Government Whistleblowers: We Need Them. Why Don’t We Protect Them?

By Mary Foster and Wendy Muchman
Whistleblowers are less protected than ever

Whistleblowers are less protected than ever

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This year, numerous federal employees have blown the whistle about troubling instances of alleged government wrongdoing. A whistleblower came forward stating that President Trump had abused his power by soliciting interference from a foreign government in the 2020 election. A Department of Homeland Security employee whistleblower reported that he was told to stop reporting on Russian interference in the 2020 election. A whistleblower expressed concerns about the promotion of an untested drug, hydroxychloroquine, to treat coronavirus. A whistleblower from the Transportation Security Administration reported the agency’s failure to protect staff with proper personal protective equipment during the pandemic’s early stages.

Whistleblowers play an important role in exposing illegality, fraud and corruption, but without mechanisms in place to protect them, they are less likely to speak out. So how are they protected? The answer is that right now, more than ever, they are not.

MSPB Vacancies

Protections under the Whistleblower Protection Act of 1989 (WPA) and the Whistleblower Protection Enhancement Act of 2012 (WPEA) remain elusive for most whistleblowers. These acts aim to protect federal employees from retaliation for disclosing information that the employee reasonably believes evidences a legal violation, gross mismanagement, abuse of authority, or a substantial and specific danger to public health or safety. However, whistleblowers have not been able to adjudicate claims of whistleblower reprisals under the acts before the Merit Systems Protection Board (MSPB) because the MSPB has been inactive for the past three years.

This is due to the fact that since February 2019, all three positions on the MSPB have been vacant and the Senate has not confirmed any of the nominees chosen by the president. Publicly, it is unclear who or what is holding up the confirmations. The MSPB’s current backlog is approaching 2,900 cases and a quarter of those cases involve whistleblowers. Most federal employee whistleblowers do not currently have access to courts or jury trials for adjudication of their claims because they have to exhaust their administrative remedies at the MSPB.

Whistleblower Protection Improvement Act

U.S. Rep. Carolyn Maloney (D-NY) has introduced legislation, the Whistleblower Protection Improvement Act, which provides that if the MSPB has not issued a final order within 180 days of submission, a federal employee can file a complaint in U.S. district court and request a jury trial. The bill also seeks to protect a whistleblower’s ability to share information with Congress.

Conclusion

Without effective systems in place to protect whistleblowers from retaliation, whistleblowers are far more likely to remain silent. Whistleblowers are the “voices of the country’s conscience.” It is past time to fill the empty seats on the MSPB, and it is time for Congress to consider the proposed legislation to enhance protections for the brave men and women who risk so much to come forward to expose wrongdoing.

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    Mary Foster

    Adjunct Professor

    Mary Foster is an adjunct professor at Northwestern University Pritzker School of Law. Previously, she was a review board counsel for the Illinois Attorney Registration and Disciplinary Commission. 

    Wendy Muchman

    Harry B. Reese Teaching Professor of Practice

    Wendy Muchman is the Harry B. Reese Teaching Professor of Practice at Northwestern University Pritzker School of Law. She is the immediate past president of the National Organization of Bar Counsel and currently serves as the vice chair of the Division. 

    Lauri Bonacorsi

    Law Student

    The authors wish to express their thanks to Northwestern University third-year law student Lauri Bonacorsi for her research on this topic.