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Whistleblower Protection Presentation

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Whistleblower Protection Act
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Helps to Promote a More Efficient and
Effective Government
This law encourages employees to disclose information they reasonably believe
evidences wrongdoing so that,
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The wrongdoing can be addressed and prevented in the future;
management can make programs more efficient and effective; and
Employees are protected and do not suffer retaliation for coming forward.
Helps to protect taxpayer dollars from being wasted.
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Whistleblower Protections
5 U.S.C. В§ 2302 (b)(8)
A protected whistleblower is an employee who discloses information
which the employee reasonably believes evidences:
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a violation of any law, rule, or regulation,
gross mismanagement,
a gross waste of funds,
an abuse of authority, or
a substantial and specific danger to public health or safety.
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Protection Against Retaliation
5 U.S.C. В§ 2302(b)(8) prohibits a federal employee from taking or failing to take , or
threatening to take or fail to take, a personnel action because of a protected disclosure.
An employee must show, by preponderance of the evidence, that;
пѓј They made a protected disclosure; and
пѓј The disclosure was a contributing factor in the personnel action.
пѓј Did the person who took the action know about the disclosure?
пѓј Timing of the personnel action.
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Protection Against Retaliation (Cont.)
пѓј Agency has to show by clear and convincing evidence that
it would have taken the same action in the absence of the
protected disclosure.
 Strength of the agency’s evidence in support of its action;
пѓј Existence and strength of any motive to retaliate by agency
officials who were involved in the decision;
пѓј Evidence that agency takes similar action against employees
who were not whistleblowers but otherwise are similarly
situated.
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Personnel Actions
Personnel actions include:
• An appointment;
• A promotion;
• A detail, transfer, or reassignment;
• A reinstatement;
• A reemployment;
• A decision concerning pay, benefits, or awards;
• Any other significant change in duties, responsibilities, or working
conditions.
These are just a few examples.
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WPA Standards:
Reasonable Belief of Wrongdoing
Reasonable belief of wrongdoing:
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The employee does not have to be correct; the employee’s belief is measured by
what is reasonable.
Something the whistleblower knows is untrue is not protected.
An unreasonable belief is also not protected.
Basically: Would a reasonable person not involved in the situation, knowing
the same information/facts believe that a wrongdoing occurred.
Reasonable person standard.
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WPA Standards:
Abuse of Authority and
Violation of Laws, Rules, or Regulations
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Abuse of authority
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“An arbitrary or capricious exercise of power by a federal official or
employee that adversely affects the rights of any person or that results in
personal gain or advantage to himself or to preferred other persons.”
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Harassment or intimidation of other employees;
Assigning a grievance to a management official named as a subject in the grievance;
Providing preferential treatment to an employee with whom the supervisor was perceived as
having an intimate relationship.
A violation of any Law, Rule, or Regulation:
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Not something that a reasonable person would consider “arguably minor and
inadvertent mistakes in the conscientious conduct of assigned duties.”
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WPA Standards:
Gross Mismanagement or
Gross Waste of Funds
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Gross Mismanagement or Gross Waste of funds:
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Not merely a difference in opinion on how a program should be run;
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Affects Department's ability to accomplish its mission;
Creates a substantial risk of significant adverse impact on Department’s ability to
accomplish its mission.
• Example: Expending thousands of dollars for a database system that basically
provides the same information as an existing system.
• Example: A management decision not to investigate large scale thefts at a
commissary and not to redeem $90,000 worth of coupons was held to be gross
mismanagement.
Note: Examples cited in this presentation are taken from the MSPB report entitled “Whistleblower Protections for
Federal Employees,” September 2010. For a copy of this report see
http://www.mspb.gov/netsearch/viewdocs.aspx?docnumber=557972&version=559604&application=ACROBAT
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WPA Standards:
Danger to Public Health or Safety
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Substantial and specific danger to public health or safety
• Likelihood of harm resulting from the danger;
• Not whether the danger could only result in harm under speculative or improbable conditions.
• Key: Not mere speculation that it is possible for some danger at some point in the future.
• Example: Employee disclosed that agency lacked ammunition and instructed the security
staff to carry weapons not fully loaded.
• Allegation was that lives would be at risk if the agency were attacked.
• The danger was too speculative and was not imminent.
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Whistleblower Protection Enhancement Act
(WPEA): What It Is
On November 27, 2012, President Obama signed the WPEA into law to strengthen
protections for Federal employees who report fraud, waste and abuse. The WPEA:
Clarifies the scope of protected disclosures; the disclosure does not lose protection
because:
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It was made to someone, including a supervisor, who participated in the wrongdoing;
It reveals information that was previously disclosed;
of the employee’s motive for disclosure;
It was made while the employee was off duty;
It was not in writing;
It was made during the employee’s normal course of duty, if the employee can show that the
personnel action was taken in reprisal for the disclosure;
of the amount of time since the occurrence of the events described in the disclosure.
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Whistleblower Protection Enhancement Act:
What It Does
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Protects disclosures that an employee reasonably believes are evidence of censorship related to research,
analysis, or technical information that causes, or will cause, a gross waste or gross mismanagement, an
abuse of authority, a substantial and specific danger to public health or safety, or any violation of law;
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Expands the penalties imposed for violating whistleblower protections;
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Restores OSC’s ability to seek disciplinary action against managers who engage in unlawful retaliation.
пЃ¶ MSPB can impose reprimand, suspension, reduction in grade, removal, debarment from federal employment for
up to 5 years, or a civil penalty of up to $1,000.
Establishes a Whistleblower Protection Ombudsman for a five-year period.
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Educate employees about prohibitions on retaliation for protected disclosures, and
Educate employees who have made or are thinking about making a protected disclosure about their rights and remedies .
Not an advocate, legal representative or agent for the whistleblower.
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Nondisclosure Agreements (NDA)
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В§ 115 of WPEA makes it a prohibited personnel practice to implement or enforce any NDA
policy, form or agreement that does not include the following statement .
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“These provisions are consistent with and do not supersede, conflict with, or otherwise
alter the employee obligations, rights, or liabilities created by existing statute or
Executive order relating to (1) classified information, (2) communications to Congress,
(3) the reporting to an Inspector General of a violation of any law, rule, or regulation,
or mismanagement, a gross waste of funds, and abuse of authority, or a substantial and
specific danger to public health or safety, or (4)any other whistleblower protection.
The definitions, requirements, obligations, rights, sanctions, and liabilities created by
controlling Executive orders and statutory provisions are incorporated into this
agreement and are controlling.”
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Reporting Suspected Retaliation
If you believe you have been subject to retaliation for protected whistleblowing contact the
Office of Special Counsel (OSC):
1730 M Street, N.W., Suite 218
Washington, DC 20036-4505
(202)254-3600
(800)872-9855
(800)877-8339 (Federal Relay Service)
Visit the OSC Web page at http://www.osc.gov
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Questions
Mike Deshields
Special Agent (SA)
Whistleblower Protection Ombudsman
U.S. Department of Education
Office of Inspector General
(202)245-7053
Michael.deshields@ed.gov
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