Note: this article, featuring our Legal Director Tom Devine, was originally published here.
With Appeals Board Hamstrung, Congress Declines to Intervene on Behalf of Whistleblowers Facing Discipline
Inaction comes as MSPB lacks board members and many feds say impeachment proceedings have left them less likely to report wrongdoing.
ongress this week declined to intervene on behalf of whistleblowers who are facing disciplinary actions from their agencies, rejecting a provision House Democrats had sought to protect employees attempting to expose wrongdoing.
The provision, which was included in the House version of the 2020 National Defense Authorization Act, would have allowed employees to receive a 45-day stay on a personnel action before the Merit Systems Protection Board if one is requested by the Office of Special Counsel. MSPB cannot currently approve OSC’s requests because it does not have any confirmed members on its central board.
The House provision would have allowed MSPB’s general counsel—currently Tristan Leavitt, who is also serving as the agency’s executive director—to order a 45-day stay of any personnel action that he believed was a prohibited personnel action, including whistleblower reprisal. The Senate version of the bill did not include the provision, and the House conceded.
In 2017, after MSPB lost its governing quorum, Congress approved a fix that allowed the one remaining board member to approve stays on his own. Lawmakers have yet to take similar action since that member, Mark Robbins, left the agency when his term expired. MSPB has not had any presidentially appointed, Senate-confirmed members since February.
Without temporary stays, said Tom Devine, legal director for the Government Accountability Project, a whistleblower advocacy group, agencies lack an incentive to resolve cases quickly. Without being able to influence MSPB, he said, OSC is “toothless.”
“This is like the two in a one-two punch against whistleblowers by Senate leadership,” Devine said, noting the MSPB central board cannot issue final rulings on appeals without a quorum. “It’s an inexcusable, indefensible attack on whistleblower rights.”
The Senate Homeland Security and Governmental Affairs Committee has approved a slate of three individuals President Trump appointed to serve on the MSPB, but they have languished on the Senate floor for months. MSPB currently has a backlog of more than 2,000 cases, the largest in its history.
The precarious position for whistleblowers comes as Trump and his allies in Congress have launched repeated attacks on the intelligence official at the center of the impeachment proceedings. The whistleblower voiced concerns about Trump’s interactions with Ukraine through legal channels, but Trump has described the individual as treasonous and seeking to damage his presidency. Congressional Republicans have attempted to expose the whistleblower’s identity, arguing the individual has no right to anonymity.
In a survey released this week by the Government Business Council and Government Executive, one-in-three feds said they are now less likely to report wrongdoing to the appropriate authorities as a result of the rhetoric surrounding impeachment.
“Whistleblowers are at the mercy of partisan gridlock,” Devine said, adding lawmakers often “praise whistleblowers to their face but then stab them in the back.”