Blowing the whistle can blow your career

A recent court decision reveals how little protection federal employees have if they "blow the whistle."

The case involved Russell Kell a former Veteran Services Officer at the Department of Veterans Affairs facility in Anchorage Alaska. In 1991 one of Kell's employees told him that he suspected that some vouchers submitted to the VA's education program by the State of Alaska were fraudulent. Then in February 1992 the same employee told Kell that he believed that Alaska state government personnel had engaged in unauthorized personal business during a trip to the University of Alaska at Nome.

In January 1993 Kell completed an analysis of the educational program and prepared a report of his work for his supervisor. The report included information on the employee's suspicions of fraud and a recommendation for an investigation by the Office of the Inspector General. After learning in May 1994 that his report had not been forwarded to the OIG Kell forwarded the report himself. He included a memorandum charging that his supervisor's failure to forward the report was a "gross abuse of authority." Needless to say Kell was criticizing his supervisor. But the IG investigation yield-ed no evidence of wrongdoing.

In October 1994 Kell's field examiner position was moved from the Veterans Benefits Administration to the Veterans Health Administration. Kell asked the VA's Office of Special Counsel to intervene based on his belief that his reassignment was a retaliatory action related to the criticism of his supervisor.

When the OSC failed to act on his behalf Kell took his complaint to the Merit Systems Protection Board. In February 1996 an MSPB administrative law judge issued an initial decision that Kell failed to establish that his actions could be considered "protected disclosures " which would be covered under the Whistleblower Protection Act (WPA).

The administrative law judge who analyzed Kell's disclosures of alleged wrongdoing concluded that Kell did not have a reasonable belief that his disclosure divulged a violation of law. After hearing testimony that the vouchers in question were later approved the administrative law judge concluded that Kell lacked a proper basis upon which to base a claim of fraud.In effect the administrative judge made this ruling based on hindsight. The administrative law judge also reviewed and rejected Kell's allegation that his supervisor's failure to forward his initial report constituted gross waste and abuse of authority.

Undeterred Kell filed a petition in March 1996 for review of his case by the full MSPB arguing that his disclosure was in fact protected under the law and that his reassignment was part of a pattern of retaliation. The board denied the petition for review and Kell took the MSPB to court. In his appeal Kell disputed the administrative law judge's finding that he lacked a basis for a reasonable suspicion of fraud.

Whether or not he had sufficient reason to suspect fraud should not make a difference in deciding whether Kell was entitled to WPA protection. Individuals may differ as to whether the facts in a particular case are indicative of fraudulent behavior but that should have no bearing on whether an individual who speaks out is entitled to protection under the WPA. The act provides that an individual in a position of authority shall not take threaten to take or fail to take a personnel action with respect to any employee because the employee made a "protected disclosure."

But in this case the court ruled that an allegation of fraud constitutes a protected disclosure only if the employee has a "reasonable belief" that fraud was occurring. In effect the court said that not all whistle-blowers have equal protection under the WPA.

Ultimately the court did not overturn the MSPB decision. It hung Kell out to dry. I'm sure this is not what Congress intended when it enacted whistle-blower protection.

-- Bureaucratus is a retired federal employee who contributes regularly to Federal Computer Week.

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