The new Merit Systems Protection Board (MSPB) was off to a flying start in the first year of Obama administration appointees. Thanks to Chair Susan Grundmann’s leadership, the Board made more progress toward protecting the merit system than in any other year since it was created by the Civil Service Reform Act of 1978. It established an unprecedented infrastructure of research, transparency, and public enfranchisement. It issued landmark precedents that restored its authority to enforce the merit system. It reversed a decade long trend of ruling against whistleblowers. In 2010 for merits decisions by the full Board, there were more whistleblower victories (four) than in the previous decade (three). That is four times the total of one Board whistleblower victory during the entire term of previous Chair Neil McPhie.
Unfortunately, for whistleblowers, the Administrative Judges (AJ’s) who conduct hearings and issue initial decisions do not seem to be listening yet. In November and December 2010, AJ’s ruled against whistleblowers in 31 of 33 decisions. For the year their record was 12-187, with whistleblowers on the short end. They continue routinely to rubberstamp agency reprisals through expansive readings of Federal Circuit loopholes that have gutted the Whistleblower Protection Act. Setting the pace for bias was AJ Elizabeth Bogle of the Washington Field Office, who ruled against the whistleblower defense in 23 decisions out of 23 cases. The Board is doing what it can through rulings. In 2010 it remanded, or sent back, 11 cases for a hearing that AJ’s had dismissed. But it is clear that until Congress overhauls the statute, the Board’s leadership will be insufficient to reverse deeply ingrained administrative law patterns hostile to whistleblowers.
I. Transparency. The Board promptly issued an Open Government Plan to implement administration policy; promptly implemented administration policy to release records under the Freedom of Information Act; informally and in public meetings sought the views of stakeholders for an ambitious research agenda, which already has produced an in-depth study on the need for statutory revisions to achieve legislative intent for the Whistleblower Protection Act; and conducted the first two public oral arguments in 27 years.
II. Strengthening employee merit system rights.
In two landmark decisions (following those oral arguments), the Board firmly reestablished its authority to enforce the merit system. In the Conyers and Aguzie cases, it eliminated back door authority to circumvent merit system rights through potentially all-encompassing loopholes. In Conyers it reversed a 2009 ruling that would have expanded a 1988 Supreme Court ruling on security clearances by abdicating Board authority over removal for common “noncritical sensitive” jobs. In Aguzie it established that the Office of Personnel Management cannot bypass MSPB appeal rights by ordering agencies to fire employees whom it has deemed are not “suitable” for federal employment.
In other precedents, the Board provided appeal rights against indefinite suspensions while an employee is under investigation; strengthened employee rights to seek mitigation of overly harsh
III. Whistleblowers. During Chair McPhie’s seven-year term, the Board’s track record was 1-45 against whistleblowers for decisions on the merits. During the previous decade, the Board had a corresponding 3-53 record. Since Chair Grundmann and Vice Chair Anne Wagner assumed office in December 2009, the record is 4-4. Eleven times out of 17 the Board also overturned initial dismissals and remanded cases back to Administrative Judges for further action. For whistleblowers, to date the Board’s leadership has been turning on the lights after the Dark Ages.
The most significant, visible ruling restored Park Police Chief Theresa Chambers to her position. Her termination for exposing public safety hazards from Park Police cutbacks had become a national symbol for the hopeless plight of whistleblowers. Board precedents also established that –
* It is protected whistleblowing to challenge harassment or threats, which can range from abuse of authority to violation of law as criminal assault.
* An agency policy against disclosure does not qualify as a “law” cancelling Whistleblower Protection Act rights for public freedom of expression.
* It is protected whistleblowing to disclose breaches of ethical standards for approval of a government contract, because that misconduct constitutes a “violation of law, rule or regulation.”
IV. Office of Special Counsel. If the OSC, the government agency that investigates federal whistleblower disclosures and protects against whistleblower reprisals, gets a new Special Counsel and stops being nearly dormant, the Board’s early decisions are a preview of support for OSC actions. In one case it supported OSC disciplinary action. Three times it ordered “stays” of alleged prohibited personnel practices in response to OSC petitions.
Tom Devine is the Legal Director of the Government Accountability Project, the nation’s leading whistleblower organization.