By Kent R. Kroeger (March 3, 2020)
The first thing you learn when you work in an Office of the Inspector General (OIG) is that a whistleblower’s grievances should be addressed at the lowest level possible.
Why? Two reasons: For one, in most cases, the supervisors closest to the whistleblower’s complaint are generally willing to solve it. Like most people, they want to do the right thing. Secondly, some OIG offices (and their cousins, Offices of the Special Counsel) will receive thousands of whistleblower complaints each year. With investigatory staffs usually numbering less than 30, it is simply impossible to address every whistleblower complaint. Even a thoughtful triage process used to filter down to the most serious whistleblower issues will still leave a case load too large for the average IG office.
If IG and Special Counsel (SC) offices were staffed to handle all whistleblower complaints, the majority of federal government activities would be reduced to investigating itself.
Problems are best solved at the lowest level possible. [In general, that’s a good rule in life.]
In my experience at the Defense Intelligence Agency’s Office of the Inspector General (DIA-OIG), in only a small minority of cases did a Federal employee abuse his or her power in a deliberate and corrosive manner.
Yes, we have the case of a Federal employee using his government credit card to buy breast implants for his girlfriend. That is the wrong use of the government credit card. That shouldn’t require any additional explanation.
But, in most cases, Federal employees who circumvent established rules and regulations, do so either out of ignorance or with honorable intentions — in the latter case, often with a desire to grease (or avoid) the imposing, excessively bureaucratic, gears of government. That is not an excuse, but it does explain most of the law, rule and regulation violations I witnessed.
So when whistleblowers formally lodge complaints against their supervisors or chain of command, it can never be taken lightly, even as it must be placed in a broader perspective. Good people sometimes break the rules.
But my IG office also had to deal with some federal employees misusing the whistleblower laws to lodge personal complaints about supervisors and other employees.
A now-retired Deputy Inspector General in the U.S. intelligence community (USIC) would frequently remind us that whistleblower laws are not designed to address every single employee-supervisor grievance.
They are intended to protect employees from retaliation for calling out substantive violations of law, rules, and regulations. The Whistleblower Protection Act of 1998 (WPA) protects Federal employees and applicants for employment who lawfully disclose information they reasonably believe evidences:
- a violation of law, rule, or regulation;
- gross mismanagement;
- a gross waste of funds;
- an abuse of authority;
- or a substantial and specific danger to public health or safety.
Under the WPA, certain Federal employees may not take or fail to take, or threaten to take or fail to take; any personnel action against an employee or applicant for employment because of the employee or applicant’s protected whistleblowing. The Whistleblower Protection Enhancement Act (WPEA) of 2012 further strengthened those protections for Federal whistleblowers.
The WPA/WPEA legal protections have entered the public spotlight recently, first with a whistleblower complaint regarding a phone call between President Donald Trump and Ukrainian President Volodymyr Zelensky, and more recently with a whistleblower complaint regarding unsafe work conditions within the U.S. Department of Health and Human Services (HHS) as it dealt with the ongoing coronavirus crisis.
According to the February 27th Washington Post story:
“Officials at the Department of Health and Human Services sent more than a dozen workers to receive the first Americans evacuated from Wuhan, China, the epicenter of the coronavirus outbreak, without proper training for infection control or appropriate protective gear, according to a whistleblower complaint.
About 14 personnel from the Administration for Children and Families, or ACF, were sent to March Air Force base in Riverside County, Calif., and another team of about 13 ACF personnel were sent to Travis Air Force in Solano County, Calif., according to the complaint and the whistleblower’s lawyer, Ari Wilkenfeld.
The (ACF) deployments took place Jan. 28 to 31, around the time when the first planeload of evacuees arrived at March, and Feb. 2 to Feb. 7, during the time when additional flights were arriving at Travis. The planes each carried about 200 Americans who were repatriated from Wuhan.
The (ACF) workers did not show symptoms of infection and were not tested for the virus, according to lawyers for the whistleblower, a senior HHS official based in Washington who oversees workers at the Administration for Children and Families, a unit within HHS.
