Tuesday, November 7, 2017

Small Steps Toward Greater Whistleblower Protections

On October 26, 2017, the Dr. Chris Kirkpatrick Whistleblower Protection Act of 2017 became law. Officially referenced as Pub. L. 115-73, this statute had tragic origins: Dr. Kirkpatrick was fired from the Tomah Veterans Affairs Medical Center after he blew the whistle on how his patients were receiving disturbingly high doses of drugs that prevented him from providing them with proper psychiatric treatment. After Dr. Kirkpatrick gathered his personal belongings, he secured care for his dog, wrote to tell his girlfriend he loved her, and committed suicide. The Veterans Administration never investigated Dr. Kirkpatrick’s death.

In response, Congress enacted the following changes:
  1. Under Sec. 102, when the Merit Systems Protection Board (“MSPB”) stays an action proposed against a potential whistleblower, including probationary employees, the head of the employing agency must give priority to any request for a transfer by the employee. Additionally, the Comptroller General of the United States must submit a report on the subject of retaliation against probationary employees.
  2. Under Sec. 103, a new prohibited personnel action is added to forbid agencies from accessing the medical records of employees or applicants in furtherance of the original 13 prohibited personnel practices.
  3. Under Sec. 104, if a supervisor is found to have retaliated against a whistleblower, the head of the employing agency must, at minimum, propose a 3-day suspension for a first offense, and must propose the supervisor’s removal from federal service after a second offense. 
  4. Under Sec. 105, if a whistleblower commits suicide, the head of the agency must refer this information, as well as any information in its possession relating to the circumstances of the suicide, to the Office of Special Counsel, who will examine whether the whistleblower had been retaliated against and who will take any action it deems appropriate within its authority.
  5. Under Sec. 106, agencies must provide training on handling complaints of whistleblower retaliation to all new supervisors and to all supervisors on an annual basis.
  6. Under Sec. 107, the heads of covered agencies are responsible for preventing retaliation against whistleblowers and for ensuring that employees are informed of their rights and the available avenues for relief. 
The Dr. Chris Kirkpatrick Whistleblower Protection Act of 2017 became law after passing unanimously in both houses of Congress. The Senate Report notes that Special Counsel Lerner cited numerous examples of the VA failing to discipline officials found responsible for posing significant risks to public health and safety or engaging in other misconduct. Special Counsel Lerner added that this lack of discipline “stand[s] in stark contrast to disciplinary actions taken against VA whistleblowers . . . for minor indiscretions or for activity directly related to the employee’s whistleblowing.”

Astoundingly, this is not the first time that it took the death of a whistleblower to instigate much needed change: we have previously written about the Kate Puzey Peace Corps Volunteer Protection Act of 2011, which was enacted after Peace Corps Volunteer Kate Puzey was brutally murdered in retaliation for her whistleblowing about sexual assaults.

Even now, our intelligence community whistleblowers are exempt from many protections that other federal employees enjoy. On the very day that the Dr. Chris Kirkpatrick Whistleblower Protection Act of 2017 became law, the Federal Circuit issued Parkinson v. Department of Justice, which denied preference-eligible (veteran) FBI employees who face retaliation for whistleblowing any recourse to the MSPB. Parkinson is a stark reminder that while Congress has made small steps towards greater protection, more remains to be done. Let it be before any more lives are lost.

By Nina Ren



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