Whistleblower Protections: A Nonpartisan Necessity

This article was written by our Senior International Fellow Alain Norman and was originally published here.

Whistleblowing—and the need to protect those who report misconduct—is as old as the republic itself. In 1777 the Continental Congress passed the first whistleblower protection act. Even today, members of the Foreign Service and other readers of this journal can benefit from “know your rights” information.

As the Government Accountability Project concisely defines it: “Whistleblowers are those who witness wrongdoing in the workplace and decide to speak up to expose serious violations of public trust.” A seminal example of this was when, during our Revolutionary War, American naval officers reported to the Continental Congress that their superior officer was abusing British prisoners—and Congress acted to protect the men who reported the misconduct.

Further, private citizens have been empowered since the 1863 False Claims Act to bring lawsuits on behalf of the federal government when they believe individuals or companies are defrauding Uncle Sam.

Today, the key law for most federal employees is the Whistleblower Protection Act of 1989, as amended in 2012 by the Whistleblower Protection Enhancement Act. Readers of the FSJ should also see the Foreign Service Act of 1980, Section 105(b)(2)(A).

Protected acts by employees include not only denouncing gross waste or mismanagement, but also filing a grievance or refusing to carry out an order that would require breaking a law or regulation. As regards disclosures that involve classified information, employees should be particularly careful to use lawful channels, such as their agency’s Office of the Inspector General.

How Protections Work

Three general observations about how whistleblower protections work are worth briefly sketching here:

First, whistleblowers are typically required to exhaust “administrative” options or processes before they can go to court. The State Department’s OIG provides this guidance: “Federal employees may make a protected disclosure to the Office of Special Counsel, OIG, or another employee designated by the [agency].” Given that federal employees do not have access to courts except for limited review of administrative decisions, Civil Service employees often must first bring their concerns to the U.S. Merit Systems Protection Board, while Foreign Service employees can avail themselves of the grievance procedures set forth in 3 FAM 4400.

Second, the complaining individual should not worry about having absolute certainty before raising a concern: They need only have a “reasonable belief” that there has been serious wrongdoing—even if it later emerges that the employee was mistaken.

Third, if somebody alleges they are a victim of retaliation—which might include being given a poor performance evaluation, being overlooked for promotion or being harassed in some fashion—for having reported others’ misconduct, such a person simply has the burden of establishing a prima facie case of retaliation to have the burden shifted to the employer to prove the absence of retaliation or retaliatory motive.

In short, although U.S. whistleblower law is complex, it delineates a path for people to follow when they believe that waste, fraud or abuse has happened, and the law seeks to help those who might suffer retaliation for doing their duty by reporting misconduct.

Yet people may wonder whether their agency’s OIG (or similar office) can handle their cases discreetly. Certainly, it is natural for anyone who wants to blow the whistle to worry about whether their career will be stymied or ended, even if their allegations prove to be correct.

Where Can You Turn?

Given that it may take time and determination to see a whistleblower disclosure to a successful conclusion—and given that, in the meantime, one risks retaliation and/or career damage—the decision to blow the whistle is a very important and sensitive one. Equally, all of us who work (or have worked) in the U.S. government know that our principal duty is to serve the American people by preserving and protecting the Constitution. Our natural inclination is, therefore, to want to fight the good fight, including reporting, and pursuing accountability for, misconduct.

To navigate the decision-making process, Foreign Service employees (and other U.S. government employees) can turn to several resources:

American Foreign Service Association. AFSA offers a strong labor-management team that is available for consultation and assistance, as well as a series of guides offering basic information on a wide variety of subjects that are often matters of concern.

Office of the Inspector General. At the Department of State & USAGM, contact the inspector general at WPEAOmbuds@stateoig.gov.

At USAID, contact the inspector general at oigombud@usaid.gov.

At the Foreign Commercial Service, contact the inspector general at wpo@oig.doc.gov.

At the Foreign Agricultural Service & APHIS, contact the inspector general at OIGWPC@oig.usda.gov.

Public Interest Organizations. GAP’s publication, Truth-Telling in Government—Guide to Whistleblowing for Federal Employees, Contractors, and Grantees, contains a list of several other public-interest organizations that may be able to offer guidance (see bit.ly/GAP-truth-telling).

GAP, unlike most such organizations, can offer legal representation to whistleblowers—such that attorney-client privileges attach—in proceedings, once potential whistleblowers complete an intake process.

AFSA Teams Up with GAP

In the Journal’s May 2020 issue, AFSA President Eric Rubin underscored the role of AFSA as a “bulwark” for defending members of the Foreign Service across six agencies, in particular against being silenced or becoming “political pawns.” So when the opportunity arose, AFSA and GAP teamed up to offer AFSA members a webinar, and now this short primer, on whistleblowing protection processes.

AFSA recognizes that no matter the administration, misconduct that may prompt whistleblowing is a never-ending challenge. At the same time, although whistleblowing will always require courage and perseverance, resources are available to help you navigate the moral, professional and legal issues that arise.

For more information, see the webinar organized by AFSA and the Government Accountability Project in March, available at bit.ly/AFSA-GAP-webinar.