This year’s Whistleblower Summit for Civil and Human Rights (Summit), an annual event for whistleblowers and their advocates, kicked off on July 30, National Whistleblower Appreciation Day. The Summit was organized by ACORN 8 and other members of the Make It Safe Coalition. Ralph Nader held the first whistleblower conference in Washington DC nearly five decades ago, and we were proud to participate in this year’s gathering to honor our modern-day heroes. The Summit was filled with sage advice from whistleblowers, advocates and government officials, and the following highlights cannot capture the breadth of material covered. Further information can be found at the summit’s website.
Government Officials Supporting Truth-Tellers
The Senate Whistleblower Protection Caucus sponsored this year’s National Whistleblower Appreciation Day resolution, S. Res. 558. Senator Charles Grassley (R-IA), Chairman of the Senate Judiciary Committee and
co-chair of the Whistleblower Caucus, provided opening remarks to commemorate the day, saying, “Congress has sought to protect whistleblowers [because] it’s not just the right thing to do, it’s the sensible thing to do … Whistleblowers … know where to find the waste, fraud, abuse and in the corruption.”
During the summit luncheon, Senator Grassley cited the effectiveness of the False Claims Act, which has been used to recover more than $56 billion in taxpayer dollars since it was enacted in 1987. He remarked that whistleblowers are the most effective resources for draining the swamp, and he challenged President Trump to hold a Rose Garden ceremony to honor these courageous truth-tellers.
In recognition of this year’s 40th anniversary of the Inspector General Act, Michael Horowitz, Inspector General (IG) of the Justice Department, explained that IGs rely heavily on whistleblowers, and it is often the only way they learn what is going in an organization. He told whistleblowers that he wants to “make sure you have a safe place to speak truth to power”, which is why his office has supported measures such as the recently passed Whistleblower Protection Coordination Act, which will make permanent and strengthen whistleblower coordinators within federal agencies. Relatedly, in National Security Agency (NSA) OIG’s semi-annual report to Congress, NSA IG Robert Storch highlighted the significant role of whistleblowers and steps his office has taken to enhance its whistleblower program, including coordination with the whistleblower advocacy community.
Tristan Leavitt, Principle Deputy Special Counsel for the Office of Special Counsel (OSC) – the federal agency tasked with protecting federal whistleblowers from retaliation – acknowledged that this year also marks the 40th anniversary of the Civil Service Reform Act, which was passed in the aftermath of the Watergate scandal and established rules and procedures for federal employees. He cautioned that at the end of the day, even when whistleblowers have rights, remedies can take time, and a lot of harm can come to a whistleblower before that individual is vindicated. He referenced pioneer Pentagon whistleblower Ernie Fitzgerald, who exposed massive taxpayer waste and coined the term “commit the truth”, because whistleblowers are often treated as if they have committed a crime for exposing a crime. Leavitt expressed, “I’m grateful for the courageous men and women who put their careers on the line to shine light” on government wrongdoing.
Health and Safety Whistleblowing
Department of Veterans Affairs (VA) whistleblowers spoke directly about their experiences committing the truth in order to defend veterans. Brandon Coleman, who exposed breakdowns with VA suicide prevention efforts, spoke about his new role helping to run a mentoring program within the VA’s Office of Accountability and Whistleblower Protection. The number one complaint he hears is that employees have difficulty finding work after they blow the whistle. He tries to help them by discussing his own whistleblowing, the OSC process, how to speak with the media, and the importance of self-care.
Kuauhtemoc Rodriguez, former chief of specialty care clinics in Phoenix and an Iraq veteran, reported VA delays in providing mental health care and a list of 116 veterans who died before receiving care. As Rodriguez explained, “Veterans receiving care is an issue that transcends politics – they deserve the health care that they earned.” Rodriguez described his retaliation to coming forward, including government surveillance, death threats, and denial of paid leave for a cardiac injury.
Daniel Martin, Chief Engineer for the VA Northern Indiana Health Care System, explained that for more than 500 days he has been stripped of his job duties and relocated to a room contaminated with silica and asbestos after he internally reported gross misuse of taxpayer dollars. On June 27, OSHA issued a Notice of Unsafe or Unhealthful Working Conditions at the facility due to the presence of silica, lead, and asbestos. The VA has until August 18 to correct the violation. Despite the threats to his health, Martin explained that he remains at the VA because he wants to continue to support veterans.
