The following op-ed by GAP Legal Director Tom Devine appeared on the website of Federal News Radio on May 22, 2014.
Historically, whistleblowers are magnets for distrust and retaliation. Actions to silence them and suppress their message are understandable from a basic survival instinct. For federal managers, if an organizational threat is perceived from anyone, the basic survival instinct to eliminate the threat by crushing the whistleblower is strong. But such knee-jerk responses are wrong, unnecessary and usually a counterproductive lose-lose scenario for all concerned.
Ironically, federal whistleblowers normally act out of loyalty to their agency or its mission. If they successfully gain the trust of superiors, overnight their reputation becomes one of a problem solver, not a threat. If more managers view them through this prism — seeing whistleblowers as engaging in the freedom to contribute rather than dissent — then the consequences from disclosures will shift sharply from mutually negative to mutually positive.
Over the last quarter-century there has been a legal revolution in rights both for government and corporate whistleblowers, who are lionized by the public as never before. But they are a source of increasing conflict within organizations. Rates of retaliation actually have risen as rights have been created or strengthened.
It shouldn’t be this way, nor does it have to be.
When dealing with whistleblowers, federal managers should be cognizant of lessons learned:
- Retaliation conflicts are unnecessary: Whistleblowers want to resolve matters internally. An Ethics Research Center study found that 96 percent stay inside, not breaking ranks. Think about that in conjunction with a Price Waterhouse Coopers survey finding corporate whistleblowers to be more effective in exposing crimes against their employers than auditors, internal compliance and law enforcement combined. Not only are whistleblowers on your side, they are the single best resource you have to root out wrongdoing. It undermines agencies’ self-interest to view these workers as threats. Overwhelmingly, they intend the opposite.
- Retaliation conflicts are counterproductive for agencies: No one should kill the messenger. Often whistleblowers are providing warnings, not attacking. Like the bitter pill that prevents a hospital trip, their observations can prevent disasters. Federal Air Marshal Robert MacLean’s public whistleblowing prevented a TSA “mistake” that would have abandoned all coverage during a confirmed, more ambitious rerun of 9/11. Unfortunately, his warning led to termination — hardly an incentive for other government workers to risk professional suicide to prevent what could be disastrous government mistakes. Or look at the Space Shuttle Challenger explosion, proving that it can be disastrous not to listen. At a minimum, whistleblowers’ messages can prevent organizational leaders from being blind-sided about problems they may not learn of until being held publicly responsible for the consequences.Further, it’s a lot more work to retaliate than it used to be and it’s not going to change. Whistleblowers’ legal rights have a remarkable congressional mandate – four unanimous approvals since 1978 for rights with increasingly wide scopes and steadily stronger due process teeth. At a minimum, employees who want to defend themselves can force agencies into years of distracting, draining depositions and document releases that also may expose far more than the whistleblower’s original disclosure. And now that the Whistleblower Protection Enhancement Act has passed, employees have a fighting chance to actually win their cases.
- Retaliation conflicts are counterproductive for whistleblowers: GAP has worked with over 6,000 whistleblowers since 1977. We routinely advise them that even if they formally prevail, they likely will lose by incurring more scars in the process than from the original reprisal. Litigation war is hell, and even with strong rights it is a long shot to prevail formally.
- Intimidation backfires for everyone: Intimidation clogs the free flow of information for effective government action. The most severe consequence of a chilling effect is when decision makers must fly blind because vital information was suppressed. The 9/11 Commission identified that as a primary cause for the tragedy. Managers must reject a culture of ignorance.
The solution for proper whistleblower treatment is not complicated: Train! Train! Train!
A legal revolution has occurred in recent years, but only a token percentage of agency managers, or even employees, have learned the boundaries of new rights and responsibilities. How many readers know that Controlled Unclassified Information status does not cancel public whistleblowing rights? These types of knowledge gaps must be rectified. Adequate training must include developing a workplace culture of openness and acceptance of whistleblowers as problem solvers. At a minimum, all agencies should participate actively in the Office of Special Counsel program for certification of merit system compliance.
With whistleblower acceptance, lose-lose situations will be replaced by win-wins. Like in private industry, they should be agencies’ main channel for prevention, solution and damage control. Not conflict.
Tom Devine is legal director for the Government Accountability Project. GAP is a non-profit organization that advocates for the protection of whistleblowers.