Government Whistleblowers

The Whistleblowers series returns to CBS tonight, Friday, with its true crime, network news take on “people who put everything on the line to stop illegal and often dangerous wrongdoing when major corporations or individuals rip off the government and U.S. taxpayers.”

The season premiere tells the story of police corruption and Shannon Spalding,

By Maya Efrati

After nearly a year of research and review, the U.S. Government Accountability Office (“GAO”) has released a report outlining best practices for how Congressional staff should appropriately handle information from whistleblowers. Titled “Key Practices for Congress to Consider When Receiving and Referring Information,” the report focuses on what happens when federal whistleblowers reach out to their representatives in Congress, whether in the House or Senate, for help. The GAO produced the report on the request of the House of Representatives’ Committee on Appropriations, Subcommittee on the Legislative Branch.

One of the ways that Congress is able to fulfill its mandate for oversight of the federal government is through receiving and acting on whistleblower information. The GAO report notes that, “[w]hile data is not available on the number of whistleblower disclosures across Congress, a staff member at one congressional office said the office can receive hundreds of whistleblower disclosures every year.” Yet too often, those whistleblowers are retaliated against for bravely speaking up about waste, fraud, and abuse. Compounding the problem, the GAO report demonstrated some existing deficiencies in the process for whistleblowers to disclose their information.

Maya Efrati head shot
Maya Efrati

Crucially, the GAO noted the importance of maintaining the confidentiality of whistleblowers who come forward with information to Congress. Key practices highlighted in the report include that Congress should “Develop… [p]rotocols to keep disclosures secure and protected, while appropriately limiting access to information on a need-to-know basis.”

This includes not only handling of sensitive or classified information provided by the whistleblower, but also  the whistleblower’s own personally identifiable information, which is any details that could allow someone to trace that person’s identity. Whistleblowers often risk their careers and more when speaking up about what they know; no whistleblower should be placed in an even more precarious situation because Congress lacks appropriate processes and guidelines to help them.


Continue Reading

From ProPublica,  an independent, nonprofit investigative newsroom.

By Isaac Arnsdorf

President Donald Trump often touts a law he signed to speed up firings at the Department of Veterans Affairs. He and other Republicans see the law as a model for weakening civil service protections across the federal government.

The administration’s case for the new law centered on Brian Hawkins. Hawkins was the director of the VA hospital in Washington when an internal investigation discovered safety risks for patients. The VA tried to fire Hawkins but got held up on appeal. Then-Secretary David Shulkin said Hawkins showed why “we need new accountability legislation and we need that now.” Once Congress passed the legislation, the VA used it to go after Hawkins a second time.

Now, almost two years later, the VA’s case against Hawkins has fallen apart. On Tuesday, the government said it would give Hawkins his job back rather than defend the statute in court.

While the administration tried to make Hawkins into a symbol of why it needed the legislation, court records tell a different story: of Trump appointees so eager to score political points that they ran roughshod over legal protections for civil servants.

“They couldn’t defend their actions in court,” Hawkins said in an interview. “The VA took away my rights, I had no say, my 25-year career was gone. It violated everything I tried to teach my family and tried to believe in myself: this country was founded on a Constitution, the Bill of Rights, equal opportunity for all.”

Hawkins argued that his firing was unconstitutional because the VA used a standard of proof that was too low. Since the government opted not to contest that claim, it could have repercussions for thousands of other VA employees who were fired under the accountability law, according to Jason Briefel, the executive director of the Senior Executives Association, which lobbies for high-ranking career officials.

“The passage of this law was a signature achievement for the president and many members of Congress,” said Briefel, who also works for the law firm that represented Hawkins. “If they were wrong and this was indeed unconstitutional, now they’re going to have to go figure out what to do with thousands of folks fired under this authority.”

VA spokesman Curt Cashour said the agency “has complete confidence” in the law but declined to comment on the Hawkins case. A White House spokesman didn’t respond to a request for comment.

House veterans committee chairman Mark Takano, a California Democrat, said he would hold hearings this summer to examine the VA’s implementation of the accountability law.

