"The level of protection you have when you blow the whistle depends on the work you do, what you blew the whistle on, and in what state you reside. If your industry is not covered under a federal whistleblower law, and your state has not recognized whistleblower rights, you are out of luck."

All the more reason you need to read his book, in this reviewer’s opinion.

Kohn’s book focuses heavily on the Qui Tam laws available to whistleblowers. These are statutes that permit whistleblowers to collect a share of the recovery while returning the remainder to the Federal Government defrauded of it in the first place. While not explicitly laying out the numbers on attorney fees, it becomes quite clear through other numbers that this is the prize program. Prevailing whistleblowers walk away with millions, the government recovers millions, and the attorneys — very likely — likewise: all without the taxpayers ever having to pay a dime of it.

It’s not just a book on Qui Tam, however. It’s a comprehensive guide to the laws protecting workers reporting fraud, mismanagement and safety violations. Kohn’s book covers everything a would-be whistleblower needs to know: whom to tell, how to tell it, and what to do next. It’s a wealth of information on protected disclosures, mandatory elements under the law and the extent of pretext the employer will use to discredit the truth-teller. And yes, there’s also a section on recoverable attorney fees.

This website has had its primary focus on federal employee whistleblowers. On this subject, Kohn is brief but succinct. In one page, he says precisely what you need to know. Writes Kohn on the Merit Systems Protection Board (MSPB), “Cases are heard before “administrative judges,” . . .AJs do not need to be licensed attorneys and are not subject to judicial qualification.” Kohn then goes on to highlight other arenas that federal employees under certain circumstances may find whistleblower relief outside of this administrative court.

Kohn saves his most biting critique of false whistleblower protection not for MSPB though. Instead, he opts for the Occupational Health and Safety Administration under the US Department of Labor. Kohn writes, “In 2009 OSHA received over twelve hundred retaliation complaints, yet they filed lawsuits on behalf of only four workers.” Kohn notes that under OSHA only token settlements are available to those who risk their own livelihoods for the safety of others. Absent the Secretary of Labor bringing action in court, no other remedy is available to the aggrieved.

Perhaps the most amazing part of Kohn’s book is saved for the very end, the back cover to be exact. The Whistleblower’s Handbook is being marketed as a layman’s guide to exposing workplace wrongdoing. It does precisely what it sets out to do. In paperback, this invaluable source of information and reference retails for just $16.95 and can be purchased at leading book retailers, or directly from the source. Proceeds will go toward National Whistleblower Center programs for furthering advocacy for whistleblowers. Read it. For any would-be whistleblower with a perception of protection under the law, it may be the best investment you can make.

==Disclosure: This book reviewer is currently an appellant being represented on an affordable basis by David Colapinto, partner of Stephen Kohn at Kohn, Kohn and Colapinto. As a sidenote though, given the abysmal rate of return for federal employees vis-a-vis other venues available to attorneys, Kohn’s book only underscores the point that their efforts on my behalf make a statement about the need for stronger whistleblower protection for civil servants. I don’t believe their solicitude has in any way altered my viewpoint on the book. For $17, you can get a well-written, well-organized manual that will save you from the grief of not taking the proper steps to protect yourself too.

S.372 – Whistleblower Protection and an Open Letter to MISC

Dear Make It Safe Campaign (MISC),

Throughout the course of this inadvertent journey into a whistleblower’s world, I’ve found few true heroes. Tom Devine of the Government Accountability Project (GAP) is among the handful I can say has no truer agenda than defending needed transparency and protecting the underdogs that reveal it.  His work with the Government Accountability Project (GAP) spans decades and his institutional knowledge of accountability protection is unparallelled.

I cried in relief when GAP announced it would defend Martin Salazar, a whistleblower whose EEOC disclosures led to criminal prosecution and jail time.  GAP was there for Mr. Salazar when the rest of society ran away in fear.  GAP was there for Robert MacLean too, when his attorney could no longer foot the bill from years of litigation in MSPB as well as our US Courts.  On a personal note, when the Department of Labor dismissed my own complaints of foul play with scores of affidavits attesting to the destruction of evidence not just in my case, but in a policy that ordered such, GAP put me in touch with the people who could order remedy.  (A point made when Citizens for Accountability and Ethics in Washington (CREW) filed a complaint with NARA and NARA ordered an investigation into the matter).

It pains me therefore, to disagree with MISC here, on the fate of Senate Bill 372.

Last week, when I signed MISC’s change.org petition to pass the bill  I did so with an asterisk.  Robert MacLean, appealing to his supporters, made a number of personal pleas to get the legislation out of the Senate and into reconciliation mode.  When I put my name to the petition, I did so with the understanding that the bill’s main supporters would then work fervently to get the best parts of the bill passed and the poorest parts thrown out.  In retrospect, it may have been a bone-headed and risky action: one made from the heart and not from the head.

My concerns with the Senate bill still stand.  You can read more on the analysis here: Good Intentions, Bad Law: The Proposed Whistleblower Act S.372.  With any type of legislation, the devil is in the details.  While much has changed since then — notably my elevated opinion of MSPB leadership — laws should be written for the lowest common denominator: those that would seek to circumvent them.

Put briefly, as it now stands, Senate Bill 372 is a trojan horse.  On its surface, it promises the benefit of a jury trial in district court.  In reality however, it brings the worst of both worlds (i.e. MSPB and District Court) into play. 

MSPB currently has special rules that don’t apply in US Courts.  Under Senate bill S.372, those special rules — such as the use of hearsay and sua sponte in camera review — are still valid.  Under Senate bill S.372, the use of the worst aspects of district court are then added to MSPB’s arsenal.  Namely, under the proposed Senate iteration, MSPB is now permitted  two horrible actions: the right to predetermine whether a case would be dismissed, and the right to render summary judgment.  In combination with overreaching subjective authority (i.e. hearsay and sua sponte in camera review), under the proposed law, MSPB would have more authority than the US court system and alongside with it, essentially unchecked power.  Further, as the aforementioned analysis notes, the right to a jury trial is precluded in essence by MSPB’s right to predetermine dismissal.  Should MSPB chose not to hear a case, the whistleblower appellant has no option other than bringing the case before the Federal Circuit, sans hearing.  Those decisions are, as is current practice, deferential: not questioned beyond whether such a decision was outside of permitted statute.

Returning to my current evaluation of the new MSPB as a purveyor of governmental merit does not change my opinion.  As a quasi-judicial entity in the Executive Branch, MSPB is an interpreter of law, not a creator of it.  To the extent that it can divine lawmakers’ intent, it does.  To the extent that hard rules are put in place, it abides by them.  Such is the nature of our tripartite democracy.  In attempting to see this from MSPB’s point of view — the new whistleblower legislation makes their mission of retaining merit in government more difficult, and not less.  My own viewpoint here, is not from that of an advocate, but as one who has experienced MSPB and MSPB laws firsthand.  The new laws and the processes needed to adjudicate them are in essence, yet another twist in the already complex Gordian knot created by the Civil Service Reform Act (CSRA) and the first Whistleblower Protection Act (WPA).  As such, my own preference would be legal simplification by lawmakers rather than an added layer of complexity.

As both a pragmatic matter and one of loyalty to individuals, I still stand with MISC in voicing a need for whistleblower protection.  I also exercise my common sensibilities too however, in asking MISC to seriously consider the repercussions of the Senate bill as proposed.

Respectfully yours,
Charlotte Yee