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Wednesday, 06 December 2017 06:25

Trump Inaction Leaves Whistleblowers Trapped in a Swamp

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whistleblowerphotoFederal whistleblowers are trapped in a Trump swamp. (Photo: Michael Fleshman)


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According to a December 5 Public Employees for Environmental Responsibility (PEER) news release, whistleblowers who are punished or fired from federal agencies are now unable to fully appeal their personnel cases because of Trump administration inaction. In specific, Trump has failed to appoint nominees to the three-member U.S. Merit Systems Protection Board (MSPB). There are currently two vacancies, and the third member will be leaving in March.

The US Merit Systems Protection Board is the highest decision-making body regarding federal personnel actions within the government. Its decisions can be appealed to the court system. However, absent a functioning board it cannot render decisions in cases regarding retaliatory action against whistleblowers, for instance. Thus, whistleblowers who have been punished by a federal agency have no recourse at the MSPB board level regarding the government personnel system.

According to PEER,

This situation effectively nullifies the Whistleblower Protection Act, which is enforced by the MSPB. For example, at an agency such as the Department of Veterans Affairs, which is notorious for its reprisals against employees reporting wrongdoing and dangerous conditions, a whistleblower facing firing may have little recourse. If the whistleblower wins a favorable initial decision from an MSPB administrative judge, the agency could void the effects of that victory merely by filing an appeal to the full MSPB where it would join the growing, seemingly interminable backlog – and during all of this the whistleblower would be off payroll.

“By its inaction, the Trump White House has not just removed the merit system cop from the beat, it has shuttered the entire police station,” stated PEER Senior Counsel Paula Dinerstein.

Whistleblowers are essential to holding government accountable. Melvin A. Goodman, who wrote a book Whistleblower at the CIA based on his personnel experience, told Truthout in an interview earlier this year,

James Madison said that a "popular government, without popular information, or the means of acquiring it, is but a prologue to a farce or a tragedy; or, perhaps both." There is no possibility of having serious investigative journalism without whistleblowers. Just as Mark Felt was vital to the story of Watergate and Daniel Ellsberg was vital to understanding the Vietnam War, only whistleblowers have been able to reveal the illegal and unconstitutional massive surveillance of the National Security Agency, and the war crimes and torture and abuse committed in Iraq....

Whistleblowers are particularly vital at the current juncture in American politics because of the authoritarian nature of the Trump administration and the failing guardrails of the American democracy.

It is important to also remember that most whistleblowers do not become national news stories, as Chelsea Manning or Edward Snowden did. Rather, they are individuals who disclose wrongdoing in the bowels of government bureaucracy or the military. Most whistleblowers are unheralded people who take personal risks to hold government accountable. As PEER notes above, whistleblowers in agencies such as the Department of Veterans Affairs are also affected. Within the Department of Veterans Affairs, this affects staff members and administrators who speak out because of neglectful or injurious patient care at medical centers and outpatient facilities that treat veterans.

The Trump administration, in its failure to fill the MSPB board seats, is not enforcing one of the major alternatives for workplace protection remedies regarding adverse personnel action because of whistleblowing. Federal whistleblowing is protected by law. As the Securities and Exchange Commission explains on its website:

A federal agency violates the Whistleblower Protection Act if it takes or fails to take (or threatens to take or fail to take) a personnel action with respect to any employee or applicant because of any disclosure of information by the employee or applicant that he or she reasonably believes evidences a violation of a law, rule or regulation; gross mismanagement; gross waste of funds; an abuse of authority; or a substantial and specific danger to public health or safety.

Within the government, whistleblowers have few other options beyond the MSPB. For example, aggrieved parties can appeal to the Office of Special Counsel Complaints Examining Unit -- but cases not voluntarily resolved there then move to the MSPB. "In terms of enforcing the Whistleblower Protection Act, there is little that can be done if you don't have MSPB," PEER Senior Counsel Dinerstein emphasized in a conversation with Truthout.

The current de facto deactivation of the Merit Systems Protection Board leaves whistleblowers trapped in a swamp.