Part of the “Quick Peek” Series, exploring the NEW edition of Stephen Kohn‘s Whistleblower’s Handbook.   

Whistleblowing is the foundation of democracy. “The roots of whistleblowing can be found deep in the American dream,” declares Stephen Kohn, Executive Director of the National Whistleblower Center. One might think this a bold assertion, but the first recorded instance of whistleblowing happened even before our nation had written a constitution. Even without explicit first amendment protections in the newly independent United States, whistleblowers were backed and protected by members of Congress, viewed as patriots serving their country.

Continue Reading The Final Rule: Remember July 30th 1778

New intelligence community whistleblower protections lacking

On July 7, 2014, President Obama signed the “Intelligence Authorization Act for Fiscal Year 2014.” This bill includes a section providing “Protection Of Intelligence Community Whistleblowers.” These protections specify that employees who divulge information about possible misconduct within their agencies to their Inspectors General or other designated intelligence offices will be protected.

Stephen M. Kohn, Executive Director of the National Whistleblowers Center released a statement urging intelligence agency whistleblowers to use these new protections with caution:

 “The whistleblower provisions passed in the Intelligence Authorization Act are a very small step forward. They are weak and essentially unenforceable. The provisions empower the President to exercise his discretion in determining the procedures to protect whistleblowers.  None of the protections mandated by the Whistleblower Protection Act (which covers other federal employees) are included. There is no provision permitting discovery or hearings, let along judicial review. The law does not ensure due process or even stipulate the remedies for which whistleblowers would be entitled if they were to miraculously prevail in a case.  The law does not provide for attorney fees to be paid to prevailing whistleblowers, who could go broke just trying to report fraud in government programs.”

 “Due to the lack of procedural protections, the law could easily morph into a bureaucratic trap leaving whistleblowers vulnerable and unemployed.  The law needs to be amended to have some teeth. In the meantime, we advise whistleblowers to use these new provisions with extreme caution, if at all.”

 It should also be noted that the new provisions do not cover intelligence agency contractors.

Washington, D.C.  June 27, 2014. Today the D.C. Circuit court issued a decision in the case of In re: Kellogg Brown & Root, Inc., et al., finding certain reports produced during internal corporate investigations were covered under the attorney-client privilege even though the documents show employees believed there was contracting fraud taking place during the Iraq War.  The Court granted a “writ of mandamus” and reversed the lower court’s ruling that had ordered KBR’s internal review of the fraud allegations to be produced in a False Claims Act case.

The underlying case concerns a whistleblower complaint filed by a former KBR employee,  Mr. Harry Barko, on behalf of U.S. taxpayers seeking damages for KBR falsely charging the government for illegal contracting practices during the War in Iraq.  The documents in question concerned an in-house review of allegations raised by employees who observed improper contracting practices and reported fraud to KBR’s investigators.  The lower court, which had ordered the release of the documents, also ruled that these documents in question were “eye openers” and supported Mr. Barko’s claims that taxpayers were overcharged by KBR.

Mr. Stephen M. Kohn, one of Mr. Barko’s attorneys, issued the following statement:

Mr. Barko will file an appeal of this decision. The court incorrectly issued a writ of mandamus upholding KBR’s claim of privilege.  The documents at issue demonstrate illegal contracting practices and should not be kept secret from the public.  KBR obtained billions of dollars in government contracts to support the Iraq War effort.  The lower court, which reviewed the documents prior to issuing its decision, correctly held that these materials were not covered under the attorney client privilege.

We are confident that upon further appeal the position argued by KBR will be reversed. Continue Reading Three Judge Panel of the D.C. Circuit Court of Appeals Shields Evidence of KBR Contracting Fraud In Iraq War Under Attorney-Client Privilege

FBI Crime Lab Whistleblower Featured on “The System with Joe Berlinger”

Washington, D.C.  May 29, 2014. This Sunday, June 1, Dr. Frederic Whitehurst will be featured on “The System with Joe Berlinger.” Dr. Whitehurst appears in the third episode of this multi-part documentary series that explores the state of our justice system. This episode is entitled “Flawed Forensics.”

Episode 3: Flawed ForensicsPremieres Sunday June 1st at 9E/6PNearly 20 years later, the fates of two men are still entangled in the FBI’s faulty hair analysis from all those years ago. Both men were found guilty of multiple murders and now one is on the outside, recently released and waiting for a retrial, while the other is still on death row, hoping the State will allow him the DNA test he needs to keep him alive.Check the schedule for local times and repeat airings

The interview follows up on whistleblower allegations first raised by Dr. Whitehurst in the 1990’s and confirmed by the Department of Justice Inspector General in 1998. Continue Reading FBI Crime Lab Whistleblower Featured on “The System with Joe Berlinger”

Today, Rep. Elijah E. Cummings, Ranking Member of the House Committee on Oversight and Government Reform, and Rep. John F. Tierney, Ranking Member of the Subcommittee on National Security, sent a letter to the CEO of KBR, one of the nation’s largest government contractors, requesting documents relating to the company’s treatment of potential whistleblowers seeking to report wrongdoing at the company.

The Congressional inquiry was triggered by a February Washington Post story revealing that KBR required employees to sign confidentiality agreements. These agreements barred employees who witnessed fraud from speaking to “ANYONE” outside of the company about their allegations without “specific authorization” from the company’s general counsel.

