“Gross Waste:” Do Fed Employees Know It When They See It?
by Mark D. Roth, Esq. |
Employees who see wrongdoing by their superiors are rightfully cautious in deciding to “blow the whistle” on fraud, waste, and abuse for fear of retaliation. The latest striking example of federal employees’ reluctance to disclose obvious waste is the so-called “GSA scandal” in which 300 employees were assigned training at the M Resort Spa Casino outside Las Vegas.
The outrageous lavishness of the $823,000 conference, which included sessions with mind readers, is well-documented. What is not known is why only one brave individual reported the gross waste of funds to the agency’s inspector general while the rest of the trainees somehow rationalized that this was either business as usual, not a mess that they wanted to step into, or perhaps was just not serious enough to report.
The GSA scandal begs the question as to whether there are some federal employees who do not know what qualifies as a “gross waste of funds” under the Whistleblower Protection Act (5 U.S.C. §2302). The WPA makes it a prohibited personnel practice for agencies to retaliate against employees who report through the proper channels (e.g., Office of Special Counsel, an agency’s inspector general) “gross mismanagement, a gross waste of funds, an abuse of authority, or a substantial and specific danger to public health or safety.”
One problem here is that all of these types of wrongdoing are only just very generally described in the WPA. It is no surprise then that 58 percent of federal employees surveyed said they would not blow the whistle due to concerns that an event might not “rise to the level of fraud, waste abuse, unlawful behavior, or a safety or health danger,” according to a recent Merit Systems Protection Board report. Another 58 percent said they might not disclose wrongdoing because of concerns it is not serious enough.
It is, of course, important to know that so long as the employee “reasonably believes” that the wrongdoing rises to the level covered by the WPA, he or she has the right to disclose and be protected from reprisal. Nevertheless, it would not hurt to briefly refresh our memories as to what qualifies as a “gross waste of funds” under the law.
Almost two decades ago, the MSPB attempted to define this term, noting that Congress did not establish a test for a “gross waste of funds.” Relying on Black’s Law Dictionary, the Board concluded in Nafus v. Dep’t of the Army (1993) that this term “constitutes a more than debatable expenditure that is significantly out of proportion to the benefit reasonably expected to accrue to the government.”
Nafus involved a Department of the Army computer programming analyst who worked at the Watervliet Arsenal in upstate New York. The computer programmer was removed for unacceptable performance after he protested the purchase of what he believed was an excessive amount of personal computers and software. He appealed this adverse action to the MSPB, claiming that the arsenal retaliated against him for blowing the whistle on a gross waste of funds and gross mismanagement.
The employee claimed that four out of seven computers the arsenal purchased were unnecessary and cost approximately $12,000, or less than 1 percent of the arsenal’s annual computer budget. The Board found that these expenditures did not equate to a gross waste of funds or gross mismanagement. However, it cautioned that “[a]ny allegation of gross waste of funds must be looked at in context, and here the allegation of gross waste was that these items were purchased at all, not the cost of the items.”
In subsequent whistleblower reprisal appeals, the Board found in Van EE v. Environmental Protection Agency (1994) that an EPA electrical engineer did report a gross waste of funds when he when he testified before Congress about a $400,000 desert tortuous study, which he deemed was unnecessary and inconsistent with a legislative mandate. Likewise, the Board found a gross waste of funds in Parikh v. Dep’t of Veterans Affairs (2008), in which a VA physician reported that the agency kept a facility targeted for closure fully staffed even as its workload was transitioned to other facilities.
Deciding to become a whistleblower is not an easy decision to make. It can be rife with serious negative ramifications for the employee. It is not unusual for very good people who are excellent employees to suddenly become subjects of an investigation or alleged poor performers despite years of good performance reviews. In making the decision whether or not to disclose a perceived improper management decision, employees should contact an attorney who specializes in federal employment law.
It is crucial that federal employees who have disclosed alleged wrongdoing and are being subjected to retaliation not “go it alone.” They must be represented by counsel. An attorney knowledgeable in federal employees’ right and avenues for relief could help them prepare a complaint to the Office of Special Counsel or represent them before the MSPB if the OSC decides not to pursue the matter or does not act within 120 days of the filing of the complaint.
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by Mark D. Roth, Esq. |