I’ve often wondered if those in high level decision-making capacities (including lawyers), have a guilty conscience since they know they are part of a conspiracy to violate employee protection laws. I also wonder if they hear their inner voice telling them not to take part in harm to others. And I wonder if they abandon basic ethical and moral norms for money and position to justify their decisions when they fully know they’ve just cut short the careers of those who exhibit courage to tell the truth about fraud, waste, mismanagement, abuse of authority and dangers to public health and safety.
Well, I don’t have to wonder any longer because a key decision maker who played a significant role in aiding the federal government in whistleblower retaliation against their own employees has emerged from a crisis of conscience coma. Former chairman of the Merit System Protection Board (MSPB) Neil McPhie published an article yesterday concerning the Robert MacLean v. Department of Homeland Security (DHS) case.
The title of McPhie’s article “Federal Employees Have Nothing to Fear but Their Agencies” is bothersome because it was his decision to rule against MacLean in 2009, thus, affirming agency removal of a man who alerted the public that air marshals would not be aboard domestic flights post 9/11. Air marshals flights were cancelled due to financial mismanagement of the agency which left the flying public exposed to terrorists being able to board planes. Congressional outrage halted the ill-conceived plan by the Transportation Safety Administration (TSA) due to MacLean’s protected whistleblower disclosures. MacLean made the disclosure in 2003. He was removed from federal service in 2006.
In the 2009 ruling by the MSPB, McPhie declared “Based upon the foregoing, we find that a disclosure in violation of the regulations governing SSI, which were promulgated pursuant to 49 U.S.C. § 114(s), is ‘prohibited by law’ within the meaning of 5 U.S.C. § 2302(b)(8)(A) and thus cannot give rise to whistleblower protection.” That decision by McPhie and Mary Rose, Vice Chairman cast MacLean into an extra 4 years of litigation hell until a win last year that became the basis of the government’s refusal to acknowledge the Court of Appeals ruling which led to the certiorari request.
It appears the former chairman of the agency that supported whistleblower retaliation by federal agencies has had a change of mind and heart seeing the error of his ways. Or maybe it’s the change of income stream to setting up shop as a whistleblower protector from the federal government because he’s done a 180 declaring; “Here you have the government fighting to water down the protections provided to employees under the Whistleblower Protection Act of 1989 (WPA).”
I’m glad McPhie is supporting MacLean of late, but don’t understand how he justifies the flip-flop. Did he think no one would notice it was his decision that single-handedly aided the agency in sustaining the removal of MacLean, leaving the whistleblower jobless, unemployable, with a wife and 2 small children to support. Meanwhile McPhie retired from federal service with a full pension to go on to be a partner in a D.C. law firm. That pension must be cold comfort knowing you’ve stripped MacLean of his.
Crisis of conscience coma or awakening of altruism, McPhie, in my humble opinion, made an admittedly bad decision in 2009 and poor choice to publish an article about the MacLean case without fully disclosing to the public that he aided agency retaliation and the firing of hundreds federal whistleblowers. One could also attribute direct and indirect harm to the American public by McPhie because as he so aptly pointed out in his article that whistleblowers “said they could not blow the whistle without fear of retaliation.” It was his work as a federal employee that caused the fear.
No kidding Mr. McPhie-Did that revelation about federal employees fearing retaliation just come to you yesterday? If so, apparently you weren’t reading the briefs by appellants who cried for help at the MSPB level as they lost their jobs, their homes, their families and could not find paid work again because their employment records were falsified with trumped-up charges of insubordination or failure to follow an order or disclosed bad management decisions that led to dangers to public health and safety… If McPhie wants to help the cause now, he might represent whistleblowers reverse the damage urging the MSPB to reopen cases citing the Whistleblower Protection Act (WPA) was willingly ignored under his watch with all costs going to the appellants.
There are costs associated with a crisis of conscience and a lack of moral integrity to society. Direct costs to the whistleblowers like losing their livelihoods and indirect costs such as children of whistleblowers not being able to go to college because their parents are bankrupt. And there are costs to tax payers for needless government litigation that lingers for years. Part of those costs are 3 federal agencies that handle federal service employee cases of discrimination and retaliation; OSC, MSPB and the EEOC for the federal sector. And the overburdened courts which have to hear these cases that clearly show whistleblower retaliation and violations of civil rights.
Then there are several federal agencies which in large part exist because of whistleblowers including the SEC, the CFPB, OSHA, and many departmental OIG’s including HHS, DVA, DoD and DOJ where civil rights should be sacrosant. If federal agencies discourage following your conscience, fraud is afoot in financial markets. A drug labeled for an adult will kill a child when the manufacturer disregards the FDA approvals. And a terrorist will board a plane because they know no federal employee is going to speak up because they live in fear of pointing out a problem and suffering whistleblower retaliation.
It’s time we all examined our conscience and listened to our inner voice that whistleblowers are protecting us thus they deserve to be protected. Whistleblowers are part of our heritage as Americans and those that speak truth to power represent our collective social consciousness. We must review whether we are part of the retaliation problem or part of the employment rights protection solution. The Supreme Court should rule in MacLean’s favor and help heal a country that has been ethically challenged mainly because our government as employer role model lacks leadership with a conscience.
*In the interest of full disclosure, the author filed a whistleblower retaliation case at MSPB in 2008 and sought redress from the full Board in 2009. The case was settled.