Whistleblower Lawyer & Attorney : National Whistleblower Legal Defense and Education Fund : Whistleblower Protection, Fraud Claims : Washington DC

This morning, the AP released a story detailing the failure of the Department of Defense Inspector General's (DoD IG) office to perform it's two essential functions: (a) protect military whistleblowers and (b)investigate their claims. As one whistleblower in the story says: "They are supposed to serve as the conscience of the Department of Defense. And they're not." The AP used Freedom of Information Act Requests and interviews with whistleblowers and advocates to determine multiple shortcomings:

• Although DoD IG received over 3,000 whistleblower claims over the past six years, it found no wrongdoing by the military over 90% of the time.

• 73% of the cases were closed after only a "preliminary review."
   
• A confidential survey of the workers and managers in DoD IG found that the workforce was "demoralized and ambivalent." and that one-third of the employees there were described as "disaffected.

Revalations of this kind would be of concern in any agency or area of government, but this story is particularly worrisome. We know that the men and women serving our country in the military witness countless acts of fraud, waste, abuse, and much worse (think Abu Ghraib). The size of the Defense Budget, and the volume of lucrative government contracts to private corporations in recent years (see Bunny Greenhouse), has increased the need for oversight and whistleblower protection for military employees. Further, military whistleblowers are often more vulnerable to retaliation, and they often have no recourse whatsoever if their claim is rejected by the DoD IG.

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The National Whistleblower Center is reporting success with their international training initiative. NWC President Stephen Kohn recently met with government leaders in Hungary, and as a direct result, their Justice Minister has announced a new initiative to develop effective whistleblower protections for their workers.

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It has become apparent that Scott Bloch, head of the Office of Special Counsel, was fired by the Bush Administration. This decision comes more than five months after Bloch became the target of an federal obstruction of  justice probe. Bloch's tenure has been a tumultuous one, and federal government whistleblowers have paid a heavy price.

The National Whistleblower Center's President, Stephen M. Kohn, issued the following statement upon the termination of Special Counsel Scott Bloch:

"The termination of Special Counsel Scott Bloch represents the low point in the history of the Office of Special Counsel. Originally intended to protect whistleblowers, the Office has never fulfilled its promise. Since its inception, the Office has ignored or ruled against the overwhelming majority of federal employee whistleblowers. The institution itself has never acted as a "safe harbor" for whistleblowers. Under Special Counsel Bloch, the Office imploded. Ignoring its mission to protect whistleblowers, the management of the OSC turned on its own staff."

"Change must come to the OSC and it must come fast. We call upon the new President and Congress to ensure that the position of Special Counsel be filled by a truly experienced and competent advocate for whistleblowers. Moreover, Congress and the President must act in a bi-partisan manner to ensure that never again will the Office be politicized and used as a patronage slot. The problem rests with both the President and Congress. Historically, Congress has failed to exercise any oversight concerning the appointment of the Special Counsel. That must end. This position is critically important for the enforcement of federal laws and the protection of taxpayer dollars. Employees risk their careers to do the right thing and report misconduct and abuses of power. The new President must do the right thing and appoint a Special Counsel who can protect these American heroes. Congress must do its job and demand that the next Special Counsel has the background, experience and expertise demanded under the Whistleblower Protection Act."

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UPDATE: The Washington Post is now reporting the Scott Bloch has resigned, effective yesterday, after a meeting with White House officials. The Post is covering the Bloch resignation HERE and HERE

 Click here to view Bloch's resignation letter.
 

UPDATE:   GOVEXEC.COM IS NOW REPORTING THAT THE WHITE HOUSE FORCED BLOCH OUT.

 GovernmentExecutive.com is reporting the Office of Special Counsel chief Scott Bloch has submitted his resignation to President Bush, effective January 5th. Although Mr. Bloch probably would not have lasted long under a new administration (his 5 year term ends in January), there was no replacement selected and he may have been able to serve past his term.

