Comey’s Testimony Underscores Need for Strong Whistleblower Protections

 

Comey’s Testimony Underscores Need for Strong Whistleblower Protections – Zuckerman Law

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For me, the most telling moment of former FBI Director Jim Comey’s June 8th testimony occurred early in the hearing, when Mr. Comey choked up as he recalled the White House’s publicly stating that the President had fired him because the “FBI was in disarray.”

This emotional display seemed out of character for Mr. Comey. While U.S. Attorney for the Southern District of New York, he successfully prosecuted organized crime. As Deputy Attorney General during the George W. Bush Administration, Mr. Comey refused to sign an extension of the warrantless domestic spying program and defied the White House Counsel and Chief of Staff. Mr. Comey can fairly be described as a “tough guy.” So how did he go from leading the most powerful law-enforcement agency worldwide to being labeled a “leaking liar”?

To an experienced whistleblower advocate, Mr. Comey’s predicament is not surprising. Mr. Comey’s experience, unfortunately, is like those of many whistleblowers I have represented over more than a decade. President Trump promised to bring a business approach to government—and his retaliation against Mr. Comey is straight out of the corporate defense playbook. Corporations typically take the following steps of escalating retaliation to silence whistleblowers:

Intimidate and Silence the Whistleblower

In his June 8th testimony, Mr. Comey described in detail how the President had asked him to drop the investigation of Michael Flynn and had conditioned Mr. Comey’s job on “loyalty” to him. Senator Rubio expressed skepticism about Mr. Comey’s feeling intimidated by the President and blamed Mr. Comey for not pushing back. But that type of Monday-morning quarterbacking ignored the power dynamics of the conversation. Mr. Comey wanted to keep his job and was understandably reluctant to accuse the President of obstructing an investigation.

Whistleblowers often confront this intimidation tactic in the workplace. A supervisor or senior company official tells the whistleblower to “let it go,” “mind your own business,” or learn to be a “team player.” And in some cases, the whistleblower is told to shut up if he or she wants to remain employed. Threats of retaliation, whether express or implicit, are powerful tools to silence a whistleblower. When a company officer or senior manager orders a subordinate to do something unlawful or to cover up unlawful conduct, holding firm to one’s ethical values is not an easy avenue to follow. As Mr. Comey learned, refusing to carry out an unlawful order may be career suicide, at least in the short term.

Retaliate Swiftly and Severely Against the Whistleblower

Initially, the bizarre method of firing Mr. Comey seemed surprising for a President who perfected the art of firing on his reality show, The Apprentice. Mr. Comey was not given an opportunity to resign; he was not even notified that he had been fired. But now that we know about the President’s real motive for firing Mr. Comey, it’s clear that his tack was deliberate.

Mr. Comey learned of his firing while addressing FBI agents at a Los Angeles field office when the announcement flashed across a television screen. The White House had announced Mr. Comey’s firing without notifying Mr. Comey himself. President Trump sent a loud and clear message to Mr. Comey and to every senior government official about the consequence of disloyalty.

In the corporate workplace, whistleblower-employees are similarly humiliated as a warning to their colleagues. A whistleblower may be escorted out of the office with security guards while other employees are present, pulled out of a meeting and fired on the spot in front of colleagues, or simply fired via text message. When a corporation fires a whistleblower in this humiliating fashion, it ensures that all other employees know the consequence of whistleblowing.

Badmouth the Whistleblower and Their Work History

Firing Mr. Comey in a humiliating and offensive manner served only as phase one. President Trump then defamed Mr. Comey and asserted that he fired him because of chaos within the FBI, as well as the alleged loss of confidence in Mr. Comey among FBI agents.

These statements stand in stark contrast to the President’s repeated, public praise of Mr. Comey before Mr. Comey refused to comply with the President’s “hope” that Mr. Comey drop the investigation of Flynn. Indeed, if President Trump believed that Mr. Comey’s leadership caused chaos within the FBI, then why did the President invite Mr. Comey to continue to serve as FBI Director?

