@StateDept’s Retaliatory Security Clearance Revocation Now Punishable By [INSERT Three Guesses]

 

In July, we blogged about a short item in the latest State/OIG Semi-Annual Report to Congress that indicates it substantiated an allegation of a security clearance revocation in retaliation for an employee’s whistleblowing activity under PPD-19. State/OIG recommended that the whistleblower’s security clearance be reinstated. See State/OIG Finds @StateDept Revoked Security Clearance in Retaliation For Whistleblowing

On July 20, 2018, an unclassified memo jointly signed by Deputy Secretary John Sullivan and State/OIG Steve Linick was released by the Deputy Secretary’s office (with a Whistleblower Info flyer). The memo says in part:

Whistleblowers perform a critically important service to the Department of State and to the public when they disclose fraud, waste, and abuse. The Department is committed to protecting all personnel against reprisal for whistleblowing.

The attached memorandum describes how to make a whistleblowing disclosure and the legal protections that exist for whistleblowers, including Foreign and Civil Service employees and employees of Department contractors and grantees. The memorandum also describes how to file a complaint if you believe you have been subject to improper retaliation.

The memo also identifies the Whistleblower Ombudsman for the State Department as  Jeff McDermott:

The Whistleblower Protection Enhancement Act of 2012 requires Inspectors General to designate a Whistleblower Protection Ombudsman. Jeff McDermott has been designated as the Whistleblower Ombudsman for the Department. He is available to discuss the protections against retaliation and how to make a protected disclosure, but he cannot act as your legal representative or advocate. You may contact him atWPEAOmbuds@stateoig.gov.

The memo concludes with a reminder that State Department employees “have a right” to communicate directly with the OIG, and provides contact details:

Remember that Department employees always have a right to communicate directly with OIG. The OIG hotline number is 800-409-9926, and the hotline website is https://oig.state.gov/hotline. OIG’s main website is https://oig.state.gov/.

We suspect that this memo may have been prompted by the IG report to the Congress that an employee had his/her security clearance revoked in retaliation for whistleblowing.

So we wrote to the Whistleblower Ombudsman Jeff McDermott with our congratulations, and, of course to ask a couple of simple questions:

Citing the Sullivan-Linick memo, we asked how is this going to discourage retaliation on whistleblowers when we don’t know what consequences officials face when they are the perpetrators of such retaliation?

Given the latest example of an employee whose security clearance was revoked in retaliation for whistleblowing, we asked if anyone at the State Department has disciplined for doing so?

Since we did not get a response from the Whistleblower Ombudsman, we asked State/OIG for comment last month and was told the following:

Please note that there are different disclosure and review processes for contractor and employee whistleblower retaliation allegations. There is also a different review process for allegations of whistleblower retaliation in the form of actions that have affected an employee’s security clearance. OIG primarily reviews contractor whistleblower and security clearance retaliation allegations, while the Office of Special Counsel generally reviews employee retaliation allegations.

Congress enacted a new provision last year that requires an agency to suspend for at least 3 days a supervisor found to have engaged in a prohibited personnel practice, such as whistleblower retaliation, and to propose removal of a supervisor for the second prohibited personnel practice. OIG believes that these new provisions will demonstrate that there are serious consequences for whistleblower retaliation.

The case you are referring to is a retaliatory security clearance revocation case, and the decision about what action to take has not yet been determined by the Department.

So it’s now September. If the State Department believes, as the memo states that “Whistleblowers perform a critically important service to the Department of State and to the public” we really would like to know what the State Department has done to the official/officials responsible for this retaliatory security clearance revocation.

 

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State OIG Appoints Whistleblower Ombudsman, Releases “Know Your Rights” Video

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The Whistleblower Protection Enhancement Act of 2012, requires every IG to appoint an Ombudsman.  The Act requires that an ombudsman educate employees about the rights and protections available to whistleblowers.

The State Department IG Steve Linick has appointed Jeff McDermott as Ombudsman for the Department of State and the BBG. Mr. McDermott is a career appointee and his ombudsman duties are in addition to his duties as a senior investigative counsel.  He also serves as the OIG’s representative to the Justice Department’s whistleblower protection committee and counsels individual whistleblowers.  Within OIG, he works with the Office of Investigations to investigate allegations of retaliation by contractor and grantee employees.  He is available to discuss the protections against retaliation and how to make a protected disclosure, but he cannot act as your legal representative or advocate.  You may contact him at at OIGWPEAOmbuds@state.gov. Read more here. The “Know Your Rights” video is here. We asked the OIG a couple of questions:

Q: What protection is there for whistleblowers?

The law protects individuals from reprisal for reporting potential misconduct or alleged criminal activities. Reprisal can come in the form of a prohibited personnel practice which occurs when a person with authority takes, fails to take or threatens to take a personnel action against an employee because of the employee’s protected disclosure and can include details, transfers, reassignments, and significant changes in duties, responsibilities, or working conditions.

Q: Are hotline callers automatically considered whistleblowers? 

No, whether or not a hotline caller is considered a whistleblower depends first on whether the hotline caller has made a protected disclosure. The caller may be entitled to whistleblower protection if he or she indicates that a personnel action was taken because of the protected disclosure. Under the Whistleblower Protection Act, the Office of Special Counsel may receive and investigate claims for whistleblower protection from federal employees, former federal employees, and applicants for federal employment. In addition, OIG offers confidentiality or anonymity to any individual who contacts the hotline and fears retaliation because of the disclosure. In 2013, Congress created a pilot program whereby employees of contractors and grantees who allege they are retaliated against for whistleblowing can request an investigation by the OIG, and in these cases, OIG does determine whether a complainant qualifies as a whistleblower and whether retaliation occurred because of the whistleblowing activity.

We were told by State/OIG that in 2014, the office processed 1,278 Hotline complaints for the calendar year.  We understand that this is generally in line with the amount of complaints the OIG processed in 2013.  However, a significant portion of the OIG complaints reportedly pertain to visa issues, and those complaints are sent to Consular Affairs for appropriate response and action.  Occasionally, the office also receive complaints that do not pertain to Department of State or Broadcasting Board of Governors matters – i.e. Veteran’s Affairs, Department of Justice, Health and Human Services, etc. Those submissions are referred to the appropriate Office of Inspector General and are not counted in State/OIG’s tally of “processed Hotline complaints”.

Some notable whistleblowers have been brought to life on the big screen.  Check out the top 10 whistleblower movies via http://www.WatchMojo.com:

[grabpress_video guid=”2e5ae090f8e0e63adb2b155a5f98a0f150bf36f7″]
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UPDATE:

“A Concerned FS Officer” sent us the following for your consideration, appended to this post on 2/9/15 at 15:47 PST:

While “retaliation” is officially forbidden, it is close to impossible to prove. Assignments, for example, are at the Dept’s discretion, needs of the service, etc. and it can just be a coincidence that your whistleblowing and your assignment to the butthole of the world coincide. Same of course for the black hole of promotions.

Once you are a troublemaker, er, whistleblower, be prepared for a non-retaliatory “routine” deep dive into your life. Suddenly there’s a need to audit your travel vouchers back to the Dulles era, DS needs to update your clearance based on info received you can’t see, that sort of thing. All of those moves are well-within the Dept’s routine responsibilities and you’ll never prove they’re connected to your talking to the OIG.

If you are contemplating blowing the whistle, speak to a qualified, outside lawyer first. AFSA has its place, but you need serious advice from someone familiar with the real-world case law, not just Dept practices.

 

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