We make our living representing whistleblowers. It’s fascinating work, and not many days go by that the courage of our clients doesn’t inspire us. They speak the truth when keeping silent would be far easier. We represent mostly whistleblowers under the False Claims Act or the relatively new SEC or IRS Whistleblower Programs. They are usually insiders at private companies that cheat the government via programs and contracts. But there’s another universe of whistleblowers that we want to talk about–the government whistleblower.
The government employee who knows of wrongdoing and feels compelled to speak out. What rights and protections do these people have? While they generally not entitled to a “relator’s share,” in most situations, they do have legal protections. The , most notably under the Whistleblower Protection Enhancement Act (WPEA) of 2012.
The issue is a timely one, as the chaotic first weeks of the Trump Administration have seen an unprecedented disruption to the normal functioning of the government. Just look back to the sudden rollout of the immigration order. Think of the airport scenes, the confusion, the changing interpretations from the White House, and so on. It is indeed a very new day.
Government Employees Wonder if They Should Become Whistleblowers
In this intimidating environment, we know that many federal employees wonder what to do when their government forbids them from communicating with the public. Or, how to handle an improper or illegal order. We hope this article will help.
Silence is not the only option. Look at what happened already:
- In the National Park Service, alt-government accounts have popped-up to oppose the President’s gag orders relating to climate-change and science, or to correct the President’s misinformation about the crowd size at his inauguration.
- Federal employees at several other agencies, including the embattled E.P.A., began posting similar alt-government sites on social media as a result of the President ordering the official agency sites down.
- Over 1,000 State department officials signed a “letter of dissent” cable opposing the Executive Order barring immigration from seven predominantly Muslim countries.
- HHS employees rose up in protest and forced the White House to temporarily withdraw its order that the agency cease advertising the deadline to enroll in the Affordable Care Act exchanges.
- And most notably, Acting Attorney General Sally Yates notified all Department of Justice employees that as long as she was in charge of the department, it would not defend the President’s travel ban in court.
Sally Yates, as she surely expected, was fired immediately. But her actions had a powerful impact. They were reminiscent of the principled stand taken by Archibald Cox and Eliot Richardson during the Watergate crisis.
As these examples make clear, federal whistleblowers–at all levels–can have a real impact in fighting executive overreach. With one party in control of both the executive and legislative branches and an executive acting forcefully and bluntly, the need for government whistleblowers is real.
Blowing the whistle on wrongdoing in government is both part of our national history, and specifically protected under federal law.
History of Government Whistleblowers
We have always relied on courageous government employees to come forward and expose wrongdoing by our government. The Continental Congress enacted America’s earliest whistleblower law in 1787. The law declaring it “the duty of all persons in the service of the United States” to provide information of misconduct, committed by anyone in the service of these states. The law was prompted by an incident in which sailors and marines serving on board the warship Warren had secretly informed the Continental Congress of wrongdoing–including torturing prisoners of war–by Commander-in-Chief of the Continental Navy, Commodore Hopkins. Hopkins eventually sued two of the whistleblowers, lieutenant Marven and midshipmen Shaw. The Continental Congress, recognized the importance of their actions and our young nation’s duty to protect whistleblowers. As a result, it provided funds to successfully defend the suit.
In 1863, President Lincoln urged the passage of and signed the False Claims Act. That law incentivized whistleblowers to come forward in response to rampant defense contractor profiteering during the Civil War. Congress substantially amended the statute in 1986. Those amendments gave rise to a specialized bar of lawyers of which we are proudly members. Together with our clients, whistleblower lawyers have returned tens of billions of dollars to the federal treasury.
In recent years, Congress passed laws prohibiting the federal government from silencing employees who speak out about wrong-doing. These laws will be getting a workout, we predict, in the years of the Trump Presidency.
Current Protections For Government Whistleblowers
Here are some resources for government whistleblowers, under current law.
The law protects most government employees from retaliation for disclosing violations of laws, mismanagement, waste, abuse or danger to health and safety. In addition, the law protects government employees against censorship of scientific research and analysis. This protection includes even inaccurate disclosures, if made in good faith. See the following link for a list of the kinds of employment actions that are prohibited by the Office of Special Counsel–an independent government agency that that looks out for federal whistleblowers. Examples include coerced political activity, nepotism, inappropriate recommendations, abuse of authority, and whistleblower retaliation. The OSC also advises agencies on compliance with whistleblower protections, like the anti-gag rule. See here and here.
Employees who experience retaliation can file a grievance with their union, a complaint with the Office of Special Counsel, or an appeal with the Merit Systems Protection Board. Remedies include reinstatement, back pay, and attorneys’ fees. No, you won’t be made rich as a federal employee whistleblower, but you do enjoy substantial legal protections, and vindication can sometimes be its own reward.
In short, “Federal Employees have the right to make disclosures of wrongdoing” and cannot be punished for doing so. The WPEA passed both houses of Congress unanimously in 2012 and makes it clear that speaking up is legally protected activity. We never say “never” to clients or prospective clients, but it would be very difficult for the President to abolish this law or this agency. He might try to staff it with do-nothing types to weaken it, but it seems highly unlikely that the OCS or the laws it enforces won’t still be on the books for the duration of his Presidency.
It is a Time For Government Whistleblowers to Be Heroes
No, this is not a normal time. It is a time of risk. There are some things a President can do, and some that they cannot do. It is a time for heroes to stand up when the circumstances compel it.
And there is precedent: Shaw, Marven, Ellsburg, Yates. The risks are as real as they always have been and greater than any time since the 1970’s. The law provides protection, and lawyers of conscience both inside and outside the government are available to help.