This patent distortion of Mr. Comey’s performance record is an all-too-common experience of whistleblowers. Prior to blowing the whistle, they receive strong performance evaluations and bonuses; they are valued members of the team. But once they blow the whistle and refuse to drop their concerns, they are suddenly deemed incompetent and unqualified for their position. And when a company realizes that it lacks any existing basis to fire the whistleblower, it creates one by subjecting the whistleblower to heightened scrutiny and setting the whistleblower up to fail. For example, a company might place the whistleblower on a performance-improvement plan that contains impossible objectives, and then fire the whistleblower for not meeting those unattainable goals.

This tactic may backfire and enable a whistleblower to ultimately prevail at trial, but the damage to the whistleblower’s reputation is permanent. Prospective employers are reluctant to hire someone who previously fired for poor performance and are especially reluctant to hire a whistleblower. Many whistleblowers never find comparable employment and must accept lower-level positions, earning a fraction of what they did before their wrongful termination.

Attack the Whistleblower’s Credibility

Apparently, President Trump has no evidence to rebut Mr. Comey’s vivid account of the President’s alleged attempts to obstruct justice. So President Trump called him a “liar.”

Desperate to defend themselves at all costs, corporations frequently employ this tactic—labeling the whistleblower a disgruntled former employee who will say anything to win his or her case. So far, this is not working well for President Trump, whose accusation merely serves to shine a spotlight on his own questionable credibility.

Attacking a whistleblower’s credibility is an effective and pernicious tactic in many whistleblower cases. Once expelled from a company, a whistleblower is marginalized and alienated from former coworkers. The key witnesses continue to work at the company and, fearing retaliation, are reluctant to corroborate the whistleblower’s testimony. Though whistleblowers may still prevail (for example, by using documentary evidence), the attack on a whistleblower’s credibility is odious because the company fired the whistleblower precisely for having integrity.

Create a Post-Hoc Justification for Firing the Whistleblower

Prior to firing Mr. Comey, President Trump papered the file with a post-hoc justification for the firing. After the President decided to fire Mr. Comey, Deputy Attorney General Rod Rosenstein was tasked with drafting a memorandum to the Attorney General outlining concerns about Mr. Comey’s performance. Most of those concerns focus on Mr. Comey’s statements about the investigation of former Secretary of State Hillary Clinton’s use of a private email server. Surely President Trump knew of those public statements when he repeatedly asked Mr. Comey to remain as FBI Director (as long as he could pledge “loyalty” and drop the Flynn investigation).

In this case, the White House’s initial reliance on the Rosenstein memo as the basis for the decision to fire Mr. Comey backfired because President Trump told NBC anchor Lester Holt that he had decided to fire Mr. Comey regardless of the memo. In many whistleblower-retaliation cases, however, these types of pretextual memos may be persuasive. Some judges even rely on such memos, which mask the real reason for a firing or other adverse action, to grant the company summary judgment and deny the whistleblower a jury trial.

On the other hand, creating a post-hoc justification for a retaliatory adverse action sometimes misfires by providing strong evidence of pretext and spurring a jury to award punitive damages. For instance, a former in-house counsel at Bio-Rad Laboratories recently secured more than $11 million in damages at trial in a Sarbanes-Oxley whistleblower-retaliation case. The jury awarded $5 million in punitive damages because Bio-Rad had backdated a negative performance evaluation of the whistleblower that the company drafted after it fired him.

Focus on the Whistleblower’s Alleged Misconduct

To distract attention from what may be obstruction of justice, President Trump and his attorney have focused on Mr. Comey’s leak to the press and have alleged that the leak was unlawful. This accusation seems frivolous because Mr. Comey did not leak classified information, grand jury material, or other sensitive information. Instead, he revealed that President Trump had conditioned his continued service as FBI Director on his agreeing to drop the investigation of Flynn. As a private citizen, Mr. Comey has a constitutional right to blow the whistle to the media about this matter of public concern. Mr. Comey did not reveal to the media information from FBI investigative files or classified information. Yet President Trump and his allies compare Mr. Comey to leakers who illegally disclosed classified information. This is an appalling accusation against the former head of a law-enforcement agency.

