The 'Dangerous, Scary Trend' in Retaliation Against Whistleblowers: Criminal Probes

In the 18 months since enactment of the Whistleblower Protection Enhancement Act, agency managers may have shifted to a new tactic for retaliating against employees who’ve embarrassed them with reports of alleged wrongdoing, according to whistleblower advocates.

Increasingly, criminal investigations are being launched at agencies ranging from the Internal Revenue Service, to the Homeland Security Department, to the Nuclear Regulatory Commission, in place of more traditional acts of retaliation such as firing, demotion and undesirable assignments, said Tom Devine, legal director for the nonprofit Government Accountability Project, at a Wednesday panel discussion on Capitol Hill.

“What formerly were rare exceptions are now the rule-- instead of firing someone, you force them out of government through criminal investigations or actual prosecutions that affect their prospects for future federal employment, “ Devine said. “It’s a dangerous, scary trend that’s likely to get worse because it’s an attractive option.”

Whereas the firing process can take two years of going through the human resources and editing documents, Devine added, “all a criminal investigation takes is one bully to give the suspect the third degree. It doesn’t risk anything -- the manager decides when the harassment ends, and sometimes they then open up a new probe. The threat of jail has a more chilling effect.”

Devine cited former Transportation Security Administration air marshal Robert MacLean (who was in the audience), whose retaliation case against the Homeland Security Department remains in courts a decade after he went public with TSA’s plans to reduce air marshal coverage of flights. And Devine cited a NRC safety expert who blew the whistle on nuclear risks who was told by his union representative to plead guilty and who might have spent $100,000 on legal defense if his case hadn’t been dismissed.

Tristan Leavitt, an investigative counsel for the Senate Judiciary Committee whose boss, Sen. Chuck Grassley, R-Iowa, is considered a champion among whistleblower advocates, compared agency retaliation tactics to “a squishy ball. You squeeze in one place and something pops out the other side as agencies think of creative new ways to retaliate.” After Congress tightened protections against common personnel actions such as demotion, he said, it has become clear that “an administrative investigation can easily morph into a criminal investigation.” But the “competing consideration,” he added, is that “we don’t want to make it impossible to fire a bad government employee.”

What Congress might consider next, Leavitt said, is expanding a provision in the 2012 whistleblower law that permits the Office of Special Counsel to award back pay and legal fees to whistleblowers whose claims are vindicated. The expansion could include inappropriate investigations as one of the triggers for protection, and could happen during reauthorization of OSC and the Merit Systems Protection Board, he said.

Pete Sepp, executive vice president of the National Taxpayers Union, complained of a decades-old “criminal investigation effect” at the IRS, in which the tax agency “uses a strategy of employing criminal investigations to create a culture of intimidation of the taxpayer,” a strategy, he said, that his group documented from whistleblowers inside IRS.

Surveys, he said, reveal “a perception that an audit notice can get you sent to jail, and even a small number of investigations can have a terrible effect. Sepp acknowledged, however, that the actual numbers of IRS criminal investigations are small. In fiscal 2013, IRS launched 4,300 such investigations, 1.3 million audits, and incarcerated 1,700 for tax crimes. That’s against a more sizable 33 million civil penalties on businesses and individuals, Sepp reported, but the criminal probes have “public relations value in creating a culture of fear among taxpayers.”

He expressed hope for some reforms of IRS after the politics of the current controversy over alleged political targeting of conservative nonprofits “simmer down.”

Asked why federal managers retaliate against whistleblowers, Leavitt said, “It’s human nature that when someone calls you out, you tend to want to minimize it, massage it. And it’s a lack of education on WPEA-- they don’t think in legal terms.”

Devine attributed retaliation to “a desire of a government official who feels insecure to eliminate a threat as easily as possible with as much impact as possible. He or she has “nothing to lose,” he added, and the goal is to make an example” of the whistleblower.

(Image via Alina Ku-Ku/Shutterstock.com)