“This is another example of how VA has misconstrued and unfairly applied legislation once lauded as the Administration’s preferred method to root out corruption,” Takano said in a statement. “Instead of weeding out troubled leadership and incompetent supervisors, this law has been exploited and misused to target whistleblowers and employees.”

According to the government’s court filing, Hawkins will get back pay, but the VA could try to fire him again. The government now wants the judge to throw out Hawkins’ case as moot.

Many of the details in the litigation have been sealed for more than a year because the government considers the information protected by attorney-client privilege. But ProPublica uncovered the information from other documents and people involved.

Hawkins, 50, started working at the VA in 1992 cutting grass. He worked his way up through the ranks and in 2011 became director of the Washington hospital, overseeing a staff of 2,000 at the 200-bed facility three miles north of the Capitol. Under Hawkins’ charge, the hospital struggled with stocking medical supplies and filling leadership positions. In early 2017, Hawkins found out about problems in the logistics department and reported his concerns to the VA’s inspector general.

The inspector general’s office found dirty storage areas and supply shortages that were endangering patients. The inspector general’s report didn’t name Hawkins but suggested that even higher-ranking officials in the VA health system were aware the problems and had failed to fix them.

Shulkin was under pressure from Trump. As a candidate, Trump had campaigned on cracking down on errant VA employees, a rallying cry for conservative critics of the government-run health system. “You just need to start firing people,” Trump told Shulkin at a spring 2017 meeting with veterans groups, as reported in The Wall Street Journal. “Let them sue us. I don’t care if they sue us.”

The VA could have taken action against Hawkins based on the problems at the hospital he ran, but that would have required an investigation — and time. The Trump administration didn’t want to wait. Political appointees said they wanted to fire Hawkins “for any reason we can find,” according to a June 2017 email sent by Scott Foster, a senior official overseeing the staff responsible for investigating VA executives. According to the email, the staff investigators responded that there was “insufficient evidence.” (Foster declined to discuss personnel matters, citing privacy rules, but he agreed to tell his story.)

“We are setting ourselves up for slam-dunk due process fouls,” Foster said in the email, sent to his boss and the VA’s top lawyer. “We will lose this case on appeal, and in a very embarrassing way.”

The VA fired Hawkins anyway.

That same day, Foster was on a conference call where his boss, a political appointee named Peter O’Rourke, said he wanted 10 to 15 people who could be fired as soon as Trump signed the new accountability law, according to notes that Foster recorded later that month. Foster cautioned that the VA would still need to follow the legal process and act on evidence.

O’Rourke responded by moving to fire Foster. The stated reason, according to the written notice that O’Rourke gave to Foster, was that Foster had voiced concerns about the legality of how the agency was firing civil servants.

Foster knew that the law protected him from such explicit retaliation, but he wasn’t sure if that would matter.

“I was wondering if I was going to be caught up in a time in our country’s history when the people who ran the government did not necessarily feel compelled to follow the law,” Foster said.

O’Rourke, who later served as acting secretary and left the agency late last year, didn’t respond to phone messages.

Foster filed a complaint with the Office of Special Counsel, or OSC, an independent federal agency that investigates retaliation against whistleblowers. OSC blocked the VA from firing Foster.

OSC also received a complaint from Michael Culpepper, another senior official overseeing investigations of VA executives. Culpepper “witnessed VA leadership violate norms in seeking to terminate several senior level employees,” according to his lawyer, Mark Zaid. Culpepper became a whistleblower and suffered retaliation, Zaid said. Culpepper resigned in May 2017.

Based on the complaints from Foster and Culpepper, OSC moved to halt Hawkins’ removal. An administrative judge agreed to pause the firing for 45 days so that OSC could investigate further.

Shulkin seethed at the intervention. “No judge who has never run a hospital and never cared for our nation’s veterans will force me to put an employee back in a position when he allowed the facility to pose potential safety risks to our veterans,” he said in a press release.

Shulkin, who was forced out in March 2018, didn’t respond to a request for comment.