But this is another standard corporate defense tactic in whistleblower cases. To divert attention from the wrongdoing that the whistleblower exposed, the company uses its substantial resources to dig up dirt on the whistleblower. The company or its outside counsel examines the whistleblower’s timesheets and expense reports with a fine-tooth comb to find any discrepancy, reviews every email to find some inappropriate communication, and places all of the whistleblower’s work under a microscope to find any shortcoming.

Sue the Whistleblower and Initiate a Retaliatory Investigation

Firing Comey, concocting a pretextual basis for the firing, and branding him a leaking liar apparently was not sufficient retaliation.  So shortly after his testimony, President Trump’s personal attorney announced his intention to sue Mr. Comey and/or file a complaint with the Department of Justice Office of Inspector General (OIG).  I am skeptical that a civil action against Mr. Comey or an OIG complaint poses any real legal threat to Mr. Comey.  To the contrary, such a complaint would likely pose a greater risk for President Trump, including potential counterclaims and the risk of being deposed or questioned under oath by the OIG.

The misuse of legal process against corporate whistleblowers, however, is an especially powerful form of retaliation in that it can dissuade a whistleblower from pursuing their claims.  When I defend against this form of abuse of process, I am always struck at the seemingly endless resources that the company will spend to prosecute claims lacking any merit or value.  Fortunately, these claims can go awry by spawning additional retaliation claims under the whistleblower protection laws.  And a jury can punish the employer for subjecting the whistleblower to abuse of process.

Why Whistleblowers Deserve Strong Legal Protection

In light of Mr. Comey’s distinguished record, he will likely bounce back and rebuild his career. But most corporate whistleblowers never fully recover. Too often they find their careers and reputations destroyed. Even when whistleblowers obtain monetary relief at trial, they are usually blacklisted from comparable positions, especially if they work in a small industry.

Mr. Comey’s experience as a whistleblower is a stark reminder of what can happen to any employee who is pressured by a powerful superior to engage in unlawful conduct or to cover up wrongdoing. When intimidation tactics succeed, the public suffers. The company could be covering up threats to public health or safety, environmental contamination, financial fraud, defective products, or any other conceivable harmful wrongdoing.

Courageous whistleblowers who put their jobs on the line deserve strong protection. As Congress embarks on a mission to gut “job killing” agencies, let us hope it will spare the very limited resources that are spent enforcing whistleblower-protection laws. Without such a large backlog of whistleblower cases, OSHA could have, for example, addressed the complaints of Wells Fargo whistleblowers years ago, potentially curbing or halting the bank’s defrauding of its customers. And Congress should consider filling the gaps in existing whistleblower laws. If Mr. Comey “lacked the presence of mind” to explicitly reject the President’s improper demand for him to drop the Flynn investigation, then surely most employees would also be reluctant to refuse an order to commit an unethical or unlawful act.

After Mr. Comey’s testimony, Speaker Ryan pointed out that “[t]he President’s new at this. He’s new to government.” Mr. Comey’s testimony should be a lesson for the President about how to treat whistleblowers. To make America great again, the President should abandon the Rambo litigation tactics that apparently served him well in New York real-estate disputes, and instead view whistleblowers as allies, not as enemies. As Tom Devine of the Government Accountability Project and I argue in an article in the Emory Corporate Governance and Accountability ReviewDraining the Swamp Requires Robust Whistleblower Protections and Incentives.

