Whistleblower Protection ActWhistleblower Protection Act

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Helps to Promote a More Efficient and Helps to Promote a More Efficient and Effective GovernmentEffective Government

This law encourages employees to disclose information they reasonably believe evidences wrongdoing so that,

•The wrongdoing can be addressed and prevented in the future;•management can make programs more efficient and effective; and•Employees are protected and do not suffer retaliation for coming forward.

Helps to protect taxpayer dollars from being wasted.

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Whistleblower ProtectionsWhistleblower Protections5 U.S.C. § 2302 (b)(8)5 U.S.C. § 2302 (b)(8)

A protected whistleblower is an employee who discloses information which the employee reasonably believes evidences:•a violation of any law, rule, or regulation,•gross mismanagement,•a gross waste of funds,•an abuse of authority, or•a substantial and specific danger to public health or safety.

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Protection Against RetaliationProtection Against Retaliation

5 U.S.C. § 2302(b)(8) prohibits a federal employee from taking or failing to take , or threatening to take or fail to take, a personnel action because of a protected disclosure.

An employee must show, by preponderance of the evidence, that; They made a protected disclosure; and The disclosure was a contributing factor in the personnel action.

Did the person who took the action know about the disclosure? Timing of the personnel action.

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Protection Against Retaliation (Cont.)Protection Against Retaliation (Cont.)

Agency has to show by clear and convincing evidence that it would have taken the same action in the absence of the protected disclosure. Strength of the agency’s evidence in support of its action; Existence and strength of any motive to retaliate by agency

officials who were involved in the decision; Evidence that agency takes similar action against employees

who were not whistleblowers but otherwise are similarly situated.

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Personnel ActionsPersonnel Actions

Personnel actions include:•An appointment;•A promotion;•A detail, transfer, or reassignment;•A reinstatement;•A reemployment;•A decision concerning pay, benefits, or awards;•Any other significant change in duties, responsibilities, or working conditions.

These are just a few examples.6

WPA Standards: WPA Standards: Reasonable Belief of WrongdoingReasonable Belief of Wrongdoing

Reasonable belief of wrongdoing:

•The employee does not have to be correct; the employee’s belief is measured by what is reasonable.•Something the whistleblower knows is untrue is not protected.•An unreasonable belief is also not protected.

•Basically: Would a reasonable person not involved in the situation, knowing the same information/facts believe that a wrongdoing occurred.

Reasonable person standardReasonable person standard.7

WPA Standards: WPA Standards: Abuse of Authority and Abuse of Authority and

Violation of Laws, Rules, or RegulationsViolation of Laws, Rules, or Regulations• Abuse of authority

• “An arbitrary or capricious exercise of power by a federal official or employee that adversely affects the rights of any person or that results in personal gain or advantage to himself or to preferred other persons.”• Harassment or intimidation of other employees;• Assigning a grievance to a management official named as a subject in the grievance;• Providing preferential treatment to an employee with whom the supervisor was perceived as

having an intimate relationship.

• A violation of any Law, Rule, or Regulation:• Not something that a reasonable person would consider “arguably minor and

inadvertent mistakes in the conscientious conduct of assigned duties.”8

WPA Standards: WPA Standards: Gross Mismanagement or Gross Mismanagement or

Gross Waste of FundsGross Waste of Funds• Gross Mismanagement or Gross Waste of funds:

• Not merely a difference in opinion on how a program should be run;• Affects Department's ability to accomplish its mission;• Creates a substantial risk of significant adverse impact on Department’s ability to

accomplish its mission.• Example: Expending thousands of dollars for a database system that basically

provides the same information as an existing system.• Example: A management decision not to investigate large scale thefts at a

commissary and not to redeem $90,000 worth of coupons was held to be gross mismanagement.

Note: Examples cited in this presentation are taken from the MSPB report entitled “Whistleblower Protections for Federal Employees,” September 2010. For a copy of this report see http://www.mspb.gov/netsearch/viewdocs.aspx?docnumber=557972&version=559604&application=ACROBAT 9

WPA Standards: WPA Standards: Danger to Public Health or SafetyDanger to Public Health or Safety

• Substantial and specific danger to public health or safety• Likelihood of harm resulting from the danger;

• Not whether the danger could only result in harm under speculative or improbable conditions.

• Key: Not mere speculation that it is possible for some danger at some point in the future.• Example: Employee disclosed that agency lacked ammunition and instructed the security

staff to carry weapons not fully loaded.• Allegation was that lives would be at risk if the agency were attacked.• The danger was too speculative and was not imminent.

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Whistleblower Protection Enhancement Act Whistleblower Protection Enhancement Act (WPEA): What It Is(WPEA): What It Is

On November 27, 2012, President Obama signed the WPEA into law to strengthen protections for Federal employees who report fraud, waste and abuse.  The WPEA: Clarifies the scope of protected disclosures; the disclosure does not lose protection because:

It was made to someone, including a supervisor, who participated in the wrongdoing; It reveals information that was previously disclosed; of the employee’s motive for disclosure; It was made while the employee was off duty; It was not in writing; It was made during the employee’s normal course of duty, if the employee can show that the

personnel action was taken in reprisal for the disclosure; of the amount of time since the occurrence of the events described in the disclosure.

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Whistleblower Protection Enhancement Act: Whistleblower Protection Enhancement Act: What It DoesWhat It Does

Protects disclosures that an employee reasonably believes are evidence of censorship related to research, analysis, or technical information that causes, or will cause, a gross waste or gross mismanagement, an abuse of authority, a substantial and specific danger to public health or safety, or any violation of law;

Expands the penalties imposed for violating whistleblower protections;

Restores OSC’s ability to seek disciplinary action against managers who engage in unlawful retaliation. MSPB can impose reprimand, suspension, reduction in grade, removal, debarment from federal employment

for up to 5 years, or a civil penalty of up to $1,000.

Establishes a Whistleblower Protection Ombudsman for a five-year period. Educate employees about prohibitions on retaliation for protected disclosures, and Educate employees who have made or are thinking about making a protected disclosure about their rights and

remedies . Not an advocate, legal representative or agent for the whistleblower.

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Nondisclosure Agreements (NDA)Nondisclosure Agreements (NDA)

• § 115 of WPEA makes it a prohibited personnel practice to implement or enforce any NDA policy, form or agreement that does not include the following statement.• “These provisions are consistent with and do not supersede, conflict with, or otherwise

alter the employee obligations, rights, or liabilities created by existing statute or Executive order relating to (1) classified information, (2) communications to Congress, (3) the reporting to an Inspector General of a violation of any law, rule, or regulation, or mismanagement, a gross waste of funds, and abuse of authority, or a substantial and specific danger to public health or safety, or (4)any other whistleblower protection. The definitions, requirements, obligations, rights, sanctions, and liabilities created by controlling Executive orders and statutory provisions are incorporated into this agreement and are controlling.”

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Reporting Suspected RetaliationReporting Suspected Retaliation

If you believe you have been subject to retaliation for protected whistleblowing contact the Office of Special Counsel (OSC):

1730 M Street, N.W., Suite 218Washington, DC 20036-4505(202)254-3600(800)872-9855(800)877-8339 (Federal Relay Service)Visit the OSC Web page at http://www.osc.gov

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QuestionsQuestions

Keith M. MaddoxWhistleblower Protection Ombudsman

U.S. Department of EducationOffice of Inspector General

(202) 748-4339keith.maddox@ed.gov

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