Charlotte Yee worked for the U.S. Department of Labor for twenty (20) years. During her last five years, she served as a manager and a whistleblower against waste, fraud and discrimination. She was physically attacked by her boss and eventually left federal service for her own safety. On Monday, she posted a letter about her personal journey confronting the problems with the Senate’s version of the Whistleblower Protection Enhancement Act (WPEA). “Last week, when I signed MISC’s change.org petition to pass the bill I did so with an asterisk,” Yee says. “I did so with the understanding that the bill’s main supporters would then work fervently to get the best parts of the bill passed and the poorest parts thrown out. In retrospect, it may have been a bone-headed and risky action: one made from the heart and not from the head.” She realizes that “With any type of legislation, the devil is in the details.” The bottom line on the Senate bill is that it “is a trojan horse.” She particularly objects to provisions that would allow the Merit System Protection Board (MSPB) to deny whistleblowers a right to go to federal court either because MSPB chooses to issue a summary judgment, or because MSPB predicts that a federal court would dismiss the case. As the MSPB currently rules against whistleblowers over 98% of the time, it is easy to predict that very few cases would get MSPB’s permission to go to federal court. Yee asks MISC to, “seriously consider the repercussions of the Senate bill as proposed.” You can read the full text of her open letter in the continuation of this blog entry.
S.372 – Whistleblower Protection and an Open Letter to MISC
Posted in November 29th, 2010
by Charlotte in Accountability, Current Events, Federal Employee Law & Courts, Ongoing Saga, the Quest for Answers, Whistleblowers, Working Conditions
Dear Make It Safe Campaign (MISC),
Throughout the course of this inadvertent journey into a whistleblower’s world, I’ve found few true heroes. Tom Devine of the Government Accountability Project (GAP) is among the handful I can say has no truer agenda than defending needed transparency and protecting the underdogs that reveal it. His work with the Government Accountability Project (GAP) spans decades and his institutional knowledge of accountability protection is unparallelled.
I cried in relief when GAP announced it would defend Martin Salazar, a whistleblower whose EEOC disclosures led to criminal prosecution and jail time. GAP was there for Mr. Salazar when the rest of society ran away in fear. GAP was there for Robert MacLean too, when his attorney could no longer foot the bill from years of litigation in MSPB as well as our US Courts. On a personal note, when the Department of Labor dismissed my own complaints of foul play with scores of affidavits attesting to the destruction of evidence not just in my case, but in a policy that ordered such, GAP put me in touch with the people who could order remedy. (A point made when Citizens for Accountability and Ethics in Washington (CREW) filed a complaint with NARA and NARA ordered an investigation into the matter).
It pains me therefore, to disagree with MISC here, on the fate of Senate Bill 372.
Last week, when I signed MISC’s change.org petition to pass the bill I did so with an asterisk. Robert MacLean, appealing to his supporters, made a number of personal pleas to get the legislation out of the Senate and into reconciliation mode. When I put my name to the petition, I did so with the understanding that the bill’s main supporters would then work fervently to get the best parts of the bill passed and the poorest parts thrown out. In retrospect, it may have been a bone-headed and risky action: one made from the heart and not from the head.
My concerns with the Senate bill still stand. You can read more on the analysis here: Good Intentions, Bad Law: The Proposed Whistleblower Act S.372. With any type of legislation, the devil is in the details. While much has changed since then — notably my elevated opinion of MSPB leadership — laws should be written for the lowest common denominator: those that would seek to circumvent them.
Put briefly, as it now stands, Senate Bill 372 is a trojan horse. On its surface, it promises the benefit of a jury trial in district court. In reality however, it brings the worst of both worlds (i.e. MSPB and District Court) into play.
MSPB currently has special rules that don’t apply in US Courts. Under Senate bill S.372, those special rules — such as the use of hearsay and sua sponte in camera review — are still valid. Under Senate bill S.372, the use of the worst aspects of district court are then added to MSPB’s arsenal. Namely, under the proposed Senate iteration, MSPB is now permitted two horrible actions: the right to predetermine whether a case would be dismissed, and the right to render summary judgment. In combination with overreaching subjective authority (i.e. hearsay and sua sponte in camera review), under the proposed law, MSPB would have more authority than the US court system and alongside with it, essentially unchecked power. Further, as the aforementioned analysis notes, the right to a jury trial is precluded in essence by MSPB’s right to predetermine dismissal. Should MSPB chose not to hear a case, the whistleblower appellant has no option other than bringing the case before the Federal Circuit, sans hearing. Those decisions are, as is current practice, deferential: not questioned beyond whether such a decision was outside of permitted statute.
Returning to my current evaluation of the new MSPB as a purveyor of governmental merit does not change my opinion. As a quasi-judicial entity in the Executive Branch, MSPB is an interpreter of law, not a creator of it. To the extent that it can divine lawmakers’ intent, it does. To the extent that hard rules are put in place, it abides by them. Such is the nature of our tripartite democracy. In attempting to see this from MSPB’s point of view — the new whistleblower legislation makes their mission of retaining merit in government more difficult, and not less. My own viewpoint here, is not from that of an advocate, but as one who has experienced MSPB and MSPB laws firsthand. The new laws and the processes needed to adjudicate them are in essence, yet another twist in the already complex Gordian knot created by the Civil Service Reform Act (CSRA) and the first Whistleblower Protection Act (WPA). As such, my own preference would be legal simplification by lawmakers rather than an added layer of complexity.
As both a pragmatic matter and one of loyalty to individuals, I still stand with MISC in voicing a need for whistleblower protection. I also exercise my common sensibilities too however, in asking MISC to seriously consider the repercussions of the Senate bill as proposed.