Rather than honor the 45-day pause, the VA said it would deploy the new accountability law that Trump had just signed. A Wall Street Journal editorial headlined “Can the VA Fire Anyone?” called the Hawkins case a critical test for the law’s powers. The order firing Hawkins was signed by Assistant Secretary for Congressional and Legislative Affairs Brooks Tucker, a political appointee who is outside the hospital system’s chain of command.

“The media circus that the secretary went on really made me feel less than human,” Hawkins said. “My children were laughed at and questioned by their friends. My neighbors stopped speaking to my family. It was a struggle to leave my home. I gained 30 pounds. I developed hypertension. I’ve been in counseling for stress and depression. I was unsure of how was going to provide for my family.”

Hawkins maintains that the Washington hospital had been on the upswing during his six-year tenure. When the inspector general’s office completed its review, it said Hawkins provided “ineffective leadership” but also faulted others above and below him. (A separate investigation found that Hawkins broke agency policy by sending sensitive information to a personal email account.)

Conditions at the hospital got worse after Hawkins left. The facility was designated “critical” last year and now ranks among the worst-performing hospitals in the entire VA system. The inventory problems still weren’t fixed — inspections found that some procedures had to be canceled because the hospital ran out of needed equipment.

“You’re using civil servants as political pawns to say, ‘OK, I fired them, therefore the problem is better,’ but a year or two years later, the logistics problem is still an issue,” Hawkins said. “It kills the efficiency of the organization, and then the ‘big bad VA doing bad things for veterans’ becomes a self-fulfilling prophecy.”

Cashour, the VA spokesman, said the Washington hospital is making “significant improvements” such as reducing wait times, hiring nurses and referring more patients to private providers. The latter was another Trump campaign promise.


Continue Reading

In the course of her research into fraud and white-collar crime, Kelly Richmond Pope comes across a lot of whistleblower stories.  The DePaul University accountant and business professor said she couldn’t understand why they were treated so poorly. So, she did a TED talk about it. Now she knows even more stories. Pope talked to the Whistleblower Protection Blog in May.  A forensic accountant, she’s has experience in insurance fraud investigations and fraud risk management projects. TR

Kelly Richmond Pope

 Q. What cases are you following?

It seems like there is a new story every day.  Behind every fraud story which is my area of research, there is a whistleblower.  What you may call a whistleblower case, I may call a fraud case If we are hearing about it in the news that means someone somewhere told something. Behind every fraud story there is a whistleblower.

Q. You talked about how whistle blower are looked at as tattle-tales, not as heroes. Do you think people still have that attitude?

Absolutely. I think it is still going on. The whistle blower dilemma is about how we as a society treat these brave people. It is very hard to come up against the system. Right now, we are hearing more about the whistleblowers at Boeing. I would say 95 percent of the world is impacted by the airline industry. So, we want those people to come forward with information. We look at that has having a direct impact on our health and safety.
Continue Reading

It’s Time for Facebook to be Sanctioned for Misleading Shareholders and the Public About Terror and Hate Speech on its Website 

The Securities and Exchange Commission (SEC) now has all the information it needs to sanction Facebook for its dishonesty about terror and hate content on its website, thanks to a petition filed by a whistleblower working with the National Whistleblower Center (NWC).  Today, the Associated Press published an explosive story describing and confirming the key findings in the petition. 
Continue Reading

Four years after the Department of Justice (DOJ) agreed take steps to streamline the FBI whistleblower program, the agency has not taken action, according to a program review.

The Government Accountability Office issued recommendations in 2015 to make improvements like shortening the time it takes to process whistleblower complaints.

So far, the agency has not:
  • Clarified regulations
  • Given complainants timeframes for returning decisions
  • Developed an oversight mechanism to ensure compliance with requirements
  • Assessed the impact of efforts to reduce the duration of complaints or requirements


Continue Reading

A selection of this week’s whistleblower news, including a harrowing tale of a group of war crimes whistleblowers.
NAVY

Some of details of the case against Navy SEAL Edward Gallagher, as reported in The New York Times Tuesday, may sound familiar to many whistleblowers.  Here’s what reportedly occurred when Navy SEAL commandos reported their platoon chief had committed atrocities in Iraq.

