Brave whistleblowers still face overwhelming odds

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“Alamo evening” by Steven Kennedy, Flickr CC.

In a recent article, “Democrats on Capitol Hill ask White House not to gag federal employees“, the Washington Post quotes from a Congressional letter to President Trump.

“As the new Administration seeks to better understand what problems exist in this area, this is an appropriate time to remind employees about the value of protected disclosures to Congress and inspectors general in accordance with whistleblower protection law,” their letter added.

I have worked with whistleblowers for 40 years and would like to share my thoughts with the President and Congress about the problems they face.
First, it’s important to know why federal employees “blow the whistle” to expose waste, fraud, and abuse of authority. Those who do tend to have powerful moral compasses, often rooted in a faith-influenced upbringing.Rather than take direction from supervisors implicated in wrongdoing, they follow their conscience and the Code of Ethics for Government Service that tells  them to “ Put loyalty to the highest moral principles and to country above loyalty to persons, party, or Government department. Uphold the Constitution, laws, and regulations of the United States and of all governments therein and never be a party to their evasion.”

Their absolutist conscience is so strong, they will obey that code and blow the whistle even when laws offer them scant protection and the full force of the Justice Department threatens to come down upon them. Some believe God is watching and are determined not to disappoint, regardless of the obstacles; others have a high sense of following their conscience. Failing to protect whistleblowers may temporarily discourage whistleblowing; but it allows problems to grow to the point that an organization risks irreparable harm when disclosure ultimately comes.

Whistleblower reprisal is not just an organizational disaster; it’s also a humanitarian disaster. To fulfill their legal and ethical obligations, federal employees face a brutal assault on their careers, finances, relationships, health and safety—attacks that may continue for years. In championing a cause important to all of us, they risk losing everything they cherish and own.

A multitude of laws now claim to “protect” whistleblowers but, for most, the assaults continue because Congress has not addressed two key disparities in the way whistleblowers and their abusers are treated.

One disparity exists in the frequency and severity of disciplinary actions taken against whistleblowers and retaliating officials. Retaliation is illegal under a number of federal laws but penalties are rare. Those who retaliate are more likely to be promoted than fired, whereas the reverse is true for those who blow the whistle—a lawful activity. Retaliatory criminal investigations are increasingly common.

Another disparity exists in the legal resources available to retaliating officials versus whistleblowers. Officials suspected of unlawful retaliation pay nothing for their legal defense by the deep-pocketed Justice Department, aided in many cases by their agency’s Office of Inspector General. No such aid is available to law-abiding whistleblowers, who pay the full cost of their legal representation—an expense likely to drag on for years due to government delays.

Firing a whistleblower tips the scales even more in the agency’s favor. Unemployed whistleblowers must rely on savings and credit cards to pay attorneys, food, housing and all of the bills that they had before blowing the whistle. Many end up in bankruptcy. By pressuring whistleblowers into avoiding or abandoning litigation, terminating a whistleblower  becomes a sophisticated form of witness tampering. Allowing federal agencies to adjudicate whistleblower complaints, as Presidential Policy Directive 19 does, further disadvantages the whistleblower, essentially putting the fox in charge of the hen house.

Because Congress and the Executive Branch have not remedied these disparities, whistleblowers continue to suffer and wrongdoers prevail, leaving all of us vulnerable to harm. The Whistleblower Support Fund tries to help whistleblowers where it can but is underfunded to meet the massive need.

Like federal employee whistleblowers, legislators and presidents take an oath to defend the Constitution and many also claim religious affiliations. If they take those commitments seriously, they must level the battlefield for employees who risk annihilation to keep theirs.

[ Cross-posted from Whistleblower Support Fund] 

 

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