Many federal employees work for an agency for years–often for an entire career. During that time, political appointees come and go. Elections are held and a new administration may take your agency in a different direction. When that happens, some employees are not happy with how their agency’s programs are being administered. Perhaps they feel a public service duty to explain why the new policy is unwise or may disadvantage someone. Perhaps a federal employee believes his or her hard work has been in vain when new decisions are made.
Freedom of speech and managing a federal agency which has a large number of employees creates plenty of opportunity for litigation and disagreements. Most agencies spend large sums of money and employ large numbers of people. In making policy decisions, there is likely to be disagreement among employees, managers and political appointees about the merits of decisions that are made and how an agency will use its resources.
If you have a beef with how your agency is being managed, or spending its money or just do not like the policy decisions that are being made, how much freedom do you have to go public with your opinion on how the agency would be run if you were in charge?
A word to the wise: A federal employee that takes issue with policy decisions by going to the media or seeking publicity to attack your agency’s decisions may find that keeping a federal job is difficult. In some cases, the employee who speaks out on these issues will be fired.
Here is one example that may provide insight into how a federal employee, even a senior manager, can be fired after publicly disagreeing with agency policy decision. Teresa Chambers is the former Chief of the US Park Police. She was hired into this position in 2002 and fired by the agency in 2004. Appealing the decision of a federal agency is not easy or inexpensive. In this case, the former federal employee had an advantage of support that apparently helped defray the cost of her defense by setting up a legal defense fund to retain professional legal advice and representation. Some federal employees opt to represent themselves or use a representative that may not be an expert in the legal minefield of federal employment case law. While it would be hard to overstate this advantage in handling a federal case , this former federal employee did not prevail before the MSPB.
Chambers’ problems with the agency arose after she expressed her concerns about the Park Police budget and a plan to redeploy officers to a House subcommittee staffer and to a reporter for the Washington Post. On December 2, 2003, the Washington Post published an article entitled “Park Police Duties Exceed Staffing.” The article contained several statements about Park Police resources and deployment strategies that it attributed to Chambers.
She appealed the removal decision. An administrative judge (AJ) found the firing of Chambers was justified after sustaining four of the six charges which were the basis for her removal. The AJ upheld the charges of making public remarks regarding security in public areas, improperly disclosing budget deliberations, failing to carry out a supervisor’s instructions, and failing to follow the chain of command.
The case went before the full MSPB which upheld the removal action.
The Board found that there was not a basis for overturning the credibility findings by the administrative judge. It also concluded that Chambers did not make a protected whistleblowing disclosure that would provide a defense for keeping her federal job.
It is a prohibited personnel practice for an agency to take or threaten to take a personnel action because of “any disclosure of information by an employee or applicant which the employee or applicant reasonably believes evidences” a “violation of any law, rule, or regulation,” or “gross mismanagement, a gross waste of funds, an abuse of authority, or a substantial and specific danger to public health or safety.”
In plain English, a federal employee who is a “whistleblower” cannot be fired or disciplined by the agency.
Anyone who reads federal employee appeal decisions will often see the federal employee (or the former federal employee) claiming to be a whistleblower as a defense. Sometimes the argument works; often it does not because the third party does not agree that the person met the definition of a whistleblower.
When can a federal employee speak out in public when disagreeing with an agency’s policy decision?
Federal employees under the gun are sometimes quick to roll out the whistleblowing defense. But, before firing up your computer to send e-mail to news organizations or getting on the phone to explain how your agency is making huge mistakes with public funds, take careful note of this quote from the MSPB in the Chambers decision: Protection for whistleblowers “is not a weapon in arguments over policy or a shield for insubordinate conduct. Policymakers and administrators have every right to expect loyal, professional service from subordinates . . . .”
According to the MSPB, “a policy disagreement can serve as the basis of a protected disclosure only if the legitimacy of a particular policy choice is not debatable among reasonable people.”
That leaves a lot of room for debate and interpretation. Here is how the MSPB described the situation in the Chambers case:
[T[he appellant publicly disagreed with the choice, made by officials who outrank her after extensive study by experts, to cut back on Park Police patrols along the Baltimore-Washington Parkway, and to reduce Park Police enforcement of traffic and drug laws, in favor of increasing security at monuments and memorials on the mall. Further, the appellant, the highest-level management official at the Park Police, publicly supported the police union’s complaints about the change in mission emphasis mandated by Congress and officials in the Department of the Interior who outranked her. The appellant also publicly advocated more than doubling the size of the Park Police force — whose budget had already doubled in the 4 years preceding the appellant’s interview with the reporter — so that parkway patrols and enforcement of drug laws outside the national capital core could continue. She did this knowing that legislative appropriators and executive branch policymakers did not share her view….
In effect, the Board found that the agency had a right to expect loyal, professional service from the Park Police Chief and was justified in firing her because she did not provide this service.
But, in an aspect of the case that may provide a faint ray of hope for some would-be federal whistleblowers, the case decision was not unanimous. Board Member Barbara Sapin disagreed with the majority decision and would have preferred not to have fired Chambers based on her belief that Chambers made disclosures that should have been protected.
