Police Whistleblowing Leads to Legislative Action in Connecticut

Posted on May 1, 2008 by Marshall Chriswell


Recently I wrote a blog post on the need for whistleblower protection in the South Carolina State Police and how their upper eschelon was retaliating against troopers who blew the whistle on a fellow officer who intentionally hit a suspect with his car.


Although there has been no news of reform out of South Carolina, at least one state is getting the message. Connecticut's state senate has passed expanded whistleblower protection in the wake of its own state police corruption and retaliation scandal.


Since the U.S. Congress has yet to pass meaningful whistleblower reforms for Government employees, it is important that states act to sure up protections for honest employees who report waste, fraud and abuse.


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Retaliation Against FAA Whistleblowers Highlight the Need For Legislative Action

Posted on April 7, 2008 by NWLDEF

As you have no doubt heard, last week two Federal Aviation Administration (FAA) employees told reporters that Southwest Airlines had engaged in an extended campaign to avoid mandatory safety inspections and had attempted to have FAA inspectors who discovered the violations removed. This is just another shocking story that illustrates the need for federal employee whistleblower protections.


Last week, National Public Radio reported that, in March of 2007, after documenting years of inspection failures by Southwest Airlines, FAA inspector Bobby Boutris discovered that Southwest Airlines had failed to do mandatory safety inspections for cracks around the windows of their 737s.  These inspections are very important because, if such cracks develop, they could cause the plane to explosively decompress during flight.  This happened on an Aloha Airlines 737 flight in 1988, where cracks caused an 18 foot section of the plane’s roof to blow out and sucked a flight attendant out of the plane to her death.  


Unfortunately, despite discovering serious violations that posed a significant risk to the safety of Southwest’s passengers, Boutris’ story took a turn depressingly familiar to whistleblowers.  Instead of taking action, Boutris’ supervisor Douglas Gawadzinski, who was close friends with Southwest’s manager for regulatory compliance (himself a former FAA inspector) chose to ignore Boutris’ reports.  When Boutris wanted to send Southwest a letter of inspection, Gawadzinski refused.  When Boutris pressed harder, Gawadzinski first simply blocked him and then removed him from the inspection and told him that “his career was in jeopardy” because of “undisclosed complaints from anonymous Southwest officials.” 


The second FAA whistleblower, Douglas Peters, took over the inspection after Boutris’ removal.  However, after he confirmed Boutris’ findings, he too met with resistance from his superiors and the FAA took no action to correct Southwest’s dangerous inspection failures.


This case highlights the critical importance of passing H.R. 985, the Whistleblower Protection Enhancement Act of 2007.  Among its other substantial improvements to current whistleblower protections, this proposed law specifically protects statements that a federal employee makes in the course of performing his “official duties.”  This is necessary because, under current law, public employees like Boutris and Peters, who discover and report wrongdoing while on the job, have virtually no protection against reprisal from hostile superiors.


H.R. 985 has been approved by the House of Representatives, and similar, yet inferior, legislation (S.274) has passed the Senate. These bills are now in conference committee. President Bush has vowed to veto H.R. 985.


The courts have long held that the current Whistleblower Protection Act does not prevent public employers from retaliating against employees who, like Boutris and Peters, make unwelcome reports of wrongdoing as part of their “official duties.”  For a time, these “official duty” whistleblowers could still seek protection under the First Amendment, but in 2006 the Supreme Court held that the First Amendment did not protect statements made by public employees in the course of performing their “official duties.”  This effectively gave federal employers carte blanche to retaliate however they pleased against these conscientious public servants, as Bobby Boutris discovered when his supervisor relieved him of his authority to investigate Southwest and threatened his career.  Had the FAA fired Boutris or Peters for doing their jobs and reporting Southwest’s violations, there would be nothing they could do about it. 


Stephen M. Kohn, president of the National Whistleblower Center, issued the following statements regarding the FAA revelations:

“In light of these events it is more important than ever to make sure that public employees like Bobby Boutris and Douglas Peters are able to report the wrongdoing that they discover without fear of retaliation from their superiors.  Public employees, especially federal regulators and inspectors, are often in the best position to not only discover dangers to the public safety, but also to do something about them.  That hostile supervisors can freely retaliate against these dedicated public servants for doing their jobs and working towards the public good is completely intolerable and threatens the safety of every American.  Congress must take action to protect these conscientious individuals.”

