Mark Hammer

What you want is the “double feature”: the report released today, and the report in early December last year, entitled “Whistleblower Protections for Federal Employees“.

One of the things the earlier report makes rather clear is that the laws surrounding disclosure of wrongdoing are frequently not well understood by federal employees. Enough such that a great many things brought forward by employees are deemed to not be disclosures of wrongdoing. In some instances they do not fit the criteria for a “disclosure”. In other instances they do not fit the criteria for a “wrongdoing”. As such, the individuals are not protected by law against reprisals, because there has to be a disclosure of wrongdoing for there to be protection.

Many presumed disclosures fall under the general category of what are termed “debatable managerial decisions”. That is, the employee may believe that a manager has done something that they consider unethical, or a reckless expenditure, but it falls under the legal authorities of the manager, and is not illegal, strictly speaking, or an endangerment to the agency being able to accomplish its mandate, so it can not be considered a “wrongdoing”.

I fully understand the need for whistleblower legislation to balance off the needs well-meaning employees to bring the unethical and irresponsible to light, with the needs of management to be able to take decisions without having to constantly fear disruptive actions by staff who may not understand the reasoning behind the decision. But, insomuch as there exist a great many scenarios where federal employees may mistakenly believe they have the force of law behind them but they actually fall through the cracks in the law, small wonder then that many employees might perceive the prospect of “it will all be for nothing” as a deterrent.

This perceived deterrent, however, is – to my way of thinking at least – not so much a result of the laws, or of the intransigence of their management or the mechanisms of recourse (though I am not discounting that), but rather of the widespread misunderstanding of what the law does and does not cover. I am not blaming the victim, since it may easily be the case that employers have not done enough to articulate what the law does and does not cover in a comprehensible manner, and on a regular basis for all those new employees. But ultimately, if you’re going to continue to have faith in the system, you’re going to need to have reasonable and realistic expectations about the system, and that takes effective communication in addition to eager learners.

In any event, if you are tempted to read the recent report, do yourself a favour and read the other one first. Good stuff and a shining example of money well spent on MSPB.