An Inside Look at How Agencies Handle Whistleblower Revelations
The intelligence community is trying to change hearts and minds about what it means to blow the whistle on wrongdoing.
A whistleblower may be completely wrong in his or her perceptions of wrongdoing, but if he or she reasonably believes what they report about waste, fraud or retaliation, they’re still a whistleblower. That's according to Dan Meyer, who runs the whistleblower program for the Intelligence Community inspector general. But “if they’re lying, they’re not.”
The term whistleblower has long been subjective and even aspirational. And whether the thousands of employees across government who phone agency hotlines or disclose evidence through channels are the real deal or simply troubled individuals is determined by a multi-agency system of investigators and adjudicators.
Academic studies show that whistleblowers tend to be extroverts with personality traits that support nonconformity and a proactive approach to controlling their environment. “The few employee demographic factors that correlate with higher rates of whistleblowing include increased tenure of employment at the company, increased pay, increased education, and being male,” wrote a team of scholars in a 2015 article titled “The Psychology of Whistleblowing” in ScienceDirect.
A decision to bypass one’s boss to expose bad behavior is frequently made by people who are either deeply principled or plain stubborn. But it is seldom taken lightly.
That’s because “few are regarded as heroes or martyrs,” notes C. Fred Alford in his 2002 book Whistleblowers: Broken Lives and Organizational Power. Not only are they mistreated by their organizations, whistleblowers often do not receive support from their families and communities, he writes. For many, “the cost is too high,” Alford found. He argues for judging whistleblowers not on their motivation but on the reasonableness of their evidence. “It is enough that the whistleblower not be crazy and that his or her case not be totally implausible.”
Whistleblower ombudsmen are reluctant to discuss the suggestion that some whistleblowers may be eccentric or unstable for fear of discouraging authentic ones from coming forward. But the system’s capacity to separate the wheat from the chaff can be limned to some degree by the commitment to training and awareness of available channels for whistleblowers and best practices for managers in handling them.
Training Widely and Deeply
Across the government, agencies train managers, investigators and adjudicators in meting out just treatment of both vindicated and rejected whistleblowers.
Much of the training is coordinated by the independent Office of Special Counsel, whose Outreach and Education unit has delivered training for which 78 agency components have now been certified. (Another 56 have registered to become certified, OSC says.) It trains “senior accountable officials” at agencies (and within its own staff) formally and informally. Materials are available online on such topics as prohibited personnel practices, and how employees are informed of rights and remedies under various laws.
OSC’s training does not appear to have prompted frivolous attempts at whistleblowing. “Our experience is that agencywide education programs have not resulted in a substantial increase in the number of complaints filed by employees of that agency,” the agency’s website says. “And often, such training helps prevent [prohibited personnel practices] from occurring.”
Another key training center for weighing whistleblower merits resides at the Justice Department inspector general’s office. Within months of being sworn in in 2012, IG Michael Horowitz announced the creation of the first-ever position of whistleblower ombudsman. Filled by his deputy Robert Storch, that position focuses on “training and educating employees within the department on the role and importance of whistleblowers in improving the effectiveness and efficiency of the department’s operations.”
“The department’s leaders must ensure that employees can come forward and report waste, fraud, abuse and mismanagement without fear of retaliation, and that they know where and to whom they can report their concerns,” the office said in a statement.
Storch’s office has provided its own staff with training via videos developed with the Office of Legal Education and Justice Television Network, and is offering the program to other components within Justice, including those involved in classified national security issues.
The Defense Department Office of Inspector General also plays a key role in training. The hotline for the government’s largest department alone receives some 20,000 complaints annually. The Defense watchdog publishes a lengthy guide for whistleblowing and publicizes the hotline via videos and posters throughout the department. It recently took on a new role handling all sexual assault whistleblower investigations.
But the office that handles perhaps the most sensitive issues—those involving national security secrets—is the small team working with Dan Meyer, executive director for intelligence community whistleblowing and source protection. He recently gave Government Executive an exclusive look at the unclassified training that he has presented to IG and intelligence community employees, as well as members and staff on Capitol Hill.
In the 17 agencies and components in the intelligence community, managers are trained in following President Obama’s 2012 presidential policy directive detailing how whistleblowers can operate within the system and safely disclose information through official channels.
The IC stands out from much of the rest of government in that employees who leak classified information to the news media—and many in the community would include exiled National Security Administration contractor Edward Snowden in this category—can be criminally prosecuted.
One key distinction from training elsewhere, Meyer said, is that James Clapper, director of the Office of National Intelligence, has put out a directive requiring annual training and awareness within ODNI, which is documented electronically, “so it’s not just a ‘nice to have,’ ” he said.
In 2014, Meyer’s office received a $100,000 appropriation to create a half-hour Web-based slide show and multiple-choice test to assess employees’ understanding of the material. While the inspector general’s office can’t mandate its use by other intelligence agencies, the tool is made available to them. “Now that training is properly being transferred to the agencies,” Meyer said, “we are focused on an unclassified Web-based outreach tool for both employees who might disclose or need protection, and their supervisors and managers who need to react maturely to IC whistleblowing.”
