The Office of Special Counsel (OSC) is an independent federal investigative and prosecutorial agency. It enforces four federal statutes: the Civil Service Reform Act, the Whistleblower Protection Act, the Hatch Act, and the Uniformed Services Employment & Reemployment Rights Act (USERRA).
Mission of OSC and Gag Orders
OSC’s primary mission is to safeguard the merit system by protecting federal employees and applicants from prohibited personnel practices, especially reprisal for whistleblowing. With news media filled with reports about “gag orders” for federal employees in some agencies, OSC has issued a relevant press release:
The U.S. Office of Special Counsel (OSC) is releasing information on its enforcement of the anti‐gag order provision in the Whistleblower Protection Enhancement Act (WPEA). The WPEA…strengthened anti‐retaliation protections for federal workers. Under the anti‐gag provision, agencies cannot impose nondisclosure agreements and policies that fail to include required language that informs employees that their statutory right to blow the whistle supersedes the terms and conditions of the nondisclosure agreement or policy.
OSC writes that it has obtained 33 corrective actions addressing violations of the anti‐gag provision. These corrective actions require agency management to revise their policies for employees to include language stating that they have the right to “blow the whistle.” The anti‐gag provision of the WPEA is based on an amendment Senator Charles Grassley (R‐IA) has added to appropriations laws for a number of years. The amendment bars federal agencies from spending taxpayer funds implementing or enforcing a nondisclosure agreement that fails to inform employees of their rights and responsibilities under the whistleblower law. A gag order may fall under the protection of the whistleblower law.
Origins of the Political Kerfuffle
The recent political kerfuffle appears to have started with allegations that the Environmental Protection Agency (EPA) was restricting employees from communicating with the public. The EPA issued the following statement:
The EPA fully intends to continue to provide information to the public. A fresh look at public affairs and communications processes is common practice for any new Administration, and a short pause in activities allows for this assessment.
The press release from the Special Counsel does not conclude that any gag orders have been improperly issued to federal employees in this or other very recent instances. It advises agencies and employees that whistleblowing is a protected activity.
Who Can Become a Qualified Whistleblower?
Having worked in human resources in several agencies, here is unsolicited advice for any federal employee.
Declaring yourself to be a whistleblower is not sufficient. While an individual may consider his personal actions qualifying him as a whistleblower, a self-declaration does not automatically guarantee legal protection. Generally, a federal agency violates the Whistleblower Protection Act if it takes or fails to take (or threatens to take or fail to take) a personnel action with respect to any employee or applicant because of:
- any disclosure of information by the employee or applicant that he or she reasonably believes evidences a violation of a law, rule or regulation;
- gross mismanagement;
- gross waste of funds;
- an abuse of authority;
- or a substantial and specific danger to public health or safety.
Avoid False Assumptions
If a person believes he or she qualifies as a whistleblower, or will qualify as a whistleblower, it may be wise to seek legal counsel before putting your valuable federal career at risk. Not every action, in fact most actions, taken against an employee may not qualify as protected whistleblowing activity. (See Proving Retaliation is ‘In Reprisal For’ Blowing the Whistle)
There are also other considerations. A federal employee who believes conduct constitutes whistleblowing and is appealing a personal action taken by the agency has several avenues of appeal. Generally, an employee cannot use every appeal avenue available but will be limited to one.
There are many documents extolling the virtues of a federal employee blowing a whistle. There are legal protections available that encourage blowing the whistle. A federal employee can perform a valuable public service when problems covered by the whistleblower law are brought to light. Based on personal observation from having worked in several agencies, blowing the whistle is not an action to be taken lightly.
Are You Really Ready to Blow the Whistle?
Some people who engage in whistleblowing have regretted their actions. Keep in mind, a whistleblower who works in an agency, even one with a good case, is not immune from a variety of actions that can be taken by the employing agency. There is also a good chance that the initial allegations will not be favorably received by an agency.
Remember Edward Snowden? These cases are often complex. Snowden is now a North Carolinian by birth and living in Russia, happily or otherwise. While many consider him to have performed a valuable public service by revealing the extent of our government’s surveillance activities, his life is forever changed as a result of his actions.
Some whistleblowers become obsessed with seeking justice. Their case may be a good one. Even if a whistleblower is eventually found to have a good case, the road from making an initial allegation until final resolution can be long, lonely and painful. It is not an action to take lightly.
Some whistleblowers believe, probably correctly, they are alone in fighting the resources of a federal agency which employs smart, experienced professionals. The job of these professionals may be to defend the agency to the best of their abilities. The consequences of going down this road may exact a significant personal toll and may include destroying or harming personal relationships if a case drags on.
At a minimum, remember this advice from Davy Crockett: “I leave this rule for others when I’m dead. Be always sure you’re right — THEN GO AHEAD!”