A tradition of transparency...
In 1777, months after the signing of the Declaration of Independence, Samuel Shaw, whose image is incorporated into the TOTTM, inc. logo and several of his comrades became the first recorded American whistleblowers. The target: Esek Hopkins, a Rhode Island elite, his brother having served as governor of Rhode Island, a signatory to the Declaration of Independence, and member of the Continental Congress. Hopkins, known for "inhuman and barbarous" treatment of British prisoners of war, would have Shaw and his ilk arrested in retaliation after being relieved from his position as commodore of the United States Navy. Samuel Shaw and Richard Marven would be arrested and held without bail.
On July 23, 1778, Shaw and Marven petitioned the Congress for their release. Within just seven days, Congress issued what is believed to be the first enactment reasonably described as whistleblower protections:
Resolved, That it is the duty of all persons in the service of the United States, as well as all other the inhabitants thereof, to give the earliest information to Congress or other proper authority of any misconduct, frauds or misdemeanors committed by any officers or persons in the service of these states, which may come to their knowledge.
Thus, the United States' tradition of transparency in governance was born.
The Whistleblower Protection Act of 1989 (5 U.S.C. § 1201, et seq.)
Introduced by the Democratic Senator from Michigan, Carl Levin, and signed into law by President George H.W. Bush on April 10, 1989, the Whistleblower Protection Act of 1989 ("WPA") created codified protections for executive branch employees who report "fraud, waste, abuse, and unnecessary Government expenditures" (sic.). The WPA did three essential things:
- it codified executive branch employees' roles in shining a light on fraud, waste, abuse, etc., while affirming "that employees should not suffer adverse consequences as a result of prohibited personnel practices";
- it established the U.S. Office of the Special Counsel, the sole role of which, then, was to receive whistleblower disclosures and defend executive branch employees from retaliation for making such disclosures; and
- it vested original jurisdiction to hear allegations of whistleblower retaliation in the U.S. Merit System Protections Board ("MSPB").
For whatever good intent led to the drafting and enactment of the WPA, it was not without its set of flaws. Federal judges, acting as activists against the legislation, established multiple loopholes.
- In Horton v. Dep't of Navy, 66 F.3d 279, 282 (Fed. Cir. 1995), the Court of Appeals for the Federal Circuit decided that a disclosure to the individual whose conduct is at issue was not the type of disclosure that would afford a federal employee protection under the WPA;
- in Willis v. Dep't of Agric., 141 F.3d 1139 (Fed. Cir. 1998), the U.S. Court of Appeals for the Federal Circuit ruled that a protected disclosure cannot arise from the ordinary conduct of an executive branch employees' position—i.e., reports of a conservationist for the U.S. Department of Agriculture of non-compliance by non-compliance by regulated farms was part of his job and, therefore, not a protected disclosure; and
- in Meuwissen v. Dep't of Interior, 234 F.3d 9 (Fed. Cir. 2000), the U.S. Court of Appeals for the Federal Circuit ruled disclosures of information which was publicly available was not a disclosure within the meaning of the WPA.
In its September 2010 report, "Whistleblower Protections for Federal Employees", the MSPB set out the legal standards, inclusive, necessary to establish a claim of whistleblower retaliation. The following year, during November 2011, the MSPB released a scathing review of WPA enforcement in a report entitled "Blowing the Whistle: Barriers to Federal Employees Making Disclosures.".The MSPB specifically found that "[i]n both 1992 and 2010, approximately one-third of the individuals who felt they had been identified as a source of a report of wrongdoing also perceived either threats or acts of reprisal, or both." Federal agencies, the MSPB opined, were doing too little to train employees on their rights and protections despite being required to provide such training under the WPA.
The Whistleblower Protection Enhancements Act of 2012
On April 6, 2011, Democratic Senator from Hawaii, Daniel Akaka, ultimately incorporating provisions of an alternative bill which died in the U.S. House but was reintroduced by Republic Representative Darrell Issa in November 2011, introduced what would become the Whistleblower Protection Enhancement Act of 2012 ("WPEA"). It was signed into law on November 27, 2012, by President Barack H. Obama. The WPEA was intended to fix the loopholes dugout by the MSPB and federal judiciary.
Namely, the WPEA:
- Changed the definitions of disclosures to include: "the exercise of any appeal, complaint, or grievance right granted by any law, rule, or regulation," providing "testimony" or assisting others in an investigation, etc.;
- clarified that disclosures are protected regardless of to whom they are made, whether it was previously disclosed or otherwise public information, whether in writing, regardless of motive, and regardless of whether the information disclosed was discovered in the ordinary course of business; and
- gave the U.S. Office of Special Counsel latitude to seek punitive sanctions against the official responsible for the retaliatory conduct, not to exceed $1,000, and/or suspension, reduction in pay, reduction in pay grade, demotion, or termination.
It is the current law pertaining to protection for whistleblowers.