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NWC Files Another Brief Urging the MSPB to Retroactively Apply WPEA

On April 12, 2013, the National Whistleblower Center filed an Amicus Curiae brief with the Merit Systems Protection Board (MSPB), in the case of King v. Department of the Air Force. At issue is whether the provision of the Whistleblower Protection Enhancement Act of 2012 (“WPEA”) regarding compensatory damages applies to all current cases pending before the MSPB. The MSPB requested stakeholders to file briefs on the issue as they did in Day v. Department of Homeland Security.  

In its brief, the NWC again strongly urged the MSPB to retroactively apply the WPEA to all pending cases. The MSPB’s decision will impact the fate of federal employees and whistleblowers that filed claims or suffered retaliation before the WEPA was signed into law on November 27, 2012.

Stephen M. Kohn, Executive Director of the NWC, said, “it is unequivocal that the intent of Congress was to apply the WPEA, including the provision on compensatory damages, to all pending cases retroactively.”

The NWC’s brief can be viewed here.

 

Dean Zerbe Honored As Contender for 2012 Tax Notes Person of the Year

Dean Zerbe
On January 6, 2013 The Urban-Brookings Tax Policy Center was announced as the 2012 Tax Notes Person of the Year. Tax Notes also recognized nine others who were “contenders” for the title. Among the contenders was the National Whistleblowers Center’s Senior Policy Analyst, Dean Zerbe.

Zerbe gained significant recognition in 2012 when he and co-counsel Stephen M. Kohn helped internationally acclaimed UBS whistleblower Bradley Birkenfeld obtain a historic $104 million reward.  Mr. Birkenfeld’s unprecedented disclosure resulted in cracking the illegal offshore Swiss bank system and resulted in over $5 billion recovered for U.S. taxpayers. Birkenfeld’s information forced Switzerland to change its international treaty with the United States resulting in it’s largest bank being forced to turn over the names of over 4,900 U.S. citizens who held illegal offshore accounts.

In Zerbe’s position as Senior Policy Analyst with the NWC he has frequently commentated on the government's development of the revised IRS whistleblower program. He has pressed the IRS to develop guidance on whistleblower anonymity and to define procedures for award payments and timelines for acting on whistleblower information. In addition, Zerbe co-authored with Kohn, on behalf of the NWC, an amicus brief filed with the Tax Court addressing key questions of law governing the IRS Whistleblower program. The brief, linked here, addressed the issue of "collected proceeds" under the IRS whistleblower law. The "collected proceeds" issue impacts hundreds if not thousands of cases in which the IRS must determine whether a whistleblower is entitled to a reward based on monies obtained by the U.S. government related to tax violation.

Special Holiday Offer

This year, as you are deciding what to give your loved ones, friends, and colleagues for the holidays, why not choose to give something interesting and useful? One of the most powerful gifts you can give is knowledge.

The Whistleblower's Handbook: A Step-by-Step Guide to Doing What's Right and Protecting Yourself is the best gift you can give an employee.

When you make a $25 or larger donation to the National Whistleblowers Center between today and December 31, 2012, you will receive a copy of The Whistleblower's Handbook as our gift to you. You will also receive free shipping on any additional copies of The Whistleblower's Handbook that you order by December 31, 2012. 

The Whistleblower's Handbook sets forth twenty-one basic rules every potential whistleblower needs to know. It also provides a guide for how whistleblowers around the world can use the Foreign Corrupt Practices Act to qualify for a whistleblower reward.

The Whistleblower's Handbook is the authoritative reference for anyone who has ever wondered how they might blow the whistle - and, once they've done so, how to prevail.

Limited quantities available. Make your tax-deductible Donation Now!

 

Congress Passes Magnitsky Act

 

Sergei Magnitsky
        Sergei Magnitsky

On December 6, 2012 Congress passed the Sergei Magnitsky Rule of Law Accountability Act of 2012. (Magnitsky Act). The law was inspired by a Russian lawyer named Sergei Magnitsky, detained in 2008 after he blew the whistle on a $230 million tax fraud scheme involving the collaboration of Russian government officials and convicted criminals. He was arrested for his whistleblowing and detained for nearly a year before he was beaten to death in prison.

In October 2012, Stephen Kohn, Executive Director of the National Whistleblowers Center, interviewed Jamison Firestone, the law partner and friend of Sergei Magnitsky. Mr. Firestone related the horrific yet compelling tale of what happened from the time Mr. Magnitsky uncovered the tax fraud until his death at the hands of the Russian authorities. Listen to the interview.

The passing of the Magnitsky Act is a major step forward in the protection of international whistleblowers. This is the first time the U. S. Government has passed a bill in recognition of the hardship and sacrifice of international whistleblowers. This move sets important precedence for the advancement of increased protections for whistleblowers throughout the world. In addition to the Magnitsky Act, the U.S. Congress has significantly enhanced protections for international whistleblowers through the reward provisions applicable to the Foreign Corrupt Practices Act and under the IRS Whistleblower law, which allows foreign nationals to blow the whistle on U.S. tax evaders in other countries.

The Magnitsky Act is meant to address “Systemic corruption” which “erodes trust and confidence in democratic institutions, the rule of law, and human rights protections.” In accordance with this new law, the State Department will be required to make a list of some 60 Russians implicated in corruption and human rights violations in Russia public.  Making the list public will make it harder for those Russians to enter the country, leave the country, or have a bank account or other assets on U.S. soil.

