Protecting Whistle-Blowers

WASHINGTON (07/24/2000) - What happens if you blow the whistle on your agency?

Are you protected from retaliation?

This issue arose recently in a case involving an Interior Department em- ployee, Sandra Ganski, who blew the whistle on her agency's merit staffing process.

The Merit Systems Protection Board originally ruled against Ganski, saying that the Whistleblower Protection Act should be narrowly construed and only provide protection against retaliation for disclosures of wrongdoings that were "significant." Apparently, the MSPB didn't think being a victim of your agency's personnel shenanigans was "significant."

Later, the MSPB reversed its decision and confirmed that the WPA protects federal employees who disclose violations of merit promotion rules. The act should be broadly construed, the board said, to protect federal workers who disclose violations of any regulation, including those that govern the hiring and selection of federal employees.

What brought about MSPB's change of heart? Let's take a closer look at the case.

Ganski said she had suffered retaliation - including being passed over for a promotion and being suspended for 14 days - for disclosing to top- management that another employee was picked for a position in violation of the agency's merit promotion rules.

Ganski told her superiors that she felt the job wasn't advertised and posted as required by Interior's rules and that the hiring process had been manipulated.

She claimed that agency officials had created a phony temporary position, converted it noncompetitively to a permanent position and then qualified the employee for the permanent job based on the experience acquired while occupying the temporary - and illegal - position. Nice trick.

After the MSPB initially said that the WPA didn't protect Ganski's disclosure, she appealed the decision to the Court of Appeals for the Federal Circuit.

While her case was pending before that court, the U.S. Office of Special Counsel urged the MSPB to reconsider. OSC investigates federal employees' complaints of retaliation for whistle-blowing. At the same time, the Justice Department took the unusual step of siding with Ganski.

This prompted the MSPB to back off. The court granted an MSPB motion seeking a reconsideration of the case. That's when the board finally ruled that a disclosure of this kind is protected.

Special Counsel Elaine Kaplan said that "Ganski's disclosure involves precisely the sort of public interests that the WPA was designed to serve." Kaplan also praised OSC's involvement: "If OSC hadn't become actively involved, it's unlikely that the Justice Department would have supported reversal of the board and equally unlikely that the MSPB would have decided to re-examine its initial decision." I'll buy that.

It isn't clear what would have happened if OSC hadn't intervened. But what is clear is that the office acted in a positive way that helped a federal employee obtain justice.

--Zall is a retired federal employee who since 1987 has written the Bureaucratus column for Federal Computer Week.

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