John Solomon, writing in the Washington Guardian, is reporting today that B. Todd Jones, the Acting Director of the Bureau of Alcohol, Tobacco, Firearms and Explosives (ATF), released a video last week to all employees. In the video, Jones warns that there would be “consequences” for any employees who report wrongdoing outside their chain of command. Jones was a federal prosecutor when Attorney General Eric Holder asked him to lead the embattled agency after the Fast and Furious scandal. He is supposed to improve morale and instill a new culture in the aftermath of that scandal. Jones’ precise words are:
Choices and consequences means simply that if you make poor choices, that if you don’t abide by the rules, that if you don’t respect the chain of command, if you don’t find the appropriate way to raise your concerns to your leadership, there will be consequences.
Sen. Charles Grassley told Sinclair Broadcast that this video, “ought to be a wake up signal for everybody in Congress who wants to do their job of constitutional oversight. *** It is outrageous that a leader of a major organization of any department, particularly law enforcement, would have the temerity to make those sort of comments."
“This video will cause a chilling effect,” said Stephen M. Kohn, the Executive Director of the National Whistleblower Center. “There are many cases that say whistleblowers can ignore the chain of command. In fact, under the Whistleblower Protection Act [WPA], you may lose protection if you only report to your first line supervisor, and going outside chain is a way to get protection,” Kohn told Solomon. “Also, the WPA says that ‘any disclosure’ is protected, not just disclosures made in the ‘appropriate way.’" Kohn is referring to the problemmatic decision of the Federal Circuit Court of Appeals, Willis v. Department of Agriculture, 141 F.3d 1139, 1144 (Fed. Cir. 1998) which held that a disclosure made as part of an employee’s normal job duties is not protected. However, disclosures to outside agencies or members of Congress avoid this exception to WPA coverage. See Whitmore v. Dep’t of Labor, 680 F.3d 1353, 1368 (Fed. Cir. 2012).
Solomon notes that the video is an apparent swipe at "Arizona agents who went outside the agency in 2011 and reported concerns to Congress about the bungled Fast and Furious gun probe that let semiautomatic weapons flow to Mexican drug gangs." Regardless of how one feels about the congressional response to Fast and Furious, we can hopefully all agree that the Arizona agents served the public interest by raising their concerns. Well, maybe all of us except Mr. Jones.
For reference, it is well established that management attempts to impose a chain-of-command rule on whistleblowing are unlawful.The U.S. Department of Labor has said so in these cases: Levelle v. New York Air National Guard, 94-TSC-3/4, D&O of Remand by SOL, at 16-17 (December 11, 1995); West v. Systems Applications International, 94-CAA-15, D&O of Remand by SOL, at 7 (April 19, 1995); Dutkiewicz v. Clean Harbors Environmental Services, 95-STA-34, D&O of ARB, at 7 (August 8, 1997), aff’d, Clean Harbors Environmental Services v. Herman, 146 F.3d 12 (1st Cir. 1998). See also, Brockell v. Norton, 732 F.2d 664, 668 (8th Cir. 1984).
The whole point of having is whistleblower protection is to encourage employees to raise their concerns to the channels that could do something about the violation at issue. If an employer could impose a chain of command rule, then the employer could stop all effective whistleblowing and continue with the misconduct. We have whistleblower protections in place so that employees can serve the public interest and go outside of the chain of command. Hopefully, they will call the wrongdoers to account and get a violation to stop.
It is ironic that law enforcement agencies have such a long tradition of enforcing a chain of command to stifle concerns about misconduct. The tradition is nothing less than a code of silence. The consequences of this code are painfully obvious to anyone who has seen Serpico. If Fast and Furious will teach us anything, it should be that encouraging employees to raise their concerns early and often will help stop miscarriages of justice from growing into national scandals.
UPDATE: On July 26, 2012, AFT Acting Director B. Todd Jones "clarified" his remarks. After Rep. Darrell Issa, R-Calif, and Sen. Charles Grassley, R-Iowa, obtained Jones’ original video they sent Jones a letter objecting to the video’s "ominous" message that could be construed as a "threat" and have a "chilling effect" on AFT agents who have information about misconduct. Thereafter, Jones sent a written message to AFT agents through AFT’s internal system. This message acknowledges that whistleblower disclosures can be made outside the "chain of command" and still be protected. In a separate letter to the legislators, Jones claimed that "at no time" was he "attempting to discourage, dissuade or prevent employees from" becoming whistle-blowers. This information came to us through a report by Mike Levine of Fox News. Jones’ latest claim would be more credible if he acknowledges that his original video message was attempting to prevent disclosures outside the chain of command, but he had learned an important lesson about whistleblower protections. Instead, he is trying to deny that his original message ever sought a chilling effect on outside disclosures, leaving the rest of us to wonder if he has learned anything at all.