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.