Legal Briefs: Innocence pays

By Kellie Lunney and Brian Friel

May 19, 2000,

Every Friday on, Legal Briefs reviews cases that involve, or provide valuable lessons to, federal managers. We report on the decisions of a wide range of review panels, including the Merit Systems Protection Board, the Federal Labor Relations Authority and federal courts.

Two IRS employees blew the whistle on their boss, alleging he had connections to organized crime, used IRS staff to perform tax research for a friend and accepted gratuities from taxpayers. Later, the employees accused their supervisors of retaliating against them for making the allegations.

The charges of retaliation worked their way through several appeals at the Merit Systems Protection Board. Ultimately, the supervisors were found innocent of whistleblower retaliation.

The supervisors then asked MSPB to force the Office of Special Counsel to reimburse them for their legal fees of $33,000. The OSC is an independent agency that prosecutes federal managers on whistleblower retaliation charges. OSC fought against the reimbursements, suggesting such a precedent could make it difficult for the office to seek disciplinary action against managers who violate the Whistleblower Protection Act.

The board this month told the Office of Special Counsel to get its checkbook ready. If a manager is found "substantially innocent" of charges, then OSC has to pay up, the board said.

Lesson: If the OSC wants to accuse managers of whistleblower retaliation, it better be prepared to pay the price.

Frank Santella, Joseph Jech v. Special Counsel, CB-1215-91-0007-A-1, Merit Systems Protection Board, May 9, 2000

Unofficial Travel

Patricia Anderson, an employee at the Census Bureau, lives with and cares for her elderly, blind mother in Washington. When Anderson was assigned last year to travel from Washington to Accra, Ghana on official Census Bureau business for three weeks, the Commerce Department purchased a $3,238.20 round trip ticket from Washington to Ghana for her.

Anderson exchanged the ticket for a $2,252.10 round trip ticket between Detroit and Ghana. Anderson intended to drive her mother, using her own car, to her sister's home in Michigan, so her sister could care for her mother while she was gone.

She gave the Commerce Department the $986.10 refund from the Detroit/Ghana plane ticket, but sought a reimbursement of $347.90 from the agency to cover her travel expenses from Washington to Michigan. Instead, Anderson was reimbursed $100 for taxi transportation costs to and from the airport from her residence.

The Board of Contract Appeals denied Anderson's claim for her car trip to Michigan, stating that reimbursement for travel expenses are only available when the employee is on official business for the government.

"At the time that the claimant transported her mother to Michigan, she was not in an official travel status," the decision said.

Lesson: Even if you're saving the government money, when it comes to some travel expenses, you're on your own.

In the Matter of Patricia E. Anderson (GSBCA 15143-TRAV) GSBCA, April 12, 2000

By Kellie Lunney and Brian Friel

May 19, 2000