“The horrific treatment of Sergei Magnitsky that resulted in his death at age 37 sent a chilling effect, not only in Russia but around the world.  The U. S. Congress, with support of the White House, passed the Magnitsky Act with overwhelming bi-partisan support. This is an historic step in the advancement of international whistleblower protection,” stated Mr. Kohn

President Obama is expected to sign the Magnitsky Act into law within the next ten days. Read the text of the

Magnitsky Act.

 

Record Recoveries under False Claims Act

 

The Justice Department confirmed in a release issued on December 4 that it has been a record year for recoveries from the False Claims Act.  In fact 2012 garnered the DOJ the “largest annual recovery in Department history.” Most of the recoveries were from actions filed under the whistleblower/qui tam provisions of the FCA.  The DOJ release notes, “Of the $4.9 billion in fiscal year 2012 recoveries, a record $3.3 billion was recovered in whistleblower suits.”

“The whistleblowers who bring wrongdoing to the government’s attention are instrumental in preserving the integrity of government programs and protecting taxpayers from the costs of fraud,” said Principal Deputy Assistant Attorney General Stuart F. Delery.   “We are extremely grateful for the sacrifices they make to do the right thing.”

“The Justice Department’s official recognition of the importance of whistleblowers in fraud detection is an important step forward,” stated Stephen Kohn, Executive Director of the National Whistleblowers Center, in response to the DOJ release. Kohn continued, “Whistleblower reward laws are the single most effective mechanism to induce employees with knowledge of fraud to risk their careers in serving the public interest.

The DOJ’s release is linked here.

 

NWC Files Amicus Brief on IRS Whistleblower Program

On November 5, 2012, the National Whistleblower Center filed a briefing paper/amicus brief with the Internal Revenue Service addressing key questions of law governing the IRS Whistleblower program. The brief, linked here, addresses the issue of "collected proceeds" under the IRS whistleblower law. The "collected proceeds" issue impacts hundreds if not thousands of cases in which the IRS must determine whether a whistleblower is entitled to a reward based on monies obtained by the U.S. government related to tax violations.

The brief was co-authored, pro bono, by myself and Dean Zerbe. In a statement issued by the NWC, Zerbe explained the importance of the briefing paper: "Whistleblowers are eligible for rewards based on the government recovering ‘collected proceeds.' A narrow definition of this term will devastate the impact of this critical whistleblower law and result in a hardship to hundreds (if not thousands) of whistleblowers who lawfully report tax violations but who are found ineligible for a reward based on a restrictive and hyper-technical definition of the term ‘collected proceeds.' Whistleblowers risk their careers to help detect fraud. They should not be doubly punished for their good deeds."

 

Moral Courage in Organizations

Moral Courage in OrganizationsEditors Debra Comer and Gina Vega want to know why ethics education in business schools is not working. Years after business schools beefed up their ethics programs, half of employees still report seeing misconduct at work. They want employees to have both the motivation to discover and remedy misconduct, and the courage to accept the risk of negative consequences to their own careers.

In the Forward, Yeshiva University professor Moses Pava reports that his business students tell him that, “corporate social responsibility is merely rhetoric designed to fool environmentalists, consumer advocates and other do-gooders.” Pava recognizes that this attitude is consistent with most of today's textbooks in business schools. Moral Courage stands in contrast. It seeks to connect “knowing” the right thing to do, and “doing” the right thing.

A series of articles examine how organizations make it hard for individuals to raise moral concerns. Financial incentives, peer pressure and a deeper issue about how we define ourselves impede most people from speaking up. Gina Vega writes about the competition between risk and rewards in an individual's decision to move from knowing to acting. She also identifies the “moral hazard” individuals face if they lack an incentive to avoid risk. In the Bernie Madoff scandal, the rewards of his ongoing scam protected him from the risk of discovery. When investors saw their accounts go up, they had no incentive to explore whether it was the result of misconduct. Putting aside the repeated efforts of one seeking SEC action, no one showed the courage to raise a concern. In our present economic crisis, those who ran irresponsible risks faced little risk, and small consequences if their risks went sour. Together, the circumstances created a moral hazard big enough for our whole economy to fall through.

In a chapter called, “For the Great Good,” Stephen Kohn writes about the benefits whistleblowers have wrought. Nixon's resignation and Clinton's impeachment; the Pentagon Papers and the collection of taxes from UBS – all flowed from the courage of individual whistleblowers. From a variety of studies, we now know that employee disclosures are the most common means by which frauds are detected. Yet, our laws and legal procedures do not yet provide the level of protection and incentives needed to draw out more potential whistleblowers. U.S. laws are uneven. They protect whistleblowers only for certain categories of concerns and activities. Actual rewards are available only for frauds against the government (including tax fraud) and now for securities and commodities violations (in the Dodd-Frank Act, enacted after Kohn wrote this article). Then Kohn compares the experience of Fredrick Whitehurst at the FBI lab and the promise of the First Amendment. Whitehurst had to risk his career to disclose that the FBI's lab had developed a culture of outcomes instead of integrity. His courage led to new legal protections for FBI whistleblowers. Yet, our Founding Fathers had foreseen the need to call on all Americans to disclose information about “any misconduct, frauds and misdemeanors.” Kohn calls for change in our workplaces and our laws. With changes in our law to protect and encourage whistleblowers, “real change is possible.”
 

While Moral Courage in Organizations is written for use in business ethics education, its principles have wider application. Lawyers, doctors, and anyone with professional responsibility will find challenge and inspiration in these pages.

 Moral Courage in Organizations is available for $39.95 from the NWC Book Store.

After NWC Visit, Hungary Developing Whistleblower Laws

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.

Bloch Fired...finally.

 

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."

Reporter Refuses to Name Sources Who Smeared DOJ Whistleblower

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