State/OIG Hotline and Resources For Whistleblowers in the Federal Service

 

 

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Trump Visits @USUN, Talks Whistleblower, Hear the Laughter

 

 

 

Susan Pompeo wants you to know she’s making happiness, security of diplomatic families her mission

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On July 6, 2019, just days after the July 1st CNN report  on a whistleblower claiming Secretary Pompeo’s security picks up Chinese food, and the dog, Sherman, apparently from the groomer, the Washington Times has a rollicking coverage of Susan Pompeo.
‘Do you feel safe?’ Susan Pompeo makes happiness, security of diplomatic families her mission” blares the headline. She’s not a government employee, so the  chances of getting her on the podium to speak about this mission is not high, but the next time reporters get a chance to er … grill her, please ask her where she was when State Department employees were terrified while trying to find an accommodation for their special needs children and their education while overseas.
Where was Mrs. Pompeo when the medical provider at State was deemed to lack a “fundamental lack of compassion”  and lack of understanding and empathy for Foreign Service personnel and families?
Where was Mrs. Pompeo when a senior official of her husband’s agency appears to believe that individuals and families with any sort of special need should not serve overseas, should curtail or break assignments, should stay indefinitely in the United States, or even leave the Foreign Service altogether?
Employees and family members already facing physical, mental and educational challenges, also had to face fear of retribution given the reported hostile and adversarial relationship fostered by a bureau tasked with taking care of employees and families.
Despite reported mistreatment, Foreign Service families have not publicly pushed back, and anything reported are only on background, for fear that their actions could result in the denial of financial support for needed services for special needs children  or fear that it would put in jeopardy clearances for themselves and their dependents. Without appropriate clearances, employees would not be able to work overseas or may have to contend with family separation for members with limited clearances.
If taking care of diplomatic families has become her mission, we’re curious where was Mrs. Pompeo when this issue was causing so much pain, fear, and distractions among FS families? (Also see Under Secretary Bulatao on Enhancing Support for Employees with Children with Special Needs 
As an aside – we should note that following the furor over her travel with Secretary Pompeo during the January 2019 government shutdown, CNN reported that the secretary described his wife’s trip as a “working trip”  — apparently telling reporters she joined him to try to help the department “be better.” “So she meets with the medical officers. She’ll tour housing. She will write up her thoughts and comments after that. And I wish I had time to do each of those things myself, but she is a force multiplier,” Secretary Pompeo said according to CNN.
If she did a trip report for that January trip, it has so far remained a secret.  By March 2019, as she became increasingly visible flying around with Secretary Pompeo, the official word coming out of Foggy Bottom is that the secretary “reimburses the United States government for all appropriate expenses, including Mrs. Pompeo’s travel, in accordance with the law.”
Oh, by the way, we think employees at a small post — with leaks in a new embassy compound building roofs in Paramaribo and suffering from exposure to mold — needs help. The health hazard was identified in March 2017!  And the problem still had not been resolved.  Imagine that. We’re guessing that they are not terribly happy nor feeling heath-safe over there.

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State/OIG Substantiates Allegation of Whistleblower Retaliation, @StateDept Says Nah, WhatYaTalkingAbout?

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Via State/OIG Semi-Annual Report to Congress: October 1, 2018 – March 31, 2019:

The whistleblower protection coordinator, OIG’s Assistant Inspector General for Evaluations and Special Projects, educates Department and USAGM employees, as well as contractor and grantee employees, on the rights and protections available to whistleblowers. As required by the National Defense Authorization Act for Fiscal Year 2013 (41 U.S.C. § 4712), the coordinator oversees investigations of allegations of retaliation filed by employees of contractors, subcontractors, grantees, and subgrantees, as well as personal services contractors.
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[T]he coordinator investigates complaints under Presidential Policy Directive 19, which prohibits whistleblower retaliation in the form of actions that affect an employee’s eligibility for access to classified information. During this reporting period, OIG’s whistleblower protection coordinator completed one report under 41 U.S.C. § 4712, which substantiated allegations of whistleblower retaliation.

Department of State:

“OIG substantiated one allegation of whistleblower retaliation related to a Department personal services contractor. This case was referred to the Department, which is responsible for making a determination as to whether to grant or deny relief to the whistleblower. On March 25, 2019, the Department denied relief to the whistleblower because it believed that there was a lack of direct evidence of retaliation.”

 

State/OIG Finds @StateDept Revoked Security Clearance in Retaliation For Whistleblowing

 

Via State/OIG

OIG did not substantiate any allegations of whistleblower retaliation related to Department contractors or grantees. However, OIG did substantiate an allegation of a security clearance revocation in retaliation for whistleblowing activity under PPD-19. As required by the Foreign Affairs Manual, OIG reported its findings to the Under Secretary for Management. The report recommended that the whistleblower’s security clearance be reinstated.

