Title 5 U.S.C. § 2302(a)(2)(D) defines a whistleblower as someone who engages in:
… a formal or informal communication or transmission, but does not include a communication concerning policy decisions that lawfully exercise discretionary authority unless the employee or applicant providing the disclosure reasonably believes that the disclosure evidences—
(i) any violation of any law, rule, or regulation; or
(ii) gross mismanagement, a gross waste of funds, an abuse of authority, or a substantial and specific danger to public health or safety
Now, that’s all very legalistic language so let’s break that down.
Essentially, for federal employees, there are three components:
- a communication (telling someone else),
- about conduct of another federal employee,
- which the communicator reasonably believes to constitute
- fraud, waste, abuse, or illegal conduct.
The key here is that, in order to be protected as a whistleblower, the conduct disclosed need not necessarily be illegal or constitute fraud, waste, or abuse. As long as you reasonably believed that the conduct disclosed was problematic, you are protected. In fact, one of the first burdens of proof an agency has to meet in combating a claim of whistleblower reprisal is by trying to establish that there was no way you, the whistleblower, could have reasonably believed the conduct was illegal or constituted fraud, waste, or abuse.
How often do they prevail on this? Rarely, if ever.
This definition of a whistleblower came from a change in 2012 when President Barack H. Obama signed into law the Whistleblower Protection Enhancement Act (“WPEA”). Its predecessor, the Whistleblower Protection Act of 1989 (“WPA”), signed into law by President George H.W. Bush, was not as clear in its definition. The WPA resulted in a lot of bizarre court decisions that robbed the law of its meaning.
- In Horton v. Dep't of Navy, 66 F.3d 279, 282 (Fed. Cir. 1995), the Court of Appeals for the Federal Circuit decided that a disclosure to the individual whose conduct was at issue was not the type of disclosure that would afford a federal employee protection under the WPA.
- In Willis v. Dep't of Agric., 141 F.3d 1139 (Fed. Cir. 1998), the U.S. Court of Appeals for the Federal Circuit ruled that a protected disclosure cannot arise from the ordinary conduct of an executive branch employees' position—i.e., someone who questions the lawfulness of the work they were employed to perform cannot be a protected whistleblower; and
- In Meuwissen v. Dep't of Interior, 234 F.3d 9 (Fed. Cir. 2000), the U.S. Court of Appeals for the Federal Circuit ruled disclosures of information which was publicly available was not a disclosure within the meaning of the WPA—i.e., if someone could have publicly access the information disclosed as the basis for claiming illegality, fraud, abuse, etc., but did not, there was no protection.
The WPEA cured these defects in the law by using words like any communication, regarding any violation of law, etc. And since then, the WPEA has been a powerful weapon for defending the rights of federal employees who have engaged in whistleblowing.
State and Local Employees
Title 5 of the U.S.C. applies to employees of the federal government. Article I of the U.S. Constitution forbids the Congress from imposing laws on the various states in the handling of their internal affairs. But fret-ye-not! Many, if not all, states have passed laws protecting state and county employees.
In Texas, where TOTTM is registered, whistleblower protections are conferred by Texas Government Code § 554.001, et seq., protected disclosures are limited to violations of law—statute, ordinance, or rule/regulation—and the disclosure must be to a law enforcement agency with authority to handle such reports, e.g. the State Attorney General’s Office or the department or agency’s inspector general.
In California, California Labor Code §1102.5, et seq., is similar to Texas’ law but applies to both public and private employees.
Findlaw has an excellent resource on state laws regarding protected disclosures for each state, its counties, municipalities, and whether whistleblower protections are extended to both public and private sector employees.
Whistleblower Reprisal Advocacy
If the laws exist and work, why provide advocacy?
The way our political system works is that laws—no matter their intent—are interpreted and enforced by the courts. Historically, as discussed above, the courts have shown hostility toward enforcement of whistleblower reprisal laws. The adequacy of our laws do not matter when they are not adequately enforced. Generally, whistleblower reprisal cases settle because public agencies—particularly federal agencies—do not want the embarrassment of a finding against them. But in settling, they often impose severe conditions on the whistleblower.
For instance, the whistleblower is likely to be required to agree to:
- non-disclosure of the terms of the settlement agreement;
- agree to resign from the agency or department;
- agree to never seek re-employment with the agency of department again;
- accept a couple years’ worth of income, which will be received in bulk and, therefore, taxed at a higher percentage than it normally would;
- provisions that permit the agency or department to evade normal regulatory or statutory limitations on what can be said for job references;
Then, there is the unrecognized problem that the reprisal does not stop. The IRS, for instance, can begin sending you notices of dunning for prior tax years without any reference to what the purportedly due taxes are for and move to garnish your wages. This is how the federal government, for instance, recoups its losses on the settlement. Then there is the issue of target individualism, a concept often dismissed by the courts, but has been personally witnessed by members of the board of TOTTM, reported across the internet, and always has similar elements.
What does advocacy involve?
Advocacy involves three things:
- public awareness through dissemination of literature, social media campaigns, website hits, etc;
- public mobilization through letter-writing campaigns, going and talking with your legislators, talking with friends and family, petition-signing campaigns, etc.;
- calculating results, reforming goals and methods; and, if necessary,
- publicizing the failure of publicly-elected officials to follow through.
