Will a barely noticed report from a little federal agency about whistleblower retaliation have larger implications after the Trump era begins next month?
That question can’t be answered now, but there is concern among whistleblower advocates who find both comfort and warning signals in an Office of Special Counsel (OSC) case.
OSC investigates reprisals against federal whistleblowers. There are far too many acts of revenge, but “the unique aspect of this case is the third-party element,” said Special Counsel Carolyn Lerner.
Agency retributions against employees generally don’t involve retaliation on behalf of an outside party. That’s behind what OSC says the Bureau of Indian Affairs (BIA) did to an unidentified staffer after he complained that oil and gas lease agreements between energy companies and the Southern Ute Indian Tribe in Colorado appeared to violate BIA regulations and environmental laws.
“The employee’s disclosures angered a Native American tribe, and the tribe put pressure on the highest levels of BIA and the Interior Department to reassign the employee from the BIA’s office on the tribe’s reservation,” read an OSC statement last week. BIA fired the employee in 2013. He was reinstated with back wages and compensatory payments in an agreement OSC negotiated.
In normal times, this case might not make this column. But Donald Trump’s electoral college victory makes these times abnormal. With the president-elect’s extensive business and financial holdings, this case could have larger implications. There’s been much attention to potential conflicts for Trump and his family. Yet, his businesses could present conflicts for federal employees, too.
For example, if Trump doesn’t completely divest his business operations and one violated federal regulations, would agency staffers hesitate to impose enforcement actions that could harm the boss’s financial interests? If the regulations were not enforced, would workers fear being retaliated against for disclosing that dereliction of duty?
In BIA’s case, the “failure to defend its employee and, instead, to cave to a retaliatory demand is a PPP (prohibited personnel practice),” OSC’s 17-page report said. “The chilling effect is clear: BIA employees are silenced from disclosing violations of law if they anticipate that such disclosures will be unpalatable to a Tribe and that BIA will simply bend to the Tribe’s will.”
Lerner told The Washington Post that “federal managers need to abide by merit system principles, even when there is outside pressure to retaliate. It’s important for the federal workforce to know about this case to help deter future acts of retaliation. It’s vital that federal managers protect employees who anger outside interests when they uncover potential wrongdoing as a part of their job.”