One sample fact from the slide show: Whistleblowing goes back in U.S. history to at least 1778, when the Continental Congress unanimously adopted the first whistleblower legislation, declaring it was “the duty of all persons in the service of the United States” to report misconduct or fraud.
Strategically, the IC training is aimed at educating potential whistleblowers on what is and isn’t a protected disclosure, said Deputy Inspector General Robert Johnson. In other words, the IC wants to reclaim the term whistleblower and return it to something that is seen as beneficial by managers. “High functioning systems use whistleblowers to their advantage, to catch problems before they cause real harm,” Johnson said. “We understand that in the short term, it’s difficult for any particular manager to see that a whistleblower on their staff is a good thing. But feedback is an essential function of any good system and we are starting to see, from the higher levels of leadership, a sea change in how whistleblowers are perceived and valued. The system we’re building is designed to change that mindset from the top down.”
The goal of a healthy whistleblower program, Meyer added, “is to get them to drop off information. “We tell them not to attach their identity to being a whistleblower. Once the information is dropped, it’s time to return to their job and agency mission.”
There’s a “myth that talking to an IG is a formal process,” Meyer said, stressing that employees can seek advice from him over coffee. It is the IG staff’s job to investigate the claims, the parent agency management’s job to respond with remedies.
During an IG’s staff investigation, interviews with involved parties at multiple levels can be conducted discreetly in a third building secure room. In today’s digital environment, much of an investigation can be conducted online.
“The investigated person is typically the last interviewed,” with protections differing in criminal cases and civil ones, Meyer said. The target “initially is approached non-confrontationally. We can operate for a while by masking sources,” Meyer said. “But the IG statute says we may end confidentiality in the interest of the investigation, so sooner or later in a reprisal case, the whistleblower will drop confidentiality.”
There’s “an urban legend that the IG cannot hear [an allegation in an intelligence agency] because a program is too classified. But we have people who can be read in,” Meyer said. “And we don’t want the people in the most sensitive programs to think they’re not covered.”
Nor is there a conflict between whistleblowing and the national security community’s “insider threat” detection program aimed at weeding out spies, he said. “They’re mutually reinforcing.”
In evaluating evidence that a whistleblower suffered retaliation (such as a demotion or a bad performance review), “motives are complex, but the mechanisms of proof don’t require a smoking gun,” he said.
When a whistleblower’s charges are vindicated, agency managers negotiate a remedy or corrective action. “Some requests are strange,” Meyer said. “They may want money for gasoline, or just a letter, or discipline” for the manager who committed the prohibited reprisal.
Separating the Wheat from the Chaff
Based on Meyer’s 16 years of counseling whistleblowers (he was at the DOD IG before moving to the intelligence community), he can think of only four or five cases where a whistleblower claim appeared to be based on “animus.” On the other hand, only a small percentage of hotline complaints “are consequential,” he acknowledged.
“We still take the information,” he says, because part of the IG’s job is to determine whether there is bias toward production of information that prompts some employees to crowd the intake process. “But I can think of two or three cases” in which the motivation might be related to a stalled career or problems at home. “We could say, ‘Isn’t this something you should take up with your wife or pastor? Some thank me, saying they should have dealt with their teenage kids instead of going after their boss.”
But for investigators to head down this path “is to go over a thin sheet of ice,” Meyer cautioned—“we’re not counselors or social workers.”
Johnson noted that some who file complaints can “mistake policy decisions or funding as wrongdoing. Or they make mistakes along the way—finding waste, fraud and abuse but then leaking it, which gives the agency a reason to disqualify them,” he added. “Some, if they’re in trouble for another reason, try to grab the whistleblower cloak.” But overall, “whistleblowers are sources—the bread and butter of what we do.”
As Meyer put it, “You need to have clean hands, because if you do something disqualifying, you will get hammered during the process,” as in a lower performance evaluation. “Whistleblowers have to be good at what they do,” he added. It’s also important that would-be whistleblowers study up before making disclosures, because the protections for contract employees differ from those for in-house employees.
Years of observations have convinced Meyer of some patterns. “In times of stress, people report more,” he said, recalling upticks in complaints during the 2005 Hurricane Katrina and in the run-up to the Iraq war. “A bad command climate will generate whistleblowing—and discontent is not productive,” he said. “I don’t think whistleblowers blow the whistle on managers they love.”
The military in particular is a tough environment for whistleblowers, Meyer said. “Supervisors are reluctant to admit error because they work under a system that doesn’t allow it—a military mistake can cost you your career.” Military hierarchy encourages “lots of a personal loyalty, often putting personal loyalty ahead of loyalty to the institution,” he said, which can mean higher-ups go after the whistleblowers.
But in the intelligence community, the ongoing training directed toward supervisors “will be most important in the next two or three years,” Meyer said. The next time there’s a Snowden-type leak, and “the FBI comes in and puts someone in an orange jumpsuit, we will ask whether that person got the training to lawfully disclose, or did management fail us.”