on internal investigations to determine the facts and leave final decisions in the hands of agency heads. Dr. Van Boven’s testimony convincingly shows why that is a bad idea.

The testimonies provided at Tuesday’s hearing point to a fundamental truth of whistleblower protection: Providing weak protections to whistleblowers in “sensitive” positions imperils the rights of all whistleblowers. The likely result is more secrecy, less accountability and, ultimately, an end to rule of law.

 

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Credits:  Photos by Linda Lewis

Case citations: Kaplan v. Conyers, 733 F.3d 1148 (Fed. Cir. 2013), cert. denied 2014 U.S. LEXIS 2280 (U.S. Mar. 1, 2014)

Video:  September 9, 2014 hearing, Committee on Oversight and Government Reform

Related Documents:

Examining the Administration’s Treatment of Whistleblowers,” Committee on Oversight and Government Reform, September 9, 2014 hearing. Video and prepared statements of witnesses.

Designation of National Security Positions, Proposed Rule, Federal Register, Vol. 75, No. 239, Tuesday, December 14, 2010

Government Accountability Project overview of “Robert MacLean, Air Marshal Whistleblower” case, with links to court rulings