James DeNofrio worked as an administrative officer at the Altoona, Pennsylvania VA Medical Center, and he put his career on the line when he reported concerns about the quality of care that patients were receiving under the hands of an aging physician who was making life-threatening mistakes. In the wake of his whistleblowing, he reported that he was denied promotions and overtime, threatened with lower performance ratings, and his medical records were shared with unauthorized recipients. Echoing Senator Grassley’s remarks, DeNofrio, and the other courageous civil servants should be honored with a rose garden – not punished for exposing harm to our veterans.
Day two of the Summit kicked off with a panel regarding USDA whistleblowers in the #MeToo movement. Members and supporters of the USDA Coalition of Minority Employees described the experiences of women in the U.S. Forest Service and other USDA divisions that have been sexually assaulted within the workplace. They identified the need for exposure, accountability and coalition building to end sexual harassment. Rep. Jackie Speier’s (D-CA) office discussed the role of congressional hearings and agency audits in shedding light on these abuses. Notably, Rep. Speier has advocated for congressional staff who expose sexual harassment to have whistleblower protections to challenge retaliation.
During a panel entitled Blowing the Whistle on the Blue Wall of Silence, Matthew Fogg spoke about his experience exposing systemic racism within the U.S. Marshal Service. According to Fogg, the “blue wall of silence” means “you keep your mouth shut” when you witness wrongdoing within a law enforcement workplace. When he considered coming forward, his peers urged him, “Whatever you do, don’t take on the system.” The experience brought him to tears, and “changed my whole life, change my career.” But as he explained it, “the only way you deal with a bad cop is through a good cop.” Fogg embodies the role of the “good cop”, and he is starting a national whistleblower network for law enforcement officers.
Tips for Working with the Office of Special Counsel and Congress
The Government Accountability Project (GAP) organized two instructive panels to help whistleblowers collaborate with OSC (Office of Special Counsel) and Congress to advance their whistleblowing while protecting them in the process. One panel featured leadership at OSC and the Merit Systems Protection Board (MSPB), which hears and decides whistleblower reprisal claims. As Tom Devine, GAP Legal Director, explained, “This is the panel of individuals who deliver on your rights.”
Unfortunately, the MSPB has been unable to deliver — notwithstanding MSPB Vice-Chairman Mark Robbins’ effort to keep the Board functional — because it currently lacks a quorum and has a backlog of approximately 1,300 cases. In July the Senate Homeland Security and Government Affairs Committee held a nomination hearing for three MSPB nominees, and those individuals are still being vetted.
Special Counsel Henry Kerner explained that due to limited resources and statutory limitations, OSC is only able to obtain corrective action for a small percentage of whistleblowers. Largely as a result of the outreach and improvements made under former Special Counsel Carolyn Lerner, the number of OSC cases has almost doubled in the last five to six years. However, OSC’s resources have not kept pace, making it difficult process cases in a timely manner.
One of Kerner’s biggest priorities is to increase the OSC’s efficiency and effectiveness, and they have already made progress. For FY2017 OSC’s average time to take a complaint and assign an examiner was 18 days, and in 2018 OSC has reduced it to five days, Kerner shared. There’s more work to be done, however, and the OSC is beginning to implement recommendations from a June 2018 Government Accountability Office report on ways in which to improve processing of whistleblower disclosures and reprisal complaints. “One thing we can do is tell you as early as possible if there are other options for you,” Kerner told the whistleblowers in attendance.
Panelists described OSC’s structure and previewed some changes. The Disclosure Unit is where OSC receives disclosures about government waste, fraud, abuse, and public health and safety dangers. OSC’s website provides a description of what a whistleblower can expect after he or she makes a disclosure. The Complaint Examining Unit investigates prohibited personnel practices, which span a variety of whistleblower reprisal actions.
In response to its large caseload, OSC is planning to change the structure for investigating whistleblower retaliation. Its goal is to provide a system where the same one to two attorneys can handle a retaliation case from the beginning to end. Leavitt explained, “The importance and challenge is that the [whistleblower’s] evidence is sufficient to prove retaliation.” OSC panelists recommended that whistleblowers prepare for working with OSC by providing a timeline of the events.
