Mark Hammer

The weak link in all of this is what gets summarized in the MSPB report as “debatable managerial decisions”. That is, something which the employee may think is an outrageous expenditure or potentially contrary to the public interest or simply very “unwise”, but is within the legal authorities of the manager. The manager may well have done something unbelievably stupid or dangerous or costly, but if they haven’t broken a law or exceeded their authorities, then the employee’s outrage is not protected by law. Moreover, if the employee simply won’t shut up about it – regardless of how much you or I or Joe Davidson thinks they ought to be making a stink – and the manager does what they can to remove what they perceive to be a nuisance and obstacle to their approved decision, the courts are highly unlikely to treat such “banishment” as a reprisal for whistleblowing, because there was nothing to blow the whistle on in the first place. Technically, the actions against the employee, unless particularly aggregious, are not a “reprisal” unless directly connectable to a legitimate act of disclosure of wrongdoing. You can read all about the relevant jurisprudence in the report.

This is precisely why I continually harp on and on about avoiding the need for whistleblowing. The law is remarkably unsatisfying when it comes to dealing with such in-betweenie cases. The principal reason, I believe, is not because nobody wants to protect whistleblowers, but rather because it has the dual obligation of not only protecting the whistleblower but of protecting the manager who is “just doing their job” from frivolous or misguided intrusions into their work. And, as much as we hate to admit it, BOTH of those goals are in the public interest.

Let us say one happens to be a manager, and decides to go with a particular contractor for some purchase or service. There may be other providers who are cheaper, but this company has provided services before, knows your operation well, and even though they’re pricier, you won’t be wasting time bringing them up to speed. Moreover, the company has a crack legal team, and if you reneg, whatever you save in going with the other bid will end up costing you when it comes to penalties for cancelling contracts. To top it off, there is pressure from the Secretary and the Undersecretary to “just get the damn thing started”, so time matters more than money at head office. An employee catches wind of who gets the contract, and the inside scoop that there was a much lower bid. They treat it as a “rigged” bidding process, costing needless tax money, and are outraged. They make an ongoing big deal of it, writing letters to the editor, asking hostile questions at meetings, and you just want to move forward.

This is a rather untenable situation. The employee is dissatisfied, and the manager feels harassed. One fixes it not by providing iron-clad assurances of protection post hoc, but by fostering a more consultative and transparent work culture. YOU, as manager, tell me what you’re deciding to do, and the rationale, including all those politically uncomfortable contingencies, so that I, as employee, am more predisposed to think “Well, I don’t necessarily agree, but I can see why he/she opted for that”. YOU, as manager, consult more broadly, and actually take suggestions into account, so that nobody is given to think “I told the guy, but he wouldn’t listen”.

If someone is actually going to do something criminal or outside their authorities, then they won’t tell you about it, or ask your opinion, and if under those circumstances you blow the whistle, there should be no surprises with respect to the level of protection received. The trick is to develop a culture where the only things that end up being disclosed are accurately-identified cases of wrongdoing or acting outside legal authorities. Those are the things that the law handles with aplomb.