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Recently decided case, Ikossi v. Navy, gives hope to some federal employee whistleblowers

Posted on March 17, 2008 by Marshall Chriswell

Federal employees got a bit of good news last month when the United States Court of Appeals for the District of Columbia struck down a district court’s attempt to keep federal employees from being able to litigate non-discrimination claims as part of a “mixed case” complaint: one which can be filed in federal district court when no administrative decision is issued after 120 days. 


This decision, Ikossi v. Department of the Navy, together with two prior Court of Appeals decisions, Butler v. West and Evano v. Reno, form a trilogy of cases that produce a roadmap that should that should enable federal employees the right to join a federal Whistleblower Protection Act claim together with a Title VII discrimination claim and proceed to federal court on the entire claim in federal district court when the agency fails to issue a final administrative decision within 120 days. 


According to Michael Kohn, who is General Counsel to the National Whistleblower Center and served as lead counsel in the Ikossi case:


“the most effective way to escape the reach of the MSPB and the Federal Circuit’s stranglehold on whistleblower claims is for those individuals who can raise a Title VII discrimination claim in to file a “mixed case” complaint with a federal agency’s Equal Employment Opportunity (‘EEO”) office claiming that the adverse action flowed from unlawful discrimination and as a result of having engaged in protected whistleblower conduct.”     

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Senate Hearing on False Claims Correction Act This Wednesday

Posted on February 25, 2008 by Marshall Chriswell

The Senate Committee on the Judiciary has scheduled a hearing this Wednesday on the False Claims Correction Act of 2007, S.2041 (discussed previously here). More details to follow...

UPDATE: Stephen M. Kohn, President of the National Whistleblower Center, has submitted written testimony to the committee to be entered into the record at tomorrow's hearing. View the testimony here.

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Bush Signs, then Criticizes, Whistleblower Protections for Defense Contractors

Posted on January 31, 2008 by Marshall Chriswell

Bush signingThis week, President Bush signed the National Defense Authorization Act for Fiscal Year 2008 (HR. 4986). Section 846 of this bill is a provision designed to protect employees of defense contractors when they report fraud to Congress, an Inspector General, the Government Accountability Office, or a Department of Defense employee charged with overseeing contracts.


The Bush administration has consistently opposed whistleblower rights for employees of the federal government and its contractors. Veto threats have been issued against the whistleblower protection legislation that has been proposed by the Congress (click here for the latest on those bills). The administration claims that protecting whistleblowers could harm national security, but the truth is the exact opposite: strong whistleblower laws can help keep this country safe and secure, as well as save us billions of dollars in wasted revenue.


In this case, the President had no choice but to sign the Defense Authorization bill into law, but then he went out of his way to express sharp disapproval of the whistleblower provisions in his signing statement. This statement (below), goes against the spirit of the law, and gives the president justification to ignore a congressional mandate.


“Provisions of the Act, including sections 841, 846, 1079, and 1222, purport to impose requirements that could inhibit the President's ability to carry out his constitutional obligations to take care that the laws be faithfully executed, to protect national security, to supervise the executive branch, and to execute his authority as Commander in Chief. The executive branch shall construe such provisions in a manner consistent with the constitutional authority of the President.”


In short, the new law is a victory worthy of great praise, but the President’s brash treatment of legislation designed to protect honest employees is deplorable.


See the full text of HR. 4986, sec. 846 after the jump...


SEC. 846. PROTECTION FOR CONTRACTOR EMPLOYEES FROM REPRISAL FOR DISCLOSURE
OF CERTAIN INFORMATION.

(a) Increased Protection From Reprisal- Subsection (a) of section 2409 of
title 10, United States Code, is amended--

(1) by striking `disclosing to a Member of Congress' and inserting
`disclosing to a Member of Congress, a representative of a committee of
Congress, an Inspector General, the Government Accountability Office, a
Department of Defense employee responsible for contract oversight or
management,'; and

(2) by striking `information relating to a substantial violation of law
related to a contract (including the competition for or negotiation of a
contract)' and inserting `information that the employee reasonably believes
is evidence of gross mismanagement of a Department of Defense contract or
grant, a gross waste of Department of Defense funds, a substantial and
specific danger to public health or safety, or a violation of law related to
a Department of Defense contract (including the competition for or
negotiation of a contract) or grant'.