Advocacy is the process of organizing people around a common issue or set of desired outcomes. It is involves the methodological planning of methods to bring about those desired outcomes. And as the old saying goes, "If once you fail, try, try again." Advocacy involves the use of soft and hard power. Soft power can be a petition or letter-writing campaign; hard power generally involves the use of economics to bring about change. The latter can often be achieved through partnerships and joint endeavors with other organizations, even if only tangentially related to each others missions.
An act as simple as getting your local newspaper to allow you to write a column on information obtained on whistleblower reprisal or statistics from the OSC that can be written compellingly, written in a way that provides meaning to it in the context of reform, and written in a market that would find it politically motivating or charged.
Legislative Reform for Whistleblowers
Limitations on Legislative Action by Nonprofits
Nonprofits, such as TOTTM, exist and receive tax exemption because they fulfill some common good not fulfilled by the government. That activity is partially subsidized (paid for) by the U.S. government through tax exemption. While that is a great benefit, it does not come without its strings. There are restrictions on nonprofits when it comes to supporting or opposing legislation, or "lobbying." For nonprofits that bring in less than $500,000 per year, the general rule is that not more than 20% of its tax exempt income can be spent on lobbying efforts. There are different methods of tabulating the amount for organizations that earn far greater amounts in revenue.
As a general rule, TOTTMwill always place a value on its financial expenditures and in-kind contributions to lobbying efforts that support its mission. So long as that amount does not exceed 20% of its total tax exempt revenue, there will be no penalties. Alternatively, donors can be asked which portion of their contributions, if any, they authorize to be used for lobbying efforts. That allows organizations to better budget for legislative advocacy, prepare cleaner records for the IRS at the end of the fiscal year, and provides the organization leniency to shift money around when large legislative campaigns are in the works and the 20% limitation must be exceeded. Expenditures beyond the 20% of tax-exempt revenue, however, may be subject to income tax.
However, the IRS defines lobbying as:
⪙[A]ttempting to influence legislation if it contacts, or urges the public to contact, members or employees of a legislative body for the purpose of proposing, supporting, or opposing legislation, or if the organization advocates the adoption or rejection of legislation.
IRS instructions continue:
Organizations may, however, involve themselves in issues of public policy without the activity being considered as lobbying. For example, organizations may conduct educational meetings, prepare and distribute educational materials, or otherwise consider public policy issues in an educational manner without jeopardizing their tax-exempt status.
That means that nonprofits can spend any amount of money they wish "lobbying" legislators, and their donors, through the dissemination of information. Consequently, cleverly furnished information can articulate pretty specific issues that out to be addressed through legislation without specifically stating so. Thus, there is a range of options for nonprofits, such as TOTTM, to undertake to advocate for whistleblowers legislatively both directly and indirectly.
What can be done?
Earlier, it was noted that whistleblowers are often required to sign non-disclosure agreements. Depending on the language, therefore, they can be barred from even alleging that whistleblower reprisal ever occurred. As of the date of this writing, bipartisan support has led to two versions of bills in both the U.S. Senate and House of Representatives pertaining to sexual harassment amongst congressional and senatorial staff. The bills would make it illegal to negotiate non-disclosure provisions into settlement agreements settlement agreements involving congressional staff and claims of sexual harassment. While the bills have not made much movement, there are lessons to be learned here.
First, nothing is a panacea. Whistleblowers who have been victimized want consideration (something of value in exchange for their suffering) and vindication, even if its in the form of a settlement agreement with a non-disclosure provision. For many, the mere fact that an agency settles is a vindicating element for many. If you were to take away the ability for agencies to negotiate non-disclosure provisions into settlement agreements, they may be less apt to settle.
Movements learn from the successes and failures of others. The LGBT right movement, which began shortly after the civil rights movement for African Americans, borrowed the more successful techniques that make the civil rights movement influential, i.e. resulted in legislation such as the Civil Rights Act and Voting Rights Act. The Black Lives Matter movement has since borrowed from the LGBT movement in its quest for same-sex marriage recognition, adoption rights, etc. You do not have to put the whistleblower and targeted individualism movement on the same plane as the Me Too movement to borrow from its successes. Assuming legislation passes regarding non-disclosure agreements, that would be a leverage point for reforming public service whistleblower settlement requirements such as the exclusion of non-disclosure provisions as a matter of law.
As to the former point, whether in an unintended consequence by causing a reluctance for agencies to settle, it could ultimately have a more favorable unintended consequence. For instance, when agencies, across the board, are suddenly not settling in agreements hidden from public inspection and the result is a significant increase in litigation, that would have a dramatic effect on public perceptions of the problem.
There are a number of things that can be done, setting aside the already mentioned:
- Requiring public agencies to report annually the names, ranks, titles, pay scales, etc., for managers and supervisors who cost the public more than $50,000 in tax revenue through litigation;
- Currently there is an extraordinarily minor civil penalty for whistleblower reprisal--up to $1,000--applied to the person responsible, but there is no reason that could not be enhanced to involve criminal penalties;
- Requiring that the responsible congressional oversight committee with jurisdiction over the specific whistleblower disclosure(s) decide and be required to rule on the veracity of whistleblower claims, by written, public letter, rather than the U.S. Special Counsel;
The opportunities are endless..., but the ideas are not. That is why TOTTM needs you to be engaged, communicate your ideas, provide your stories, and so forth, because only when we have a full puzzle can we put it together in a meaningful way.