By Andrew P. Bakaj, Esq.
At THIS moment, the legal issues involving whistleblowing in the Trump era is no different than whistleblowing under Presidents Obama and Bush. The difference is that many federal employees and contractors are now vocal about it because they are concerned that President Trump or his appointees/designees may direct an action perceived to be illegal. As a result, many of those individuals will come to rely on federal whistleblower laws to protect them as they engage in protected activity. Accordingly, it is in the federal employee’s and contractor’s best interest to become familiar with one CRITICAL component of whistleblower protection: the definition of a PROTECTED disclosure. In order to be protected from retaliation/reprisal, the disclosure must be viewed – BY LAW – as “protected.”
What is a protected disclosure?
A protected disclosure, ie. LAWFUL whistleblowing, is a disclosure of a violation of law, rule, or regulation; fraud, waste, or abuse; mismanagement, or a substantial and specific danger to public health or safety. The disclosure need not be 100% accurate, because the legal theory is that the government doesn’t want people running around conducting their own “investigations” into the various issues they intend on disclosing. The disclosure merely has to be based on a reasonable belief that a violation was taking place. That may appear to be a low bar, but investigators will hone in on that should they intend on closing-out the case without investigation. Those issues are very fact specific and can get tricky. Let’s leave that one there for now.
Next, the disclosure must be made through proper channels. Some employees are able to make a disclosure publicly to the media. Others are most certainly not. For example: members of the Intelligence Community are prohibited from making any disclosures to the media. In fact, such activity by members of the Intelligence Community is known by the phrase “unauthorized disclosure” or, in laymen’s terms, “leak.” Not only are members of the Intelligence Community prohibited from engaging in unauthorized disclosures, doing so opens up the strong possibility of a criminal investigation and prosecution. Generally, disclosures are protected if you make it through your chain-of-command or to an Office of Inspector General.
Terminology & phraseology – let’s turn to the easy one first: a substantial and specific danger to public health or safety. The disclosure here has to be specific and there must be an actual threat to the health and safety of the general public. This means what it says.
Now, let’s turn to the key phrases “Fraud, Waste, & Abuse,” “Mismanagement,” and “Law, Rule & Regulation.” These words matter, and its misinterpretation can lead to the door being left wide open for retaliatory action without any safeguards to protect against it. In many cases, this is where a whistleblower reprisal case is won or lost.
Fraud, Waste, Abuse, and Mismanagement versus Law, Rule, or Regulation
Many individuals try and articulate that a “fraud” is taking place within their agencies and, as a result, expect that they cannot be retaliated from disclosing it. Not so fast. How do you define waste? What is a fraud? What is abuse of authority? What is mismanagement? Does the person have to be in a “management” billet to “mismanage?” This, right here, is a hot mess. The best way to define these is to link the fraud, waste, abuse, or mismanagement to a violation of law, rule, or regulation. Think of it this way: if something is wasteful, it should be illegal.Therefore, be sure you’re able to tie your disclosure to a violation of LAW, RULE, OR REGULATION. If you’re not sure, seek counsel. Down the road, should you be retaliated against and have to articulate the basis for your disclosure, you don’t want to be left relying on the position that what you witnessed “felt” like a fraud or a waste of government money and therefore your supervisor “mismanaged” the program. That’s conclusory. What LAWS, RULES, or REGULATIONS did they VIOLATE?
Policy Disputes are NOT Protected
Potential whistleblowers need to understand that, by law, a disclosure of a policy dispute is not protected. So, what exactly is a policy dispute? A policy dispute is when you disagree with leadership on what approach or position to take on a particular issue. Policy disputes occur all the time in Washington. That’s just a fact. And remember: the President, his cabinet, and his appointees have broad authorities and are, in fact, empowered to create and implement policies and strategies. If, however, they direct an illegal action, that’s different. This is a critical point because if you find yourself disagreeing with the President or his cabinet on the “direction” they’re taking your department or office, your disclosure may not be protected – unless the disagreement is rooted in law, rule, or regulation. Given the current climate, expect to defend against retaliatory action with an allegation of insubordination being at the top of the list. However, if you’re a member of the Intelligence Community expect an action involving your security clearance. As of 2012 and 2014, retaliating via a security clearance action is a violation of law and regulation.
What does it mean to be Protected from Reprisal?
Let’s be clear: whistleblower “protection” doesn’t protect you from your superiors taking retaliatory actions against you. What your protected disclosure does is afford you the opportunity to CHALLENGE the action by asserting a whistleblower status, prompting an investigation to determine whether the action taken against you was in reprisal. This is absolutely important to understand. If you go into this thinking nothing will happen to you because of your whistleblower status, you will be in for a rude awakening. You need to go into this understanding how to properly disclose wrongdoing. Should, heaven forbid, leadership reprise against you, your legal status as a bona fide whistleblower will allow you to PUSH BACK by filing complaints in an effort to correct the record and protect yourself and your career.
What does all this mean?
In the coming months, and perhaps years, many federal employees and contractors will feel compelled to stand up for what they believe is right. Doing so is fraught with risk and, frankly, given the recent announcement that the President has issued a hiring freeze, an error on an employee’s part may lead to termination with no hope on finding alternative government work. So the stakes are high.
That being said, when it comes to making difficult choices about when and how to stand up and draw lines in the sand, you need to consult with yourself, your family, and with an attorney – a personal attorney. Remember, while it may be prudent to speak with government counsel, they do not represent you. In fact, government counsel will be the ones providing your leadership with the legal sufficiency to justify the retaliatory action against you.
In short, up-armor yourself and act accordingly.