In the letter sent to KBR the Congressmen wrote: “The use of these confidentiality agreements could raise significant concerns if employees of federal contractors are being prohibited from disclosing allegations of waste, fraud, or abuse to government agencies, Congress, or Inspectors General. Obviously, requiring employees to clear such reports through KBR’s general counsel’s office before reporting them to the government would defeat the purpose of good government laws and whistleblower protections enacted by Congress.”

The Congressmen have requested KBR provide copies of all complaints submitted to KBR from its employees, subcontractors, or any other individuals from 2002 to present; copies of all confidentiality agreements restricting employees in any way from reporting allegations of waste, fraud, or abuse; and all policies and procedures relating to the use, application, enforcement, or waiver of confidentiality agreements in relation to internal complaints, tips, and investigations.

Stephen M. Kohn, Executive Director of the National Whistleblower Center stated “The KBR non disclosure agreements have unquestionably interfered with the ability of Congress to conduct its Constitutional oversight responsibilities. KBR received over $40 billion in taxpayer money. It is incumbent upon Congress, in a bipartisan manner, to insure every penny paid by the honest taxpayers was properly spent and to insure contractors cannot take government money with one hand and silence whistleblowers with the other.”

Related items:

Previous Post on this issue:

Action Alert:

NWC calls for full and complete investigation into wrongdoing and full protection for whistleblowers

Washington, D.C.  February 25, 2014.  The Permanent Subcommittee On Investigations will hold a hearing on “Offshore Tax Evasion” on Wednesday, February 26, 2014, at 9:30AM, in Room G-50 of the Dirksen Senate Office Building. More information can be found on the Subcommittee’s website.

The hearing will continue the Subcommittee’s examination of tax haven bank facilitation of U.S. tax evasion, focusing on the status of efforts to hold Swiss banks and their U.S. clients accountable for unpaid taxes on billions of dollars in hidden assets. Witnesses will include representatives from a Swiss bank and the U.S. Department of Justice.

Today the National Whistleblower Center released a letter to the members of the Subcommittee requesting that they ask specific questions to the DOJ and Swiss banking officials to ensure that those responsible for the illegal off shore activities, which have cost the U.S. taxpayers millions of dollars, are held accountable.

The NWC also requested the DOJ, on the recorded, affirm it’s commitment to the protection of whistleblowers and to ensure those give information on Swiss banking do not suffer retaliation either in the U.S. or Switzerland.

“DOJ needs to dance with the one that brought them – and in the case of offshore banking its whistleblowers that brought DOJ to the Zurich tax-cheat hoedown,” said Dean Zerbe, Special Counsel for the National Whistleblower Center.  “Unfortunately, too often it appears the federal government isn’t taking full advantage of the information provided by whistleblowers.  In addition, the administration is proposing regulations to the IRS whistleblower law that go against Congressional intent and will discourage new whistleblowers from coming forward.  The Swiss bankers and the tax cheats are going to be the winners if these Treasury regulations are made final,” Zerbe added

“Whistleblowers have provided the DOJ a roadmap to offshore banking.  It is imperative that DOJ squeeze every drop of information from whistleblowers so that they get all the billions of tax dollars that are due and owing.  Just as important, the DOJ and the federal government need to do everything in their power to ensure the protection of whistleblowers.  Protecting and encouraging whistleblowers is the key to success today and tomorrow for the federal government going after illegal offshore accounts,” said Stephen M. Kohn, Executive Director of the National Whistleblower Center.

Both Mr. Zerbe and Mr. Kohn successfully represented Bradley Birkenfeld before the IRS, and were able to ensure that he obtained his whistleblower reward, despite the mis-steps by DOJ.

See a copy of the NWC’s letter to the Subcommittee here.

The Seattle City Council, in collaboration with the Seattle Ethics and Elections Commission (SEEC), significantly expanded the City’s Whistleblower Protection Code. The changes went into effect on January 16, 2014.

The revised code grants employees protection from retaliation for reporting allegations of wrongdoing to their supervisors or chain of command.  The new ordinance also requires the SEEC to train every city department on how to cultivate a culture of support.

Major changes to the Code include:

  • Employees who report wrongdoing to their supervisor or other person in their chain of command will now be protected from retaliation.
  • The SEEC will now investigate allegations of retaliation.
  • If reasonable cause is found that retaliatory actions have occurred, options to address the harm of retaliation are expanded.
  • Both the institutional effects of retaliation, such as demotion and transfers, and retaliatory acts by individuals can be addressed and sanctioned.

Click this link for information about how to make a report to the SEEC under the Expanded Whistleblower Protection Code.

The text of the Expanded Whistleblower Protection Code can be found here.

The National Whistleblowers Center Speakers Bureau provides a wide range of qualified and experienced presenters for conventions, conferences, seminars, workshops, and educational events throughout the United States.

Our speakers are the leading experts in their fields. We pride ourselves on providing you with a team of accomplished leaders, authors, and advocates with strong track records of achievement and vision in the spheres of government and corporate accountability. Our speakers have inspired and informed countless groups of people with the message that every employee is entitled to speak out about wrongdoing in the workplace without fear of retaliation.

For more information visit the NWC Speakers Bureau page.