In some instances, the (ACF) teams were working alongside personnel from the Centers for Disease Control and Prevention in “full gown, gloves and hazmat attire,” the complaint said.
The whistleblower is seeking federal protection, alleging she was unfairly and improperly reassigned after raising concerns about the safety of these workers to HHS officials, including those within the office of Health and Human Services Secretary Alex Azar. She was told Feb. 19 that if she does not accept the new position in 15 days, which is March 5, she would be terminated.”
The whistleblower’s complaint was filed February 26th with the Office of the Special Counsel (OSC), an independent federal investigative and prosecutorial agency whose “primary mission is to protect federal employees and applicants from prohibited personnel practices, especially for whistleblowing.”
There is no reason to doubt the charges made by the HHS whistleblower. In fact, the idea that a federal government agency would send its own personnel into a dangerous situation without proper training or equipment sounds way too familiar.
But the whistleblower complaint raises a number of red flags for me.
Firstly, there were only seven days between the HHS whistleblower being told they would be reassigned or terminated and the filing of the complaint with the OSC. Just seven days.
Having been the OIG statistician assigned with tracking whistleblower complaints, my experience was that such actions worked on timelines measured in months, not days.
It is likely powerful forces pushed this complaint up the flag pole.
Secondly, the day after filing the complaint with the OSC, the whistleblower’s lawyers provide the Washington Post with a redacted version of the 24-page complaint. Another red flag for an OIG or OSC adjudicating a whistleblower complaint. Why would a whistleblower release their complaint to the national news media a day after they filed the same complaint with an OSC?
As with the first red flag, this accelerated timeline also suggests a level of political coordination far beyond anything a typical federal employee would have at their disposal. Add the frenzy the HHS whistleblower put the anti-Trump media into and it begins to cast doubt on the motivation behind her complaint.
Thirdly, the whistleblower’s core complaint centered on employee safety; such that, it should have been handled through Occupational Safety and Health Administration (OSHA) channels, not an OSC or OIG. And while there is a definite public safety element to the HHS whistleblower complaint — which the WPA specifically cites as grounds for whistleblower disclosures — OSHA experts would have been more qualified than OSC lawyers to address the imminent risks posed by poorly-trained, unprotected HHS employees processing Americans arriving from Wuhan, China.
Finally, the Washington Post story begs a more troubling question: How is it possible Center for Disease Control (CDC) personnel, in full hazmat gear, could work side-by-side with improperly equipped HHS personnel and not correct the situation on the spot? Under Federal guidelines for infectious disease control, the CDC personnel should have been in operational control of the situation at March Air Force Base and Travis Air Force Base.
Somebody dropped the ball, but it wasn’t just HHS/ACF leadership.
The HHS/ACF staff never should have been in situations like those they faced at March and Travis Air Force Bases in late-January and early-February. The ‘all-hands-on-deck’ directive — which many civil servants use to justify deployments to dangerous hot zones — is not a free ticket to ignore federally-mandated safety protocols, which is apparently what HHS/ACF personnel did.
The circumstantial evidence suggests the HHS whistleblower was powered by forces beyond her simple professional interests.
And what were those forces? Most likely, ill-intended partisan forces.
Why does this matter?
If hyper-partisanship is allowed to drive whistleblower grievances, the legal protections provided to whistleblowers — and the IG/SC budgets needed to enforce them — could be irreparably threatened. A party out of power will inevitably seek retribution when they regain power — also known as the Third Law of Politics: For every partisan action in government, at the next turnover in party control of the government, there is an equal and opposite partisan reaction.
This tit-for-tat political dynamic never seems to impact corporate tax law, banking regulations and defense spending, but on other government matters, it can stop the march of progress like a block in the pit-entrance to a theater.
In no way am I suggesting the HHS whistleblower’s complaint is illegitimate. Quite the opposite, the complaint appears to be of such an urgent public health matter that it needed to be handled as impartially as possible — particularly in the context of Washington, D.C.’s highly-partisan political environment where the power of motivated bureaucrats and politicians to gum up the works is well-known.
As it was handled, the apparent politicization of the HHS whistleblower’s complaint significantly jeopardizes its successful and timely resolution.
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