US federal whistleblowers still see agency retaliation

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Jack Moore – November 15, 2011

For federal employees alleging serious agency wrongdoing, blowing the whistle can often feel like a David and Goliath battle. There are a number of barriers that don't just give federal whistleblowers pause, but in many cases actually stop them from going to a superior or the public with their concerns.

A new report from the Merit Systems Protection Board, "Blowing the Whistle: Barriers to Federal Employees Making Disclosures," paints a complex portrait of when federal employees blow the whistle as well as their perceptions of both protections in their favor and actions taken against them in retaliation.

The report relied on surveys of federal employees from a slew of agencies and department and compared them to a similar survey conducted in 1992. MSPB addressed the report to President Barack Obama and Congressional leaders.

Increased retaliation?

While the perception of agency wrongdoing by employees has actually declined in the nearly 20 years since the first report, the perception of retaliation for speaking out about such wrongdoing has not seen a similar decline.

In both studies, about the same number of respondents — 36 percent — said they had said they faced retaliation or the threat of retaliation for reporting misconduct.

While the overall number remained the same, the responses to the 2010 survey showed some federal employees perceived "dramatic increases," in some forms of retaliation.

For example, the perception that disclosing agency wrongdoing led to an employee being fired increased by nine times. The perception of promotion denials and suspensions more than doubled.

However, outing a whisteblowing didn't always lead to retaliation or other "unpleasant" actions, according to the report. The number of respondents who reported that no action had been taken against them for exposing wrongdoing increased to 44 percent from about 37 percent in 1992. And, the perception that agency higher-ups were angry with whistleblowers declined from nearly 39 percent to 28 percent.

Also, more respondents indicated that they were able to remain anonymous after reporting wrongdoing. The number of whistleblowers that were identified by their agency dropped to 42.5 percent, from 53.1 percent in 1992.

Training about whistleblower protections has also increased. However, despite being required by law, the MSPB report found many employees never received such training.

Who do whistleblowers turn to?

Contrary to pop culture depictions of federal employees sharing secrets with reporters, most federal whistleblowers felt more comfortable sharing their concerns with government watchdogs.

For example, agency inspector generals, the Office of Special Counsel and the Occupational Safety and Health Administration all scored highly in terms of whether whistleblowers believed they could remain anonymous and their allegations taken seriously.

Congress and the media, on the other hand, were rated much lower on both counts. The report suggested federal employees may have more faith in other federal employees to investigate claims of wrongdoing.

The report also mentioned the generally low regard for Congress and the news media held by the general populace.

Why they blow the whistle

The survey found the most important factor in determining whether an employee would report wrongdoing was not an employee's own punishment or reward but whether they felt exposing a wrongdoing would save lives.

For example, Paul Hardy, a regulatory review officer for the Public Health Service Commissioned Corps, found radiation exposure problems with a breast cancer screening device. When the Food and Drug Administration was preparing to approve the device anyway, Hardy went to the media, for which he received a negative performance review and was fired.

The Office of Special Counsel intervened on Hardy's behalf and the MSPB issued a stay of suspension.

MSPB Chair Susan Tsui Grundmann, in a foreword to the new report, wrote that agencies play a major role in whether employees decide to report wrongdoing. "The most important step that agencies can take to prevent wrongdoing may be the creation of a culture that supports whistleblowing," she added.

Changing the culture

In addition to OSC's recent interventions, Congress has also sought to strengthen whistleblower protections.

Last month, the Senate Homeland Security and Governmental Reform Committee approved the Whistleblower Protection Enhancement Act of 2011. The law would extend protection to the intelligence and national security communities and block agencies from revoking security clearances in retaliation for protected whistleblower activities.

While whistleblower protection laws are essential, MSPB said in its report, the shift in agency culture toward recognizing whistleblowing as a public obligation is just as important.

The agency recommended that agencies create a culture where employees feel supervisors are open to being told about wrongdoing, that reporting misconduct would result in positive changes and that employees wouldn't be "shunned" for doing so.

"We firmly believe that agencies should publicly praise their whistleblowers," MSPB stated in the report. "Once a problem exists, ignoring it is unlikely to accomplish anything except make it worse. But, going public and saying, 'We have great employees who care about preventing wrongdoing and a culture that supports them,' speaks far more highly of an organization than trying to distract people from the issues by attacking the person who comes forward."

Protesters who marched on the Environmental Protection Agency last week demanding stronger whistleblower protections also cited entrenched agency culture as a barrier for those seeking to sound the alarm.

"The culture inside the agency does not permit anyone to expose or talk about corruption inside the agency," said Marsha Coleman-Adebayo, a former EPA official, who accused the agency of misconduct in South Africa. She won a case in court but, eventually, lost her job.

The MSPB report called on the President, Congress and agency leaders to better "set the tone" about whistleblowing as a public duty. "The law is important," it concluded, "but the law cannot do it alone."

Original article on Federal News Radio website

See complete MSPB report (pdf)