Whistle-blowers: Beware of ruling in recent case

A court decision last November strikes a serious blow at the protection afforded federal employees by the Whistleblower Protection Act (WPA).

The case involved Mel Gores director of the Department of Veterans Affairs' Medical Center in Bath N.Y. Gores supervised David Goblet the chief personnel officer at the Bath facility.

Gores rated Goblet's job performance as "minimally successful " following a "fully successful" rating the previous year. He transferred Goblet to a detail in the library because of an alleged blackmail attempt by Goblet. Goblet cried "foul" and appealed to VA authorities that he was the victim of retaliation for whistle-blowing.

The WPA prohibits an official from taking or failing to take a personnel action because of any disclosure of information by an employee that the employee reasonably believes proves a violation of any law rule or regulation gross mismanagement a gr oss waste of funds an abuse of authority or a substantial and specific danger to public health or safety.

Goblet had sent an anonymous letter to his congressman asserting that certain improper practices had occurred in the personnel office in the past. He contended that Gores somehow got wind of the letter. The VA investigated the accusations and substantiated several of the violations referenced in Goblet's letter.

The VA determined that Gores' actions were in retaliation for the disclosures that Goblet had made and it suspended Gores for 30 days. Gores appealed the VA's determination to the Merit Systems Protection Board. In the initial decision the MSPB administrative law judge reversed the VA's suspension. The full board however granted the VA's petition for review of the initial decision and affirmed the decision to suspend Gores but reduced the punishment to a 15-day suspension. Gores took the case to the U.S. Court of Appeals which said the government must prove two things to establish a violation of the WPA: (1) that the acting official had authority to take recommend or approve a personnel action and (2) that the aggrieved employee made a disclosure that was protected under the WPA.

As to the second requirement the court said the whistle-blower must reasonably believe that his disclosure reveals legal violations gross mismanagement or substantial and specific danger to public health or safety. This is a new twist. The court was saying that it does not matter what the whistle-blower does it is what he believes that counts.

According to Gores there was no evidence that Goblet reasonably believed his disclosures were protected by the WPA. Gores argued that the VA's failure to produce Goblet for deposition precludes any determination of his reasonable belief. Moreover Gores contended that "the trivial nature of the violations involved and Goblet's authority to remedy these problems without disclosure to his congressman" undermine the reasonableness of such a "belief."

The V A argued that the reasonableness of Goblet's belief could not be challenged because many of the disclosures made by Goblet were sustained after investigation.

The court sided with Gores. It ruled that the VA had failed to demonstrate what Goblet believed. Because of his position within the VA the court ruled that Goblet was in a position to remedy the alleged problems in his disclosures. Goblet did not need to disclose the problems because he could have corrected the problems internally.

The court did not buy the VA's argument that substantiation of some of Goblet's allegations proved that his disclosures were protected under the WPA. Although the court said substantiation that a rule has been broken "is strong evidence of a protected disclosure " it rejected the idea that it proves the whistle-blower's belief. Instead the court ruled that "substantial evidence does not support the conclusion that Goblet reasonably believed that he was disclosing violations of law under the WPA notwithstanding the subsequent substantiation of these allegations."

I find the decision troubling. In my opinion the WPA has nothing to do with what a person believes. How are you ever going to figure out what is in someone's head? Besides why should you have to? Suppose you blow the whistle on your boss for taking bribes and he retaliates. Why should your right to protection under the WPA depend on what you believe?

This decision is a travesty of justice. If it is not challenged all whistle-blowers had better be careful in the future. Visit a shrink before you blow the whistle to ensure you have documentation of your state of mind at the time.

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

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