Since 2012 OSC has also offered alternative dispute resolution (ADR), a form of mediation that “often yields resolutions that are more creative and tailored to the needs of the parties as well as far less costly in time and money than traditional legal routes”, according to the OSC website. Jane Juliano, who leads the ADR Unit, explained that ADR can be a good fit for whistleblowers who want to sit down with the agency officials and have a conversation, and want to maintain confidentiality. It’s not a good fit for whistleblowers who want an investigation into the alleged reprisal, which they forgo through ADR.
The panel on working with Congress offered a wealth of advice from congressional staff and advocates on whistleblower collaboration with the legislative branch. Sarah Garcia, Senior Counsel for the Senate Homeland Security and Government Affairs Committee minority, shared that her Committee begins by looking at the facts involved in the whistleblower’s case and determining what, if anything, Congress can do in response. Congress’ primary ability “is the power of the pen,” Garcia explained.
DeLisa Lay, Senior Investigative Counsel for the Senate Judiciary Committee majority, shared that the Committee’s primary role is to engage in oversight to ensure that agencies are fulfilling their missions. For instance, they are currently looking into the Security and Exchange Commission’s proposed new rules for its whistleblower program.
Krista Boyd, General Counsel for the House Oversight and Government Reform Committee minority, explained “it helps if we have more than one whistleblower to identify it is a systemic problem,” which can lead to Congressional investigations and oversight letters on agency misconduct.
Elizabeth Hempowicz, Policy Director for the Project On Government Oversight, discussed efforts by advocates and the House Whistleblower Protection Caucus to increase congressional staff capacity to work with whistleblowers.
Tom Devine summarized the panel’s advice for how whistleblowers can work most effectively with Congress into 10 points:
- Do your homework before you contact Congress. Be strategic in who you meet with, research the office’s jurisdiction, track record, and their ability to deliver results.
- Establish the ground rules for your relationship with the offices, such as confidentiality.
- Prepare a one to two-page fact sheet that extracts your case’s key facts and conclusions.
- In addition to the fact sheet, prepare a timeline of the key events in your whistleblowing.
- Distill your introductory presentation down to a two to three-minute summary, and practice it!
- Do speak in consequences. Discuss what impact your disclosures have on the public.
- Do not make it a briefing on your own injustices. If Congress decides the issue is significant and has public policy impacts, then the office will also want to know how you are being mistreated.
- Demystify the technical jargon for the offices.
- Be prepared to back-up everything you say with documents, but before providing additional evidence, let the staff determine what documentation they need.
- Be a navigator. Let the office know that you know what documents to ask for, which witnesses to speak with, what the agency excuses will be and how to rebuff them.
Telling Your Whistleblowing Story
Michael McCray, Summit organizer and Managing Editor of American Banner Books, organized a panel of experts to discuss tips and strategies for harnessing the power of their stories to advance their whistleblowing. Rob Kall of OpEdNews offered his outlet as a forum for whistleblowers to share their stories. Kathy Cole, Producer of the documentary film Whistleblowers, explained how her relentless advocacy to expose safety violations in New York schools resonated with parents and taxpayers.
Marcel Reid, Summit organizer and co-founder of ACORN 8, spoke about her experience after exposing embezzlement at ACORN, the non-defunct community organizing group, “The number one thing I noticed was, as a whistleblower you couldn’t tell your own story. Everyone had their own interpretation. That’s when I realized that we needed to find a way to tell our stories.” She went to the Pacifica Radio Board, which unanimously agreed to commit to covering whistleblower stories. As Pacifica’s whistleblower liaison, Marcel works with whistleblowers to help them hone their stories to be shared more widely and suggests that whistleblowers practice their story with friends and people they trust. “Your number one indicator of how well people receive your whistleblowing is your ability to tell a tightly controlled story that you are in charge of,” explained Reid.
You can hear more about Reid’s story by watching this presentation she made at a TEDx conference:
Whistleblowers are integral to Public Citizen’s mission to protect the public interest since they serve as our eyes and ears to government and corporate wrongdoing. Whether the issue is protecting workers and communities from chemicals, making sure our food, medicine, and cars are safe, exposing corporate fraud, or ensuring our taxpayer dollars are spent responsibly, we have always relied on these courageous employees as the lifeline to warn us about abuses of power that betray the public trust. Thank you to all the brave workers and individuals who have the courage to speak truth to power.