Protected disclosures not always honored in program former director Comey lauded.
The FBI, which has been rocked by firings and charges of partisanship, on Thursday drew fire from the Justice Department’s watchdog for inadequate training of supervisors in the handling of whistleblowers.
In a “procedural reform recommendation,” the inspector general, after a recent investigation that backed a claim of reprisal against a whistleblower, determined that the bureau’s “training on whistleblower protections does not provide sufficient guidance to FBI supervisors and managers concerning identifying and responding to potential whistleblowing activity under the U.S. code’s whistleblower statute and the Code of Federal Regulation’s FBI whistleblower regulation."
Potentially “protected disclosures” of waste or wrongdoing by a subordinate employee were interpreted by supervisors as “failing to follow the ‘chain of command,’ ” and those supervisors took personnel actions against the discloser when that employee communicated directly with a high-level official.
Though the recommendation didn’t specify the case, the IG on March 14 released an investigative summary that substantiated a claim of retaliation by an FBI whistleblower. It described a technician on temporary duty who claimed retaliation after he made a protected disclosure to the special agent in charge of his division. A home-office supervisor then banned him from sending “additional emails outside the division without her prior approval, threatened to give him a lower score on his annual Performance Appraisal Report, and told him that TDY opportunities ‘could dry up.’ ”
The responsibility for making a final adjudication of the reprisal claim lies with the Office of Attorney Recruitment and Management, the IG said.
In its broader recommendation, the IG reminded the bureau that such retaliation may be unlawful and reiterated that proper whistleblowing may constitute reporting any “violation of any law, rule, or regulation; or gross mismanagement; a gross waste of funds; an abuse of authority; or a substantial and specific danger to public health or safety.”
Officials to whom an aspiring whistleblower may disclose allegations, the IG reiterated, include the supervisor in the direct chain of command, the IG, the Justice Department’s Office of Professional Responsibility, the FBI’s inspection division, Congress, the Office of Special Counsel, or any employee designated by the above parties.
The admonishment comes after years of efforts to improve FBI managers’ understanding of the whistleblower laws. In 2015, the Government Accountability Office issued a report recommending clarification of roles, improved training and an acceleration of the investigatory process. Some 47 percent of all FBI whistleblower cases filed in one year were dismissed because the employee reported problems directly to their supervisor instead of reporting to one of the nine “designated officials,” it said.
In August 2016, then-FBI Director James Comey marked National Whistleblower Appreciation Day on Capitol Hill with a speech in which he said whistleblowers “are not entitled to be right, but they are entitled to be heard in an adult conversation.” Hence the FBI “talks about whistleblowers constantly and provides training in the laws, regulations and rules with a structure designed to encourage whistleblowers to raise their hands,” Comey said.
In December 2016, Congress passed a narrow version of a bill originally introduced by Sens. Chuck Grassley, R-Iowa, and Patrick Leahy, D-Vt., and Rep. Jason Chaffetz, R-Utah. Titled the FBI Whistle Protection Enhancement Act, it was designed to clarify that FBI whistleblowers are protected if they report wrongdoing to their supervisors or through their managerial chain of command.
Last October, a federal circuit court ruled against an FBI agent who claimed the right to defend himself in federal court or a third-party appeals agency (such as the Merit Systems Protection Board) against adverse personnel actions using whistleblower retaliation.
That case has been appealed to the Supreme Court, and on March 8, the National Whistleblower Center joined with the Project on Government Oversight in a friend-of-the-court brief seeking a high court hearing for John Parkinson and others after Parkinson reported employees who used FBI surveillance planes for joy rides and to pick up prostitutes.
The brief argues that the Justice Department’s “procedures for FBI whistleblowers are not an adequate substitute for a veterans’ preference-eligible FBI employee raising a whistleblower claim in an MSPB case,” according to the center.