Jason Zuckerman represents whistleblowers nationwide in whistleblower rewards and whistleblower retaliation claims.  Recently Matt Stock and Zuckerman issued an ebook titled SEC Whistleblower Program: Tips from SEC Whistleblower Attorneys to Maximize an SEC Whistleblower Award.

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American Small Business League Fights to Stop the Government from Cheating Small Businesses out of Millions.

The American Small Business League (ASBL) fights to stop the Government from cheating small businesses out of billions.

ASBL has been granted a trial date of 12/11/2017 for their case against Sikorsky Aviation. The case seeks the disclosure of contracts Sikorsky Aviation received through a 27 year old Pentagon test program that was built to remove all transparency and accountability for the participating contractors. According to Professor Charles Teifer, one of the nation’s leading experts on federal contracting law, there has never been a trial for a FOIA case before, making Sikorsky’s resistance to transparency in the case unprecedented.

Small businesses have lost billions of dollars in government contracts due to the fact that the program allows the Pentagon’s biggest contractors to circumvent federal contracting law. A 2004 Government Accountability Office investigation[gao.gov] of the test program found no evidence the test program had ever increased subcontracting opportunities for small businesses. A story in Gov. Exec[govexec.com] questions the future of the program.

Here is a link to the latest story on our case in Government Executive: http://www.asbl.com/showmedia.php?id=2791[asbl.com]

Here is a link to our documentary on our fight for government accountability: http://www.asbl.com/showmedia.php?id=2775

Questions? Contact: Kyle, khilmoe@asbl.com

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Coalition Praises Senate Action Adding Disciplinary Teeth to the Whistleblower Protection Act

Senate Unanimously Approves S. 585, Dr. Chris Kirkpatrick Whistleblower Protection Act of 2017

WASHINGTON – The Make It Safe Coalition (MISC) Steering Committee praised May 25 Senate action by unanimous consent approving S. 585, the Dr. Chris Kirkpatrick Whistleblower Protection Act of 2017. Dr. Kirkpatrick was a whistleblower who challenged excessive prescriptions at the VA Medical Center in Tomah, Wisconsin and took his own life after being fired.

It expands to the entire civil service stronger rights and disciplinary accountability teeth that Congress passed last year for Department of Veterans Affairs (VA) employees. MISC leaders praised it as a breakthrough to deter retaliation.  Senator Ron Johnson (R-WI), Chairman of the Senate Homeland Security and Governmental Affairs Committee, sponsored the legislation.

The new law strengthens whistleblower protection from three angles:

*Stronger discipline penalties: The bill expands the “two strikes and out” rule that requires the VA to propose discipline for whistleblower retaliation or other prohibited personnel practices violating the merit system. After a finding by the U.S. Office of Special Counsel (OSC), VA Office of Inspector General (OIG), U.S. Merit Systems Protection Board (MSPB) Administrative Judge (AJ) or higher authority, a first offense would trigger a mandatory agency-proposed three-day suspension. A second offense would require proposed termination. The manager would retain MSPB appeal rights the same as for any other alleged misconduct.

Until now the chances of discipline for retaliating against whistleblowers has been between token and non-existent. Only the U.S. Office of Special Counsel can seek sanctions, and it seldom acts due to higher burdens of proof than necessary for remedial actions to “stop the bleeding.” Under S. 585, the whistleblower could seek discipline directly from a series of authorities, not all even requiring litigation. The OSC no longer would have to prosecute. Its investigative finding of prohibited personnel practice automatically would create sanctions.

*Expanded protection: The bill also makes unauthorized access to medical records a formal personnel action, creating liability under the WPA and civil service law for any prohibited personnel practice. This type of privacy violation has been a common tactic to find derogatory information on whistleblowers. Unlike last year’s VA reform, however, the bill does not expand personnel actions to include any retaliatory investigation. Unauthorized access to medical records is only one of the many forms of retaliatory investigation.

*Expanded training: The legislation also would require annual training in whistleblower laws for all supervisors and employees alike. Since few in either category are aware of merit system rights, improved training could have as much impact preventing retaliation as sharper disciplinary teeth.

