(Washington, D.C.) — The Government Accountability Project (GAP) today released two documents on significant developments in the pending whistleblower appeal of former Federal Air Marshal Robert MacLean. Two congressional offices, those of House Oversight and Government Reform senior members Dennis Kucinich (D.-Ohio) and Carolyn Maloney (D.-NY), filed an amicus curiae, or friend of the court, brief with the U.S. Merit Systems Protection Board (MSPB), where MacLean’s appeal is pending.

Additionally, MacLean submitted evidence that the agency’s only witness against him has been demoted two grades for alleged sexual misconduct. This demotion took place after a recently-completed Transportation Security Administration (TSA) internal investigation of the official, on charges that he was shielded from disciplinary action in exchange for purging TSA whistleblowers and leaders of the Federal Law Enforcement Officers Association (FLEOA).

In 2006, the TSA fired MacLean for publicly protesting TSA plans in 2003 to abandon Air Marshal coverage during a confirmed terrorist plan for an oversees airlines hijacking. His warning about the order to cancel coverage, made entirely with an unclassified text message order with no restrictive markings, led to congressional outrage that forced the TSA to restore air security protection for the public. The planned hijacking was thwarted.

Three years later, however, the TSA retroactively marked the text message as “Sensitive Security Information,” and fired MacLean for breaching security by using the then-unmarked directive to warn Congress before the plan went into effect.

In June 2009, President Bush’s appointed MSPB Chairman, Neil McPhie, issued a precedent that MacLean had no rights under the Whistleblower Protection Act (WPA), because agency secrecy rules trump statutory free speech rights. In May 2010, Administrative Judge Franklin Kang upheld the termination in an initial ruling. Judge Kang ruled that MacLean acted in good faith to protect national security, that he succeeded, and that there were no disadvantages to the agency beyond embarrassment and the cost of correcting its mistake. Nevertheless, he held that MacLean’s termination upheld the efficiency of the service, because he challenged agency management and forced it to change plans.

GAP Legal Director Tom Devine thanked the congressional offices for intervening, stating “Representatives Kucinich and Maloney are right on the money. Until the Board acts, the Whistleblower Protection Act can be canceled at will by agency secrecy regulations.”

Devine is especially appreciative of the two Representative’s contention that the Code of Ethics for Government Service should set the standards for efficiency of the service, not whether an agency is embarrassed or absolute bureaucratic power is challenged. Devine explained, “The Code of Ethics requires federal workers to put loyalty to the public over loyalty to the agency. It is on the wall of every government agency. But unless the Board restores its relevance by reversing the June 2009 ruling, the Code is not worth the paper it is written on, and following its principles is an act of professional suicide.”

Contact: Tom Devine, GAP Legal Director
Phone: 202.457.0034, ext. 124
Email: [email protected]

Contact: Shanna Devine, GAP Legislative Campaign Coordinator
Phone: 202.457.0034 ext. 132
Email: [email protected]

Contact: Dylan Blaylock, Communications Director
Phone: 202.457.0034, ext. 137, cell 202.236.3733
Email: [email protected]

The Government Accountability Project is the nation’s leading whistleblower protection organization. Through litigating whistleblower cases, publicizing concerns and developing legal reforms, GAP’s mission is to protect the public interest by promoting government and corporate accountability. Founded in 1977, GAP is a non-profit, non-partisan advocacy organization based in Washington, D.C.

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