GAP Launches Campaign Protecting Whistleblowers from Criminal Retaliation

A new GAP campaign seeks to prevent federal and corporate employees from being unjustly embroiled in criminal investigations and prosecutorial referrals as retaliation for blowing the whistle.

In response to whistleblowers disclosing information – either internally or to an arm of the government such as the Securities & Exchange Commission (SEC) – many employers are referring truth-tellers for criminal investigation and in some cases prosecution. This tactic has been used in the past, but with the rise of stronger whistleblower protections, the frequency of these heinous acts has exploded. Since whistleblowers can no longer be easily fired, corrupt supervisors are creatively circumventing the rules against workplace retaliation by involving the authorities under false pretenses. Essentially, whistleblowers are protected from firings but open to police charges.

Criminal investigations offer benefits to culpable parties that few guilty organizations can resist.

First, criminal investigations allow agencies on the defensive to circumvent Prohibited Personnel Practices (PPPs), mandatory procedures that forbid specific adverse actions against government employees. Second, the government holds a major advantage in criminal investigations, as it can afford to engage in relentless litigation. But for a whistleblower to hire counsel for an extended time is beyond regular financial means. These long-winded investigations are followed by additional scrutiny, causing whistleblowers financial and psychological distress. Having to appear in court, as well as answer pointed questions, can take a further toll on whistleblowers’ relationships. Third, criminal investigations create a “chilling effect” that discourages other employees from coming forward to publicize wrongdoing. Unfortunately, it is then often easier for employees to remain silent and protect their careers rather than disclose abuse.

Marine Corps veteran and GAP client Franz Gayl vowed not to take this route. During the height of the wars in Afghanistan and Iraq, Gayl, who then worked as a civilian science advisor to a Marine Corps planning commission, grew concerned over the lack of safety in military equipment used by American combat troops. He advocated for the purchase of mine resistant ambush protected vehicles (MRAPs), which would better protect troops from improvised explosive devices (IEDs) and other unconventional weapons. Gayl became frustrated after internal attempts to publicize the issue were rejected, including a meeting with top officials from the Department of Defense (DoD). As it turns out, some Marine Corps officials in positions of power staked their careers on the continuation of these pet-projects, even as causalities from IEDs mounted.

After contacting congressional offices and media outlets about his concerns, Gayl suffered several rounds of retaliation including unrealistic deadlines, diminished responsibilities and forced administrative leave. He was referred to a Naval Criminal Investigative Service (NCIS) criminal investigation based on a false premise that was later disproven. Yet, instead of acting as a context in which Gayl could verify his concerns about MRAPs, the NCIS investigation functioned as an extended retaliatory campaign.

During the various stages of retaliation, there was no question in the public sphere that Gayl’s actions saved lives. In June 2011, shortly before leaving his position, then-Secretary of Defense Robert Gates stated that MRAP deployment saved “thousands of lives” in an interview with USA Today. Today, these vehicles are in wide use by troops. Gayl’s courage did not deserve the retaliatory treatment he received.

Yesterday, July 30, National Whistleblower Appreciation Day, GAP hosted a panel, From Firings To Criminal Referrals: The Changing Face of Whistleblower Protection, that informed the public about the many risks whistleblowers face with criminal investigations. As rights have strengthened, guilty institutions are increasingly using criminal retaliation tactics. Criminal investigations are more likely to occur when senior officials are involved, a significant financial risk is at stake, or when disputes involve institutions with an anti-whistleblower history, among many others.

The goal for GAP and other whistleblower advocacy organizations is to prevent whistleblowing disputes from blossoming into criminal investigations and prosecutorial referrals. Whistleblowers should not have to experience years of uncertainty in order for their professional lives to be restored. Strong and flexible legal whistleblower protections should make it unattractive for guilty institutions to resort to criminal investigations. Guilty institutions, even with an array of weapons at their disposal, would not go to such ends if whistleblowers were adequately protected in the courtroom. During such investigations, bodies such as Offices of the Inspectors General must play an impartial role in whistleblower disputes. Reducing the proclivity of institutions to rely on investigations largely depends on keeping the official who referred the case to the external body accountable. That official must have a valid reason for forwarding the case for investigation – not a pretext for whistleblower retaliation. Only with education and increased awareness can we begin to curb the use of criminal retaliation tactics, which severely worsen the plight of the truth-teller.