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"STATUTORY PROTECTION OF WHISTLEBLOWERS IN

THE FEDERAL EXECUTIVE BRANCH"

TAB VII

By Robert G. Vaughn

WHISTLEBLOWERS IN THE
FEDERAL EXECUTIVE
BRANCH

Robert G. Vaughn*

1. INTRODUCTION

Whistleblowing conjures images of clandestine meetings with congressional staff or with journalists, a news conference exposing governmental wrongdoing or abuse, testimony before a congressional committee describing mismanagement and misfeasance, an interview with a newspaper detailing conditions threatening public health, and the report of a crime to appropriate law enforcement officials.' These images, however, fail to suggest that many whistleblowers first raise their concerns within a government agency, that whistleblowing may be a refuge constructed to defend against agency action based on other grounds, or that whistleblowing may be the catharsis of personal and institutional conflicts whose genesis rests in circumstances more complex than those upon which attention finally is focused.

These images also fail to suggest the character of legal protection to which whistleblowers are entitled. Until recently, whistleblowers who were public employees have relied primarily upon the first amendment for protection. With the passage of the Civil Service Reform Act of 1978, however, federal employees receive statutory protection from reprisal for the disclosure of certain information. This federal provision' is the first to provide broad protection for whistleblowers. The provision recognizes the legitimacy of many forms of whistleblowing,

Professor of Law, The American Universisy. Lt., 1966, J.D., 1969, Universisy of Oklahoma; LLH., 1970, Harvard Universiry. The author wiches lo chart Elisabeth Goodman for her assistance in the preparacion of this article in addicion, I thank my colleagues, Andow Popper and Burton Wechsler, and Androw Feinstein, Staff Director and Chief Coronel, Subcommisice on Civil Service of the House Post Office and Civil Service Comnèice, and Alar Loparin, Scart Coursel of whas Subcommittee for their helpful comments on on cartier draft oj this article

. 1. These bypochericals were suggesied by lestimony before the House Committee oa Post Ofice ud the Civil Service ud before the Scoale Committee on Gove..aaul Afairs. See generally Hearings on Civil Service Reform Before the House Comm on Post Once and Civil Seru ise, 95 cb Cong.. 28 Sess. (1978) (hereinafter cited as House Hearingsl: Hearings on Civil Service Reform Before the Senase Comm on Governmental Affairs, 9Sub Cong.. 28 Sess. (1978) (hereinafter clied as Senare Hearings).

2. See infra lexi accompaaying poles 120_60. 3. Throughout this aricle ibc icrm "whisueblower provision” refers 10 a aucber of searu

615

provides a means of legal control of public bureaucracies, and serves as à model for similar protection of other public employees.'

This article examines the character of statutory protections provided by the Act and analyzes various interpretive problems which are likely to arise. The article also examines protections that existed prior to passage of the Act, most notably first amendment protections, and explores the relationship of the new statutory protection to these constitucional safeguards. This article further discusses the efficacy of the statutory protections, concluding that, although these protections consuilute significant developments in the control of bureaucracy, improvements are necessary to ensure fulfillment of Congress' purpose.

II. BACKGROUND AND PURPOSES OF THE ACT

A. Policy Considerations Several themes emerged from the debates surrounding statutory protection of whistleblowers who are within the federal executive branch. Proponcats of whistleblower protection saw whistleblowing as a means of institutional control. Whistleblowers expose corruption, waste, mismanagement, and even stupidity. They often draw the attenLion of officials to problems within the government before releasing informacion more widely. Such exposure belps limit abuses of power, it also emphasizes standards of conduct for employees which extend beyond the norms of the institutions in which they serve. Because relaliation against whistleblowers is likely and official correction of concerns limited, protecting whistleblowers and ensuring review of their allegations encourages whistleblowing and the benefits that flow from it.

A second argument of proponents, although focusing on individual responsibility, also emphasizes the faimess of protecting employees who expose corruption and wrongdoing. Principled conduct based upon established ethical precepts' justifies protection; allowing official

cory provisions spread throughout the Civil Service Recorm Aa of 197& These provisions include 3 U.S.C. SS 1206-08. 2302 7121 (Supp. IV 1980)

4. Prior to passage of the Civil Service Reton Ac Dua L Na 98-454, 92 Sul 111 (codi. bed in scanered sections of S U.S.C. (Supp. IV 198011 sectory proccion extended to recaliacion Laina persons who pericioned Coagress or who loved before congressional commiiiees Sees U.S.C. § 7102 (1976); 18 U.S.C. § 15OS (1976). The boer stature imposes criminal sancions und its creciveness eberefore depends upon tbe willingness of the Departmeal of Justice w prosecule cesas See The Whisleblowers: A Report on Fedord Employees Who Disclose Acus of Government Wade, Abuse, and corruprion Propored for the Sende Comore on Governmental Affairs, 9sch Cong, 20 Sex 424 (1978) (bereinafter died u Leady Rgoro). See gencrally Commode Comern. mons Employee Disclosures of Agency Wrongdoing. Mancing the Rights to Blow che Whiale, 42 U. Cul L Rev. 530 544 48 (1975).

5. Maryland has roceady adopred a provision patterned after the federal whistleblower provision to procca whiscleblowers in stare service Ma Amex Code are bin. 12G-12K (1980 Supp.)

á Thus whicleblowers are often the son bgad employees because they place the best interest of the organizacion above ebe lemporary interesa di the managers of the organizacioa.

7. Waistleblowers earty relied on ebe Code of Ethics for Governwear Service this among

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