(I)nstead of launching an investigation that day, the troop commander … warned the seven platoon members that speaking out could cost them and others their careers, according to the report.

 The Times story is based on a confidential Navy criminal investigation report obtained by the paper.

According to the investigation report, the troop commander, Lt. Cmdr. Robert Breisch, said in the meeting that while the SEALs were free to report the killings, the Navy might not look kindly on rank-and-file team members making allegations against a chief. Their careers could be sidetracked, he said, and their elite status revoked; referring to the eagle-and-trident badges worn by SEALs, he said the Navy “will pull your birds.”


Continue Reading

The General Office of Special Reviews of the Department of Veterans Affairs (VA) Office of the Inspector General is looking into activities at the VA Office of Accountability and Whistleblower Protection (OAWP). The Government Executive news site helps sort all that out.

VA Whistleblowers

And the Merit Systems Protection Board (MSPB), where federal workers seek redress from retribution, is basically shut down. The Washington Post has something to say about that.

Last week brought these two tales of dysfunction in the systems that are supposed to protect federal whistleblowers.

VA

The Government Executive offers a thorough report on an investigation into the OAWP, a program designed to protect whistleblowers. The office “is now facing allegations of aiding retaliation against them.”


Continue Reading

4/23 update:  The LA Times has dug into the California Air National Guard scandal.

Allegations of retaliation against whistleblowers in the California National Guard are more widespread than the complaints made at a Fresno air base that led to a dramatic leadership shakeup of the organization earlier this month, The Times has found.

The paper’s reporters found workers allege retaliation against whistleblowers and a failure of the Guard’s to protect them.

“When a person blows the whistle on wrongdoing, they face almost a guarantee of retaliation,” said Dwight Stirling, a reserve judge advocate who heads the Center for Law and Military Policy and alleges he was targeted for investigation after he reported possible misconduct five years ago. “It’s meant, as in all cases of retaliation, to send a message that if you hold the managers to account, if you bring to light their misconduct, that they’re going to make you pay for it.”

From 4/15: After Staff Sgt. Jennifer Pineda of the California Air National Guard reported finding her boots full of urine, she felt the investigation had turned into a cover-up.

From the LA Times on this military whistleblower case: 

In August 2015, Pineda filed a whistle-blower complaint. She wrote that the main investigator told her that the evidence showed that a woman could not have urinated in the boots, but that she heard that officers speculated that she urinated in them “for attention.” In the complaint, Pineda said that “makes me want this investigation to be complete and legit to prove that I did not do this to myself.” She added that she feared she could be forced to leave the guard.


Continue Reading

More whistleblowing in the halls of Congress and other news of the week. 

Rep. Elijah E. Cummings, chairman of the House Oversight Committee,  issued a statement this week in honor of the 30th anniversary of the Whistleblower Protection Act (WPA).

“We honor the contributions of the brave men and women who report wrongdoing despite great risks to their careers and personal lives as a result of retaliation.  Without the WPA, very few whistleblowers would be willing to come forward.  Congress relies on the WPA to fulfill its Constitutional duty to provide checks and balances on the Executive Branch—the very root of our democracy.”

He noted the role of whistleblowers in the Committee’s investigation into reports of White House efforts to transfer sensitive U.S. nuclear technology to Saudi Arabia.

The Atlantic reported last week that “small army of whistle-blowers from across the government has been working in secret with the House Oversight Committee to report alleged malfeasance inside the Trump administration. Lawmakers and aides are reluctant to discuss information they have gleaned from anonymous government tipsters in detail. But the list of whistle-blowers who either currently or previously worked in the Trump administration, or who worked closely with the administration, numbers in the ‘dozens’,” according to an aide to Cummings, a Maryland Democrat.

NPR also reported on the anniversary of the WPA.

ROBERT MACLEAN: Everybody in my neighborhood and my family thought I was insane and I was fighting a futile fight.

…That’s how it felt for Robert MacLean, a federal air marshal who, in 2003, told the public that the TSA canceled air marshal coverage on long-haul flights to cover budget shortfalls.


Continue Reading