(b) Clarification of Inspector General Determination- Subsection (b) of such
section is amended--

(1) by inserting `(1)' after `Investigation of Complaints- ';

(2) by striking `an agency' and inserting `the Department of Defense, or the
Inspector General of the National Aeronautics and Space Administration in
the case of a complaint regarding the National Aeronautics and Space
Administration'; and

(3) by adding at the end the following new paragraph:

`(2)(A) Except as provided under subparagraph (B), the Inspector General
shall make a determination that a complaint is frivolous or submit a report
under paragraph (1) within 180 days after receiving the complaint.

`(B) If the Inspector General is unable to complete an investigation in time
to submit a report within the 180-day period specified in subparagraph (A)
and the person submitting the complaint agrees to an extension of time, the
Inspector General shall submit a report under paragraph (1) within such
additional period of time as shall be agreed upon between the Inspector
General and the person submitting the complaint.'.

(c) Acceleration of Schedule for Denying Relief or Providing Remedy-
Subsection (c) of such section is amended--

(1) in paragraph (1), by striking `If the head of the agency determines that
a contractor has subjected a person to a reprisal prohibited by subsection
(a), the head of the agency may' and inserting after `(1)' the following:
`Not later than 30 days after receiving an Inspector General report pursuant
to subsection (b), the head of the agency concerned shall determine whether
there is sufficient basis to conclude that the contractor concerned has
subjected the complainant to a reprisal prohibited by subsection (a) and
shall either issue an order denying relief or shall';

(2) by redesignating paragraphs (2) and (3) as paragraphs (4) and (5),
respectively; and

(3) by inserting after paragraph (1) the following new paragraphs:

`(2) If the head of an executive agency issues an order denying relief under
paragraph (1) or has not issued an order within 210 days after the
submission of a complaint under subsection (b), or in the case of an
extension of time under paragraph (b)(2)(B), not later than 30 days after
the expiration of the extension of time, and there is no showing that such
delay is due to the bad faith of the complainant, the complainant shall be
deemed to have exhausted all administrative remedies with respect to the
complaint, and the complainant may bring a de novo action at law or equity
against the contractor to seek compensatory damages and other relief
available under this section in the appropriate district court of the United
States, which shall have jurisdiction over such an action without regard to
the amount in controversy. Such an action shall, at the request of either
party to the action, be tried by the court with a jury.

`(3) An Inspector General determination and an agency head order denying
relief under paragraph (2) shall be admissible in evidence in any de novo
action at law or equity brought pursuant to this subsection.'.

(d) Definitions- Subsection (e) of such section is amended--

(1) in paragraph (4), by inserting `or a grant' after `a contract'; and

(2) by inserting before the period at the end the following: `and any
Inspector General that receives funding from, or has oversight over
contracts awarded for or on behalf of, the Secretary of Defense'.

------
Here is the law that section 846 amends:

10 USC § 2409

Sec. 2409. Contractor employees: protection from reprisal for
disclosure of certain information

(a) Prohibition of Reprisals.--An employee of a contractor may not
be discharged, demoted, or otherwise discriminated against as a reprisal
for disclosing to a Member of Congress or an authorized official of an
agency or the Department of Justice information relating to a
substantial violation of law related to a contract (including the
competition for or negotiation of a contract).
(b) Investigation of Complaints.--A person who believes that the
person has been subjected to a reprisal prohibited by subsection (a) may
submit a complaint to the Inspector General of an agency. Unless the
Inspector General determines that the complaint is frivolous, the
Inspector General shall investigate the complaint and, upon completion
of such investigation, submit a report of the findings of the
investigation to the person, the contractor concerned, and the head of
the agency.
(c) Remedy and Enforcement Authority.--(1) If the head of the agency
determines that a contractor has subjected a person to a reprisal
prohibited by subsection (a), the head of the agency may take one or
more of the following actions:
(A) Order the contractor to take affirmative action to abate the
reprisal.
(B) Order the contractor to reinstate the person to the position
that the person held before the reprisal, together with the
compensation (including back pay), employment benefits, and other
terms and conditions of employment that would apply to the person in
that position if the reprisal had not been taken.
(C) Order the contractor to pay the complainant an amount equal
to the aggregate amount of all costs and expenses (including
attorneys' fees and expert witnesses' fees) that were reasonably
incurred by the complainant for, or in connection with, bringing the
complaint regarding the reprisal, as determined by the head of the
agency.

