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POGO Cheers MSPB for Granting Stay for Whistleblowers

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The Project On Government Oversight applauds the Merit Systems Protection Board (MSPB) and the Office of Special Counsel (OSC) for defending U.S. Army whistleblowers who may have suffered retaliation for exposing the truth about their supervisor’s illegal actions. The MSPB found reason to believe that these employees got serious payback for blowing the whistle, allegedly including harassment, loss of pay, and constructive removal (intentionally making working conditions difficult so the employee feels forced to leave his or her job). On September 6, the MSPB granted the 45-day stay requested by the OSC, providing temporary relief for the affected individuals who remain federal employees, while the OSC continues their investigation.

In this case, six employees of the Army Substance Abuse Program at Fort Richardson, Alaska (three psychologists, a social worker, a licensed counselor, and an administrative assistant) blew the whistle on their supervisor, Terry Bates. They jointly reported to the Joint-Base ombudsman that Bates was “knowingly falsifying, removing, and or/destroying clinical patient records.” These six individuals were brave to come forward. Their protected disclosures point to serious illegality that goes beyond victimless misconduct. The ombudsman recommended an investigation, and Bates’s supervisory and clinical responsibilities were temporarily suspended.

In conducting the investigation, Bates’s immediate supervisor found “problems with Bates’s leadership,” but said his primary concern was the staff’s “disregard of the established chain of command.” Bates was reinstated. Command allegedly told the six whistleblowers that the evaluation failed to back up their claims and warned them that if they couldn’t accept the conditions they would have to leave.

According to the OSC’s press release, within seven months of their disclosures, all six employees either left or were fired. During that time, the employees reported that they suffered “threats to their careers, placement on performance improvement plans, a removal action, workplace harassment, and interference with their attempts to find other employment.”

In terms of scope, the Order does not apply to any of the six individuals who have left government employment. OSC’s press release makes the distinction that “the stay was granted with regard to the three who remain federal employees.”

What are the specifics of the MSPB’s stay? First, it orders the Army to stop all actions to collect alleged debts (including repayment of sizable retention bonuses) from the affected individuals. Second, the stay orders the Army to halt all actions that may negatively affect the individuals’ tenure or future job prospects (which includes giving negative recommendations to potential employers).

When the MSPB and the OSC take a strong stance on protecting federal employees’ rights in court, would-be whistleblowers are more likely to feel safe coming forward to expose government waste, fraud, and illegality in the future. Granting this stay is exactly the kind of authority these agencies should be exercising. POGO is glad the MSPB provided some relief for these individuals, but it is only temporary and we will be interested in the outcome of the investigation. Check back for future updates on the case.

By: Suzanne Dershowitz
Public Policy Fellow, POGO

suzanne dershowitz At the time of publication Suzie Dershowitz was a public policy fellow for the Project On Government Oversight.

Topics: Whistleblower Protections

Related Content: Office of Special Counsel

Authors: Suzanne Dershowitz

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