Robbins: Here’s a look at the Whistleblower Protection Act
I suppose it was destined to ultimately come to this. From the time The Donald glided down his gilded escalator into the harsh glare of the political spotlight, it did not take a soothsayer to predict that one day some sort of major donnybrook would arise. When one is a pugilist, it takes little imagination to conceive that punch and counterpunch will be in the not-too-distant offing.
And so, alas, here is where we find ourselves.
Two whistleblowers have come forward alleging yet another instance of presidential misconduct. And although the president has railed against the assertion that his conduct was improper, he has done little to distance himself from the conduct itself. Instead of claiming, “Nope, it wasn’t me. I did nothing of the sort!” he has instead adopted the strange posture that his conduct was “perfect.”
Presumably, the impeachment inquiry will sort all of that out.
But let’s rewind this film a bit. The second step in this mess — the president’s conduct, wrongful or not, being the first — was taken by the initial whistleblower who reported the alleged presidential wrongdoing.
As you likely know, rather than bowing to process, the president has decried the inquiry as a “hoax” and, notwithstanding the first whistleblower’s apparent credibility, has bloviated that the whistleblower is akin to some sort of spy.
While the president is certainly entitled to his opinions, as our second president, John Adams once observed, “Facts are stubborn things.”
Let’s then get to the facts.
The Whistleblower Protection Act of 1989 is a federal law that protects federal whistleblowers who work for the government and who report suspected misconduct. Specifically, the act encourages federal workers to report the existence of activity constituting possible violations of law, rules, regulations, mismanagement, gross waste of funds, abuse of authority, or a substantial and specific danger to public health and safety.
A federal agency violates the Whistleblower Protection Act if the agency takes (or threatens to take) retaliatory action against any employee or applicant because of disclosure of potentially incriminating information by such person. Additionally, the WPA expressly provides that the statute is not to be interpreted as “authoriz[ing] the withholding of information from the Congress or the taking of any personnel action against an employee who discloses information to the Congress.”
The Office of Special Counsel investigates federal whistleblower complaints. In October 2008, then-special counsel Scott Bloch resigned amid an FBI investigation into whether he obstructed justice by illegally deleting computer files following complaints that he had retaliated against employees who disagreed with his policies. Then-Sen. Barack Obama made a campaign vow to appoint a special counsel committed to whistleblower rights.
In April 2011, as president, Obama fulfilled that promise, appointing Carolyn Lerner as special counsel. Today, the primary mission of the Office of Special Counsel is to safeguard the merit system by protecting federal employees and applicants from prohibited personnel practices, especially reprisal for whistleblowing.
Since the enactment of the WPA, Congress has expanded the protections for federal employees. Congress has also established whistleblower protections for individuals in certain private-sector employment through the adoption of whistleblower provisions in at least 18 federal statutes. Among these are the Sarbanes-Oxley Act, the FDA Food Safety Modernization Act, and the Dodd-Frank Wall Street Reform and Consumer Protection Act.
In general, claims for relief under the 18 federal statutes follow a similar pattern as that mandated by the WPA. Complaints are typically filed with the secretary of labor, and an investigation is conducted. Following the investigation, an order is issued by the secretary, and a party aggrieved by the order is generally permitted to appeal the Secretary’s order to a federal court. However, because 18 different statutes are involved in prescribing whistleblower protections, some notable differences exist.
For example, under the Department of Defense Authorization Act of 1987, individuals employed by defense contractors who engage in whistleblowing activities file complaints with the inspector general rather than the secretary of labor. Under some of the statutes, including the Commercial Motor Vehicle Safety Act and the Dodd-Frank Act, the secretary’s preliminary order will become a final order if no objections are filed within a prescribed time period. Various state laws also provide certain whistleblower statutes and protections and, as one might suspect, the specifics vary from state to state.
Though the president may take umbrage at the allegations raised against him, spitting venom at the whistleblower, calling for his head and demanding retaliation is verboten under law.
While the first half of President Adams’ quote is well known, the second half is equally instructive. The full quote goes like this: “Facts are stubborn things; and whatever may be our wishes, our inclinations, or the dictates of our passion, they cannot alter the state of facts and evidence.”
Chill, Mr. President.
The evidence will lead where the evidence leads and demonizing those who called you out will go you nowhere except mire you more deeply in this quickening quagmire.
Rohn K. Robbins is an attorney licensed before the bars of Colorado and California who practices in the Vail Valley with the law firm of Stevens, Littman, Biddison, Tharp & Weinberg LLC. His practice areas include business and commercial transactions, real estate and development, family law, custody and divorce and civil litigation. Robbins may be reached at 970-926-4461 or at his email address, firstname.lastname@example.org.