(2) Whenever a person fails to comply with an order issued under
paragraph (1), the head of the agency shall file an action for
enforcement of such order in the United States district court for a
district in which the reprisal was found to have occurred. In any action
brought under this paragraph, the court may grant appropriate relief,
including injunctive relief and compensatory and exemplary damages.
(3) Any person adversely affected or aggrieved by an order issued
under paragraph (1) may obtain review of the order's conformance with
this subsection, and any regulations issued to carry out this section,
in the United States court of appeals for a circuit in which the
reprisal is alleged in the order to have occurred. No petition seeking
such review may be filed more than 60 days after issuance of the order
by the head of the agency. Review shall conform to chapter 7 of title 5.
(d) Construction.--Nothing in this section may be construed to
authorize the discharge of, demotion of, or discrimination against an
employee for a disclosure other than a disclosure protected by
subsection (a) or to modify or derogate from a right or remedy otherwise
available to the employee.
(e) Definitions.--In this section:
(1) The term ``agency'' means an agency named in section 2303 of
this title.
(2) The term ``head of an agency'' has the meaning provided by
section 2302(1) of this title.
(3) The term ``contract'' means a contract awarded by the head
of an agency.
(4) The term ``contractor'' means a person awarded a contract
with an agency.
(5) The term ``Inspector General'' means an Inspector General
appointed under the Inspector General Act of 1978.

(Added Pub. L. 99-500, Sec. 101(c) [title X, Sec. 942(a)(1)], Oct. 18,
1986, 100 Stat. 1783-82, 1783-162, and Pub. L. 99-591, Sec. 101(c)
[title X, Sec. 942(a)(1)], Oct. 30, 1986, 100 Stat. 3341-82, 3341-162;
Pub. L. 99-661, div. A, title IX, formerly title IV, Sec. 942(a)(1),
Nov. 14, 1986, 100 Stat. 3942, renumbered title IX, Pub. L. 100-26,
Sec. 3(5), Apr. 21, 1987, 101 Stat. 273; amended Pub. L. 102-25, title
VII, Sec. 701(k)(1), Apr. 6, 1991, 105 Stat. 116; Pub. L. 102-484, div.
A, title X, Sec. 1052(30)(A), Oct. 23, 1992, 106 Stat. 2500; Pub. L.
103-355, title VI, Sec. 6005(a), Oct. 13, 1994, 108 Stat. 3364; Pub. L.
104-106, div. D, title XLIII, Sec. 4321(a)(10), Feb. 10, 1996, 110 Stat.
671.)
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Senator Grassley, Others File Briefs in Supreme Court Whistleblower Case

Posted on January 23, 2008 by Marshall Chriswell

Briefs were filed yesterday in the Supreme Court case Allison Engine Co., Inc. v. United States ex rel. Sanders (Docket no. 07-214). This case will decide whether corporations and individuals who receive government contracts are legally required by the False Claims Act to "present" their claim for payment to a government agency, or if they can evade liability under the FCA by routing these claims through a surrogate, such as a subcontractor.


The Petitioners' and Respondents' briefs were filed yesterday, as well as Amicus briefs, including for the Respondents Amicus Curiae briefs from Senator Grassley and Taxpayers Against Fraud. (Thanks to TAF for these briefs).


View the National Whistleblower Press Release on this issue here

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New FOIA Law Contains Long Overdue Improvements

Posted on January 4, 2008 by David Colapinto


President Bush has signed into law the first legislation in more than a decade to strengthen the Freedom of Information Act. The Open Government Act of 2007, signed by Bush on New Years eve, contains several important changes and improvements to the Freedom of Information Act.


The new law establishes enforceable deadlines for agencies to process FOIA requests; extends FOIA's reach to certain records maintained by government contractors; establishes an ombudsman to resolve disputes; creates a FOIA tracking system; restores provisions for recovery of attorneys fees by FOIA litigants who successfully prevail in court, including cases where there is a voluntary or unilateral change in the government's position after filing of the lawsuit, so long as the FOIA requester's claim is not insubstantial; and requires that any award of attorneys fees be paid out of an agency's budget and not the Treasury Department's judgment fund.


Legislative improvements to FOIA were long overdue and the Open Government Act of 2007 is intended to speed up citizen access to government information. The Freedom of Information Act is an essential tool to assist whistleblowers, journalists, citizens and watchdog groups discover what their government is up to and provide outside oversight of government activities.


A copy of the Open Government Act of 2007 is linked here

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IRS Seeking Public Comment for Whistleblower Regulations

Posted on December 28, 2007 by Marshall Chriswell

 

For all those interested, the IRS has issued new guidance for claimants under the IRS whistleblower law. They are seeking public comment on the proposed regulations.

See the IRS' proposed rules here.