MISC leaders offered the following comments on the legislation:

Tom Devine, Legal Director of the Government Accountability Project, was enthusiastic about the legislation as far as it goes, but urged further action.

If the House follows through, this bill will be an accountability breakthrough by closing a functional disciplinary loophole since 1978. For the first time bureaucratic bullies will have something to lose by retaliating. For all practical purposes, currently the worst that can happen now is that they won’t get away with it, and they likely will be rewarded for doing the dirty work. Hopefully the House will expand the personnel action for unauthorized medical access to include all retaliatory investigations, as it did last year for VA whistleblowers. Whistleblowers should be protected from all witch-hunts, not just those involving their medical records.

Emily Gardner, Worker Health and Safety Advocate of Public Citizen, said:

We commend Congress for taking action to protect whistleblowers when they bravely expose waste, fraud, and abuse within the VA. This bill is a step in the right direction and will serve as an important tool for ending retaliation against whistleblowers. Lawmakers should further strengthen the bill by prohibiting all retaliatory investigations against VA whistleblowers and pass this critical good government measure without delay.

Pete Sepp, President of the National Taxpayers Union, said:

When it comes to fiscally accountable government, whistleblower protection is taxpayer protection. Senator Johnson deserves a big round of applause from the people who pay government’s bills. His legislation recognizes that changing the bureaucracy’s attitude requires real consequences for federal supervisors who retaliate against whistleblowers.

Contact: Luke Drabyn, Communications Associate, GAP
Phone: 202.457.0034 ext. 130
Email: luked@whistleblower.org

Contact: Jenn Fedor, Communications Director, National Taxpayers Union
Phone: 703.582.2433
Email: jenn.fedor@ntu.org

Contact: Angela Bradbery, Director of Communications, Public Citizen
Phone: 202.503.6768
Email: abradbery@citizen.org

The Make It Safe Coalition

The Make It Safe Coalition is a nonpartisan, trans-partisan network of 50 good government, taxpayer, scientific, labor, civil liberties, and law enforcement organizations dedicated to strengthening protections for whistleblowers in private and public sector who protect the public by exposing waste, fraud and abuse in government.

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Sponsorship of S. 1094 “Department of Veterans Affairs Accountability and Whistleblower Protection Act of 2017”

DATE: June 1, 2017
TO: Congressional sponsors of S. 1094
FROM: The Make It Safe Coalition

RE: Sponsorship of S. 1094 “Department of Veterans Affairs Accountability and Whistleblower Protection Act of 2017”

The undersigned organizations write to express our dismay at provisions that severely threaten the merit system in S. 1094, the “Department of Veterans Affairs Accountability and Whistleblower Protection Act of 2017.” Ironically, Title II of the legislation would functionally cancel due process, the foundation for whistleblower protection and all other merit system rights. It is not possible to strengthen whistleblower protection rights on paper, while canceling a fair day in court to defend against retaliation or an intra-agency hearing while encouraging political purges.
We recognize and appreciate the stronger rights proposed in Title I of the legislation. The bill proposes a precedent-setting Assistant Secretary of Whistleblowing, and its Office of Accountability and Whistleblower Protection strengthens President Trump’s Executive Order creating a VA whistleblower office. The legislation properly makes whistleblower protection as a critical element in supervisory performance appraisals. It also requires stepped-up, personal training in whistleblowing law for employees. If the bill ended there, we would be expressing unqualified appreciation.
Unfortunately, Title II creates a Faustian bargain and without modifications to the due process provisions, is not something we can throw the full support of the whistleblower community behind. Title II creates a system to fire employees in two weeks, while canceling intra-agency appeals and turning Merit Systems Protection Board (MSPB) hearings into window dressing. While Board review would still be available, the MSPB would have to approve any decision supported by “substantial evidence,” which means “more than a scintilla.” The bill does not even leave crumbs for Performance Improvement Plans and all other performance-related actions, canceling all civil service rights. Those actions would make it much more difficult than it already is for employees to win when they act on Whistleblower Protection Act rights, or even merely seek justice.
The bottom line is that Title II creates thinly disguised civil service martial law. It cancels pre-existing rights against management abuse of power, whether through whistleblower retaliation, political purge or any other merit system violation. None of our organizations is opposed to “draining the swamp.” But this approach means that we may lose dedicated public servants instead of the alligators.

