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Compliance Systems

Ironically, some agencies that try to ensure that the private sector heeds laws, standards and regulations fail to keep their own houses clean insofar as whistleblower protection is concerned. Agencies may have EEO compliance officers, but no one to protect non-EEO whistleblowers working within the federal personnel laws. Plus, some Inspectors General, who are supposed to ensure laws and regulations are carried out and to make suggestions to improve management, consider retaliation just part of the normal course of events. Some even claim that combating illegal retaliation is only the OSC's job.

The new NoFEAR statute now provides that if the manager is found culpable, the agency must pay out of its own budget, but the MSPB almost never finds violations. In FY2000, the MSPB found only 2 instances of prohibited personnel practices in over 440 cases brought to its attention. Earlier, the MSPB decided that when the OSC unsuccessfully prosecutes a manager for unsavory personnel practices, the OSC must reimburse the manager's litigation costs out of its budget, not the budget of the agency which allowed (if not encouraged) the questionable personnel practices in the first place. Since OSC only prosecutes a handful of cases a year, this discourages it from vigorously protecting whistleblowers.

Does the MSPB have a "don't ask/don't tell" philosophy of its own? OSHA and the EEO require postings to inform employees of their rights, which increases compliance. The MSPB does not require this. Though the MSPB officially requires such notifications, see 5 C.F.R. 1201.21, it almost never imposes any consequences on agencies which choose not to notify employees of their rights, nor announce that retaliation is illegal. At best, if the employee files a few days late, some wiggle room might be granted before dismissing the employee's case on other grounds. Therefore, few bureaucrats bother complying with the notification requirement. After all, if no appeals get filed, the agency looks efficient in statistics submitted to the OMB, OPM or congressional oversight committees.

On November 7, 2002, OSC announced a new certification program concerning whistleblower protection. The statutory subsection had been around since 1994, but who's counting? Certification involves notifying employees of their rights, and telling managers about their responsibility not to commit prohibited personnel practices. The MSPB joined after after it settled a whistleblower case involving an MSPB employee, and now 19 mostly small agencies and departments have also joined. One hopes this "good housekeeping" seal will work better than the last attempt.

Morale losses and inefficiencies caused by lack of faith in the System are simply not as easily quantifiable and so often ignored. The 19th century historian Lord Acton noted that power can corrupt, and absolute power corrupted absolutely. If the MSPB and Federal Circuit choose to give personnel officers and bully bosses free reign, corruption, illegal activity, abuse of authority and/or gross mismanagement are inevitable.