As stated in section 4 of the document, public comments will be accepted by mail or electronically at Notice.comments@irscounsel.treas.gov.

 

Jason Zuckerman of the Employment Law Group blogs this issue here 

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New York Times Editorial Supports Strong Whistleblower Law

Posted on December 27, 2007 by Marshall Chriswell

The op-ed page of the New York Times contained an editorial today about the passage of S.274, the Senate whistleblower protection legislation (we blogged it here) , and the need for a strong bill to come out of conference. Check it out:


"Protection for Endangered Whistleblowers"
PDF Version

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Senate Passes S.274, A Whistleblower Protection Law for Federal Employees

Posted on December 18, 2007 by Marshall Chriswell

 

Late last night, the U.S. Senate finally got the job done, unanimously passing S.274, the Federal Employee Protection of Disclosures Act. This law, along with its companion house legislation (H.R.985), if preserved in conference, would go a long way towards protecting every single federal whistleblower and federal government contractor from retaliation when they report illegal activity to their supervisor. This legislation will effectively overturn the terrible Supreme Court Decision in Garcetti v. Ceballos, which held that government employees are not protected by the First Amendment when they report concerns at work.

More on this issue to come...

Below is the text of today's National Whistleblower Center Press release:

 

Washington, DC., December 18, 2007. Last evening the U.S. Senate, by unanimous consent, passed the Federal Employee Protection of Disclosures Act (S.274). This law enhances the protection for federal employee whistleblowers by expanding the scope of protected activity to cover complaints within an employees chain of command.

Passage of S.274 now sets the stage for a conference between the House and Senate to agree final legislative language. On March 14, 2007 the House enacted the Whistleblower Protection Enhancement Act (H.R. 985), which expanded the scope of whistleblower protections to national security related agencies, permitted employees to obtain jury trials in federal court, provided enhanced protections for federal contractors and protected employees who exposed misconduct to their managers.

“The House and Senate whistleblower protections laws complement each other. They need to be melded together in conference and immediately enacted into law. Only by combining the best of both bills will federal employees obtain realistic protection. Until then, the taxpayers and citizens will remain the losers in this debate, as billions of dollars in waste remains unreported and government officials who violate the law and mislead the American people escape accountability,” said Stephen M. Kohn, the President of the National Whistleblower Center.

“The Senate Action now sets the stage for the final passage of what will be one of the most important laws enacted by this Congress,” added Kohn.

The House and Senate bills were strongly endorsed by a broad coalition of public groups, including the National Whistleblower Center, the Project on Government Oversight, the Government Accountability Project and Taxpayers Against Fraud, the No Fear Coalition, the Make it Safe Coalition, the Liberty Coalition, and the Bill of Rights Foundation, among numerous others.

-end-

 

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Will Congress Pass Whistleblower Protections Before the Next Disaster?

Posted on November 15, 2007 by Stephen Kohn

 

I call it the two crash rule: It takes two disasters for Congress to protect whistleblowers.


For example, for years airline pilots pleaded for Congress to enact modest protections for airline employees who exposed safety concerns. Year in and year out legislation was introduced, but stalled or was ignored. Then, in 2000, two Alaskan Airlines jets crashed. Only after two plane crashes were the whistleblower protections enacted. The same story holds true for almost every other federal whistleblower law. Disasters prompted action – but in each case the legislative response was limited to fixing the crisis at hand.


How many more disasters are needed to provide real whistleblower protection for all American workers? How many more billions lost in various schemes (such as the home mortgage fiasco)? How many tainted products will be imported into America? How many more taxpayer dollars will be wasted or swindled by contractors in Iraq?


Since January, 2007 numerous whistleblower protection laws have been introduced into Congress. But since the Democratic takeover of Congress only one whistleblower protection proposal has actually passed. This law provides enhanced protections for truck and bus drivers who complain about safety risks.


Obviously, truck drivers need whistleblower protection, but what about the tens of millions of employees who remain completely unprotected?


Congress needs to enact a comprehensive national whistleblower protection law, a law which will provide all legitimate whistleblowers with adequate legal protections.


Below is the list of whistleblower protection laws are currently pending in Congress. They all deserve our support. But why has no member of Congress introduced a national whistleblower protection act, which would protect all honest employees who expose violations of law or threats to the public safety? Why are most whistleblowers still without any adequate protection under federal law? When will Congress finally act?


Here is a list of the major whistleblower protection proposals introduced into Congress since January, 2007. As of today, none of these laws have passed:

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