Bloch has had more than his share of issues while attempting to lead the independent agency charged with investigating federal government whistleblower complaints. He has dealt with whistleblower complaints against his agency, and an FBI Investigation into allegations that he hired the "Geek Squad" to wipe agency computers clean.
 

GovExec says that Bloch submitted, "a defiant two-page resignation letter to President Bush that quotes Sophocles and list[ed] his achievements at OSC."

UPDATE (10/22/08): The Washington Post has this story detailing Bloch's many disservices to federal workers. 

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On September 11, we reported on the whistleblower case of former federal prosecutor Richard Convertino. Mr. Convertino has brought a Privacy Act action against the US government for leaking disparaging information with the goal of smearing Mr. Convertino in retribution for blowing the whistle on DOJ mismanagement of terrorism investigations. Last month, Federal Judge Max Cleland ordered Detroit Free Press reporter David Ashenfelter to appear and testify in depositions regarding the identity of his confidential DOJ sources who leaked the information.

Now, Mr. Ashenfelter is still refusing to testify, in violation of Judge Cleland's order. Steve Kohn, who is Mr. Convertino's attorney, has indicated that Mr. Ashenfelter could be held in contempt for his actions. This story has been reported nationwide, including articles with the Associated Press and in The Detroit Free Press

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The IRS recently changed the rules for tax whistleblowers, improving confidentiality standards for those who report tax fraud. Accountingweb.com has the story here.

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Today the US Supreme Court heard oral arguments in Crawford v. Metropolitan Government of Nashville and Davidson County. The court's decision will decide whether employees who participate in an internal company investigation are protected by law.

The National Whistleblowers Center has more information on this case, including the briefs filed by both parties. Click here to read the press release on their brand new website!

UPDATE: HERE IS A LINK TO THE TRANSCRIPT OF THE SUPREME COURT ORAL ARGUMENTS

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The following blog post was authored by Richard Renner, the Legal Director for the National Whistleblower Center. Click Here to view Richard's Bio

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A federal appeals court in New York has held that an employer's mandatory arbitration agreement prohibits employees from seeking jury trials in Sarbanes-Oxley cases. On October 2, 2008, the Second Circuit Court of Appeals affirmed the dismissal of Linda Guyden's suit against Aetna.

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 Next Wednesday, October 8, 2008, the United States Supreme Court will hear oral argument in the case of Crawford v. Metropolitan Government of Nashville. The issue is whether employees are protected from retaliation when they answer questions in an employer's internal investigation of a discrimination claim. In Vicky Crawford's case, the City received reports that a supervisor was engaging in sexual harassment. An investigator asked Crawford if she had seen any sexual harassment by this supervisor. She said yes, and reported that she herself had been harassed by this supervisor. She was fired shortly thereafter. The Sixth Circuit Court of Appeals held that even if Crawford was fired for answering the intestigator's questions, that was not protected participation in any official proceeding.
 

An amicus brief by the National Employment Lawyers Association (NELA) and other groups argues that employees like Crawford need protection. If we expect employers to voluntarily comply with the antidiscrimination laws, then the employers need to get accurate information about what is happening on the shop floor. Unless employees are protected for what they say during internal investigations, employers will not get the best information about what is really happening. The brief notes that the law protects both "participation" in proceedings, and also "opposition" to unlawful discrimination. While "opposition" activity must be based on facts that could reasonably support a finding of unlawful discrimination, "participation" has normally been broadly construed to encourage all persons to assist in enforcement activities. Participating witnesses are normally protected no matter what they say.
 

If Crawford is unsuccessful in her appeal, employees will need to be more attentive to answering investigators' questions only when an administrative charge or court action is already filed. It may encourage employees to file quickly so that their activities, and those of their witnesses, will be protected. Hopefully, the Supreme Court will see the wisdom in the long line of prior court decisions that have provided protection to participation at any stage of a case, including the very initial internal investigations. A decision is expected in the first half of next year.

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