BBG lawyer wrongly claimed employees disclosing wrongdoing to the press are not protected whistleblowers
BBG Watch Commentary
The Broadcasting Board of Governors (BBG) Deputy General Counsel Paul Kollmer-Dorsey made the following statement at the recent BBG open board meeting while challenging arguments from BBG member Victor Ashe who demanded that the resolution designed to restrict the disclosure of deliberative board information include a statement that the rights and protections of agency whistleblowers will not be affected by the proposed non-disclosure protocol:
BBG DEPUTY GENERAL COUNSEL PAUL KOLLMER-DORSEY: “As far as whistleblowing is concerned, if I may, whistleblowing has a very specific meaning. It means reporting wrongdoing to a law enforcement body. It doesn’t mean disclosing something to the press, or something like that. I would find it difficult, I would be surprising myself if someone were to engage in whistleblowing and then the Board decided that it would punish that Governor, punish that staff member for having done that.”
When the BBG first published the non-disclosure resolution online, it did not include a reference to the protection of the rights of whistleblowers even though BBG members unanimously adopted an amendment proposed by Governor Ashe that such a reference be included in the final text of the resolution.
The resolution, as published on the BBG website, did include, however, the following warning to BBG employees:
Disclosure of deliberative information is a serious matter and constitutes both mismanagement and misconduct. The unauthorized disclosure of official non-public information is prohibited by 5 CFR 2635.703, and employees engaging in the unauthorized disclosure of deliberative information may be subject to punishment or discipline.
This warning combined with the initial omission of the board’s vote to include the whistleblowing protection language in the non-disclosure resolution, and Mr. Kollmer-Dorsey public assertion in an open board meeting that “whistleblowing has a very specific meaning” and applies to “reporting wrongdoing to a law enforcement body,” but “it doesn’t mean disclosing something to the press” will likely have a very chilling effect on BBG employees wanting to disclose wrongdoing at the agency, in addition to suppressing open debate of policies and management practices, intimidating employees and diminishing even further already dismal employee morale at the Broadcasting Board of Governors and its various entities.
Moreover, it appears from reading the Whistleblower Protection Act of 1989, subsequent court cases, and official government statements that Mr. Kollmer-Dorsey was wrong when he said that whistleblowing in the federal government does not mean “disclosing something to the press.”
The Whistleblower Protection Act of 1989 includes the following language:
Sec. 1213. Provisions relating to disclosures of violations of law, gross mismanagement, and certain other matters
(a) This section applies with respect to–
(1) any [emphasis added] disclosure of information by an employee, former employee, or applicant for employment which the employee, former employee, or applicant reasonably believes evidences–
(A) a violation of any law, rule, or regulation; or
(B) gross mismanagement, a gross waste of funds, an abuse of authority, or a substantial and specific danger to public health or safety;
if such disclosure is not specifically prohibited by law and if such information is not specifically required by Executive order to be kept secret in the interest of national defense or the conduct of foreign affairs; and
(2) any disclosure by an employee, former employee, or applicant for employment to the Special Counsel or to the Inspector General of an agency or another employee designated by the head of the agency to receive such disclosures of information which the employee, former employee, or applicant reasonably believes evidences–
(A) a violation of any law, rule, or regulation; or
(B) gross mismanagement, a gross waste of funds, an abuse of authority, or a substantial and specific danger to public health or safety.
Any means any, in our view, as well as in the opinion of the U.S. Congress which passed the law.
The U.S. Merit Systems Protection Board, which reviews whistleblower appeals from adverse retaliatory personnel actions, also states that:
You are also protected if you make such a disclosure to any other individual or organization (e.g., a Congessional committee or the media) provided that the disclosure is not specifically prohibited.
That appears to be quite different from what the BBG Deputy General Counsel Mr. Kollmer-Dorsey said in a public meeting, which BBG employees were able to watch online and may have been intimidated and thus more likely to keep silent about mismanagement and wrongdoing at the agency. The BBG should admit the mistake and apologize to its employees. During the meeting in Prague, Ambassador Victor Ashe rightly pointed out that the non-disclosure resolution was hastily drafted, kept from being shared with him and others, and not subjected to a proper vetting of any kind.
Legal citations are provided for informational and educational purposes only.
Disclaimer: BBG Watch DOES NOT offer legal advice. If you require legal advice, you must contact a qualified attorney. Employees and others should not make any decisions based on the information provided in this post without consulting with an attorney.
5 U.S.C. § 2302(b)(8).
“The purpose of the Whistleblower Protection Act is to encourage disclosure of wrongdoing to persons who may be in a position to act to remedy it, either directly by management authority, or indirectly as in disclosure to the press.” Horton v. Dep’t of the Navy, 66 F.3d 279, 282 (Fed. Cir. 1995).
“As indicated above, the plain language of the Whistleblower Protection Act extends to retaliation for “any disclosure”, regardless of the setting of the disclosure, the form of the disclosure, or the person to whom the disclosure is made.” S.Rep. No. 103-358, at 11 (1994), reprinted in 1994 U.S.C.C.A.N. 3549, 3559.
“‘[A]ny’ means ‘any.’ The WPA protects “any” disclosure evidencing a reasonable belief of specified misconduct… . The only restrictions are for classified information or material the release of which is specifically prohibited by statute.” H.R. Rep. 103-769, at 19 (1994..
You are protected if you make such a disclosure to the Special Counsel, the Inspector General of an agency, or another employee designated by an agency head to receive such disclosures. You are also protected if you make such a disclosure to any other individual or organization (e.g., a congressional committee or the media), provided that the disclosure is not specifically prohibited by law and the information does not have to be kept secret in the interest of national defense or the conduct of foreign affairs.
U.S. Merit Systems Protection Board, Questions and Answers About Whistleblower Appeals, available at http://www.mspb.gov/appeals/whistleblower.htm (accessed June 18, 2012) (emphasis added).
The Whistleblower Protection Act: An Overview by the Congressional Research Service