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Presidential Policy Directive-19 (PPD-19) PDF

The brief note from State/OIG’s semi-annual report includes little details about a security clearance revocation, not suspension. According to 12 FAM 233.4, suspension is an independent administrative procedure that does not represent a final determination and does not trigger the procedures outlined in 12 FAM 234, which includes revocation.  With revocation, the Department may determine that immediate suspension without pay from employment under 5 U.S.C. 7532 is deemed advisable.

After State/OIG’s referral to “M”, the Under Secretary for Management will reportedly transmit the IG materials to the Security Appeals Panel, “if one is convened in the matter, and to other Department officials as appropriate” according to the Foreign Affairs Manual.

Note that the State Department does not have a Senate-confirmed “M” as of this writing. We want to know if the security clearance is not reinstated per OIG recommendation.

State/OIG’s semi-annual report also does not include information on consequences for the individual/individuals who perpetrated the revocation of this whistleblower’s security clearance in retaliation for whistleblowing activity.

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Rainey v. @StateDept: Attention Whistleblowers — Rules and Regs Are Not Laws

Posted: 2:14 am ET
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Last year, we blogged about a decision by the Merit Systems Protection Board concerning a Whistleblower Protection Act case where a State Department employee, Timothy Allen Rainey, alleged that the agency stripped him of certain job duties and gave him a poor performance rating after he refused to follow an order that would have required him to violate federal acquisition regulations (FAR) and training certification procedures. See Rainey v. State Department: “Right-to-Disobey” (Precedential Decision).

On June 7, 2016, the U.S. Court of Appeals for the Federal Circuit upheld the Merit Systems Protection Board ruling in a precedent-setting opinion — agreeing that the term “a law” in section 2302(b)(9)(D) refers only to a statute, and not to a rule or regulation.

In this IRA appeal, Rainey claimed that his duties as contracting officer had been taken away from him because he refused to obey his supervisor’s order to tell a contractor to rehire a terminated subcontractor.  Rainey contended that he refused to obey the order because dong so would have required him to violate a provision of the Federal Acquisition Regulation.  The issue was whether the right-to-disobey provision of the Whistleblower Protection Act, 5 U.S.C. §  2302(b)(9)(D), which protects covered employees from retaliation “for refusing to obey an order that would require the individual to violate a law,” applied to the appellant, who alleged that he had suffered retaliation for refusing to obey an order that would require him to violate a regulation.  The Board, relying on a recent Supreme Court decision, Department of Homeland Security v. MacLean, 135 S. Ct. 913 (2015), which held that the word “law” in the “right-to-disclose” provision of the WPA, 5 U.S.C. §  2302(b)(8), refers only to statute, and not to a rule or regulation, ruled that the term “a law” in section 2302(b)(9)(D) should also be interpreted to refer to a statute, and not to a rule or regulation.  122 M.S.P.R. 592 (2015).

The Court writes:

Dr. Rainey makes a final argument that the FAR is a particularly important regulation that has the full force and effect of law and therefore should be regarded as “a law” within the meaning of section 2302(b)(9)(D) even if other regulations do not qualify as “laws” for purposes of that statute. The first problem with that argument is that substantive agency regulations that are promulgated pursuant to statutory authority typically have the “force and effect of law,” see Perez v. Mortgage Bankers Ass’n, 135 S. Ct. 1199, 1204 (2015); Chrysler Corp. v. Brown, 441 U.S. 281, 295 (1979), so that feature does not distinguish the FAR from other more quotidian legislative rules. The second problem with the argument is that, as noted, there is nothing in the section 2302(b)(9) that even hints at a distinction between important regulations and less important regulations; to the contrary, the statute distinguishes between “a law” and “law, rule, or regulation,” and the FAR clearly falls on the “regulation” side of that divide.

What now?  Court says “Congress is free to alter the scope of the statute”:

Dr. Rainey’s arguments are heavy on policy reasons why Congress likely would not have wanted to confine the scope of section 2302(b)(9)(D) to statutes. Those policy considerations are not without force, and it may be that the statute should be extended to cover rules, regulations, and other sources of legal authority. If so, Congress is free to alter the scope of the statute. But we are not so free. Between the restrictive language chosen by Congress and the closely analogous decision of the Supreme Court in MacLean, we are constrained to hold that the protection granted by section 2302(b)(9)(D) is limited to orders that are contrary to a statute, and does not encompass orders that are contrary to a regulation.

This is bad.  So basically State Department employees will not be able to get whistleblower protection for refusing orders that violate rules or regulations in the Foreign Affairs Manual/Foreign Affairs Handbook.  If a supervisor orders an employee to break the rules/regs in the FAM/FAH, the employee must comply or be subjected to disciplinary action/s?  How nutty is that?

Click here to contact your congressional representatives.

Read the ruling below or read it via mspb.gov here (PDF). 

 

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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:

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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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