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Encouraging Retaliation

Bureaucrats often consider employee-witnesses the problem. "Killing the messenger" avoids correcting whatever problem or necessary reform the whistleblowing employee-witness was trying to bring to the organization's attention. Focusing on the personal consequences distracts from the organizational problem the Whistleblower Protection Act and other anti-retaliation legislation were designed to combat--the climate of fear that ultimately impedes basic government functions. Nonetheless, many personnel officers consider law enforcement and whistleblower protection outside their job descriptions. Ditto for private attorneys.

Personnel officers with a short-run or personal-career focus may well encourage retaliation, rather than compliance with anti-retaliation laws. Bully bosses may be grateful, but the approach creates many victims. Many personnel officers refuse or "forget" to advise whistleblowers of their federal rights and remedies, much less potential deadlines applicable in their cases. Agency general counsel officers might also misadvise employees attempting to represent themselves because of the same win-at-all-costs mentality. EEO counselors may be more likely to give correct advice about discrimination rights and remedies -- because the EEOC penalizes them if they don't. The MSPB almost creates compliance disincentives by contrast. Although a MSPB regulation requires notifying employees of appeal rights, AJs do not enforce it against agencies with any zeal. The MSPB only bothers mentioning it (and reversing an AJ dismissal) if the deceived employee missed a deadline by only a day or so. This of course rewards the worst abusers (or intentional non-notifiers). The U.S. Court of Appeals for the Federal Circuit attempted to discourage this shortsighted approach in Walls v. MSPB, 29 F.3d 1578, 1582 (Fed.Cir. 1994), but has not followed up. Few employees experiencing retaliation know about the case, nor is the MSPB in the habit of citing it.

Some private attorneys likewise fail to advise their clients fully of their rights. Their justification may be paternalistic--some may genuinely believe that departure and silence benefits their clients. Legal economics encourages this disempowering approach, however contrary to professional ethical rules it may be. Even in a straightforward missed deadline case, the MSPB never names nor otherwise punishes the attorneys or union representative who failed their client. In practice, many employment attorneys advocate settlements because the agencies are willing to pay their fees, or because the lawyer has dragged matters on until the client's money or patience has run out. See Working with an Attorney. Pro Se Representation. Washington D.C. attorney Roy Krieger has filed a class action lawsuit alleging that CIA treated employees who hired attorneys more harshly than those without attorneys. .

Unfortunately, mutual escalation is common. The federal bureaucracy does little to rein in supervisors who act out personal desires for revenge or feelings of betrayal. Whistleblowers can also well feel betrayed by the agency whose mandate or regulations they worked to protect (and which was their career path). Emotions can be as tumultuous as in divorces or deaths of loved ones.

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