Every Friday on GovExec.com, Legal Briefs reviews cases that involve, or provide valuable lessons to, federal managers. We report on the decisions of a wide range of review panels, including the Merit Systems Protection Board, the Federal Labor Relations Authority and federal courts.
The Merit Systems Protection Board recently reversed itself and expanded its definition of who is protected by the Whistleblower Protection Act.
The decision stemmed from an allegation that an employee at the Interior Department was given special treatment when she was promoted.
Sandra Ganski, an employee of Pennsylvania's Valley Forge National Park, was surprised when her supervisor was selected for an administrative position that was never advertised or posted. Ganski observed that agency heads created a temporary position for her boss so that they could then non-competitively convert her to permanent status.
Ganski expressed her concerns to senior management. Later on, she was passed up for a promotion and suspended for fourteen days. That, Ganski said, was a clear case of whistleblower retaliation.
But when her case was brought before MSPB in 1999, the board ruled that her disclosures weren't protected by the Whistleblower Protection Act because they were "not the type of fraud, waste or abuse that the [act] was designed to protect."
At that time, MSPB said the act protected disclosures of gross waste of funds, abuse of authority or a substantial and specific danger to public health or safety, but not violations of rules that govern personnel practices.
The Office of Special Counsel (OSC) took an interest in the case, and petitioned the Justice Department, which represented Interior, to support the reversal of MSPB's decision.
With a little finagling by OSC, Justice prepared to take the completely unexpected step of siding with Ganski-but then it didn't have to.
The board earlier this month reversed its initial decision. MSPB's final word: a disclosure of violation of any law, rule or regulation is protected under the Whistleblower Protection Act.
"The board's decision properly rejected any narrowing of the Whistleblower Protection Act's scope," said Special Counsel Elaine Kaplan. "Ms. Ganski's disclosures involve precisely the sorts of public interests which the [act] was designed to serve."
Lesson:Whistleblowing-It's not just for fraud any more.
Ganksi v. Department of Interior, Merit Systems Protection Board (MSPB No. PH-1221-98-0111-M-1), May 4, 2000.
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