Marcel Reid, President
ACORN 8

Tom Devine, Legal Director
Government Accountability Project

Michael Ostrolenk, President
Liberty Coalition

David Williams, President
Taxpayers Protection Alliance

Elizabeth Hempowicz, Policy Counsel
Project On Government Oversight

Emily Gardner, Worker Health and Safety Advocate
Public Citizen

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An Open Letter to President Donald Trump and Members of Congress

The undersigned organizations and corporations write to support the completion of the landmark, 13 year legislative effort to restore credible whistleblower rights for government employees that resulted in unanimous passage of the Whistleblower Protection Enhancement Act (WPEA) of 2012. While the law was the fourth unanimous congressional mandate since 1978 for whistleblower rights in principle, the most serious work remains to be finished. That is because the WPEA left the highest stakes issues incomplete, pending further study.

We seek your leadership now to expeditiously finish what Congress started in the Whistleblower Protection Enhancement Act. That means further developing legal rights so they include the critical reforms listed below. Whistleblower protection is a foundation for government accountability, from draining bureaucratic swamps to achieving changes in which the public can believe. It does not matter whether the issue is economic recovery, prescription drug safety, environmental protection, infrastructure spending, national health insurance, or foreign policy. We need conscientious public servants willing and able to call attention to waste, fraud and abuse on behalf of the taxpayers.

Unfortunately, every month that passes has very tangible consequences for federal government
whistleblowers, because none have due process for a credible day in court to enforce their free speech rights. They are limited to administrative hearings at the U.S. Merit Systems Protection Board (MSPB), which does not have judicial independence, is under bipartisan congressional attack, and currently, the full Board does not even have a sufficient quorum to issue rulings. Since FY 2014, the full Board only has ruled three times out of 37 final decisions that an employee’s Whistleblower Protection Act rights were violated, including only one case in 2014 and 2015 combined for illegal whistleblower retaliation in the entire federal government.

The bottom line is clear. The Whistleblower Protection Enhancement Act will continue to be a source of false hopes and cynicism until it has the following additional teeth to enforce its mandate:

  • Grant employees the right to a jury trial in federal court;
  • Give whistleblowers the right to challenge retaliatory investigations;
  • Extend employment anti-retaliation rights to shield against all criminal and civil liability;
  • Extend temporary relief to whistleblowers whenever they prove a prima facie case of retaliation;
  • Make permanent normal access to appeals court for whistleblowers to challenge MSPB decisions;
  • Make permanent the WPEA pilot program for each Office of Inspector General (OIG) to have a whistleblower ombudsman;
  • Make sensitive job designations a personnel action to lock in protection against retaliation;
  • Require accountability through discipline to prevent unjust retaliation on whistleblowers;
  • Fully protect whistleblower disclosures even before an application for federal employment;
  • Shield employees by allowing them to refuse to violate illegal regulations; and
  • Grant the Office of Special Counsel the authority to issue a stay, without MSPB Board approval

These suggestions are the necessary infrastructure so that those who defend the public have a fair chance to defend themselves.

Sincerely,

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Congressional Record on Senate Nominations

President Trump has taken action on Senate nominations that directly impact the whistleblower community, including withdrawal of Ms. Lerner’s nomination to be renewed as the Special Counsel. More information can be found here: https://www.congress.gov/congressional-record/2017/2/28/senate-section/article/s1507-8?r=14

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