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WHISTLEBLOWERS IN THE

FEDERAL EXECUTIVE
BRANCH

Robert G. Vaughn*

I. 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 provision3 is the first to provide broad protection for whistleblowers. The provision recognizes the legitimacy of many forms of whistleblowing,

Professor of Law, The American University. BA., 1966, J.D., 1969, University of Oklahoma; LLM., 1970, Harvard University. The aahor wishes to thank Elisabeth Goodman for her assistance in the preparation of this article. In addition, I thank my colleagues, Andrew Popper and Burton Wechsler, and Andrew Feinstein, Staff Director and Chief Counsel, Subcommittee on Civil Service of the House Post Office and Civil Service Committee, and Alan Lopatin, Staff Counsel of that Subcommittee for their helpful comments on an earlier draft of this arucle.

1. These hypotheticals were suggested by testimony before the House Committee on Post Office and the Civil Service and before the Senate Committee on Governmental Affairs. See

generally Hearings on Civil Service Reform Before the House Comm on Post Office and Civil Serv ice, 95th Cong.. 2d Sess. (1978) (hereinafter cited as House Hearings); Hearings on Civil Service Reform Before the Senate Comm on Governmensal Affairs, 95th Cong., 2d Sess. (1978) (hereinafter cited as Senate Hearings).

2. See infra text accompanying notes 120-40.

3. Throughout this article the term "whistleblower provision” refers to a number of statu

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provides a means of legal control of public bureaucracies, and serves as a 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 constitutional safeguards. This article further discusses the efficacy of the statutory protections, concluding that, although these protections constitute 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. Proponents of whistleblower protection saw whistleblowing as a means of institutional control. Whistleblowers expose corruption, waste, mismanagement, and even stupidity. They often draw the attention of officials to problems within the government before releasing information more widely. Such exposure helps 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 retaliation 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 fairness of protecting employees who expose corruption and wrongdoing. Principled conduct based upon established ethical precepts' justifies protection; allowing official

tory provisions spread throughout the Civil Service Reform Act of 1978. These provisions include 5 U.S.C. § 1206–08, 2302, 7121 (Supp. IV 1980)

4. Prior to passage of the Civil Service Reform Act, Pub. L. No. 95-454, 92 Sul 111 (codified in scantered sections of 5 U.S.C. (Supp. IV 1980)), statutory protection extended to retaliation against persons who petitioned Congress or who testified before congressional committees. See 5 U.S.C. § 7102 (1976); 18 U.S.C. § 1505 (1976). The later statute imposes criminal sanctions and its effectiveness therefore depends upon the willingness of the Department of Justice to prosecute cases. See The Whistleblowers: A Report on Federal Employees Who Disclose Acts of Governmens Waste, Abuse, and Corruption Prepared for the Senate Comon on Governmental Affairs, 95th Cong, 2d Sess. 42-44 (1978) (hereinafter cited as Lanky Report). See generally Comment, Government Employee Disclosures of Agency Wrongdoing. Protecting the Right to Blow the Whistle, 42 U. CHL L. REV. 530, 544–48 (1975).

5. Maryland has recently adopted a provision, patterned after the federal whistleblower provision, to protect whistleblowers in state service. Ma. ANN. CODE art. 64A, §§ 12G-12K (1980 Supp.) 6 Thus, whistleblowers are often the most loyal employees because they place the best interests of the organization above the temporary interests of the managers of the organization. 7. Whistleblowers early relied on the Code of Ethics for Government Service that, among

punishment for actions in accord with these standards would defeat the purpose for which they were established. The two arguments meld, but the first, based on institutional control, has an instrumentalist tone and the second emphasizes ethical judgments.

Excessive protection for whistleblowers, however, may seriously interfere with the legitimate operations of a bureaucracy. Because principle does not motivate all whistleblowers, whistleblowing can occur for spiteful or petty reasons. It also may be an attempt by an employee to insulate himself from disciplinary or other personnel actions. Moreover, independent employee action threatens the framework of law, regulation, and policy which controls the release of government information and protects the interests of third parties. Unbridled individual discretion, therefore, can seriously hamper an agency's efforts to accomplish its goals. The opponent's arguments, therefore, also focus on both instrumentalist and ethical themes.

B. Recognition of the Justification for Whistleblowing

Whistleblowing has been a subject of public debate since the early 1950's. The justifications for whistleblowing were not fully articulated and established, however, until the 1970's.'

The federal Freedom of Information Act," first enacted in 1966, however, provided some justification for whistleblower protection. That Act established the principle that government documents and records are public information and that the burden is upon the government to demonstrate that documents and records fall within one of the categories of information that may be withheld.12 Using the Freedom of Information Act, whistleblowers could justify the release of information as a vindication of the rights of the public.

other principles, stated: "1. Put loyalty to the highest moral principles and to country above loyalty to persons, party, or Government department.... 2. Uphold the Constitution, laws, and legal regulations of the United States and of all governments therein and never be a party to their evasion.... 9. Expose corruption wherever discovered. 10. Uphold these principles, ever conscious that public office is a public trust." H.R. Con. Res. 175, 72 Sial B12 (1958).

8. Instrumentalist concerns include bureaucratic efficiency, economy, and the free flow of relevant information.

9. As early as 1951, then Senator Richard Nixon introduced legislation designed to protect federal employees who testiñed before congressional committees. Kovlev, Blowing the Whistle, 105 COMMONWEAL 591 (1978).

10. The Brush experience illustrates the importance of the justifications for whistleblowing as a prelude to legislative protection. In Britain, no accepted premise of public access to government information exists. The lack of a written constitution and the concept of judicial review prevents appeals similar to those made by public employees in the United States under the first amendment. In addition, a number of political conventions, particularly the doctrines of parlia mentary supremacy and ministerial accountability, deay whistleblowers ethical justiōcauons available to employees in the federal government. See generally Vaughn. The Role of Sicusory Regulation of Public Service Ethics in Great Britain and the Unaed States, 4 HASTINGS INT'L & COMP. L. REV. 341, 374-88 (1981).

11. 5 U.S.C. § 552 (1976).

12. See generally J. O'REILLY. FEDERAL INFORMATION DISCLOSURE (1977) (hereinafter cited as FEDERal Information DISCLOSURE).

This principle formed the basis of the first proposed legislation to protect whistleblowers. 13 Although the measure died in committee,'* its introduction was an important step in the process of establishing some form of protection for the conscientious federal employee.'s

Proponents of whistleblower protection also rested their arguments on a constitutional foundation. They asserted that the release of information supports statutory policy and that whistleblowers act to vindicate the law rather than to undermine it. Thus, by upholding the integrity of the legislative branch, they claimed that whistleblowing preserved the separation of powers. The first amendment likewise provided a powerful safeguard for whistleblowing. The right of free speech allowed criticism of government by public employees.16 For some types of whistleblowing, therefore, employees could shield themselves from retaliation by invoking the protections of the Constitution.

In addition, several commentators considered the need for whistleblower protection. A number of studies examined the utility of whistleblowing and repeated the justifications for protecting that practice. These studies focused on the principles motivating whistleblowers in cases in which their disclosures appeared warranted." The commentary frequently contrasted the often harsh treatment of these sympathetic figures with that of the wrongdoers whom they exposed.

In addition, the climate of dissent surrounding the Viet Nam War and the Watergate scandal legitimized dissent and emphasized the need to control government wrongdoing. These events built on the foundations already laid and highlighted the need for whistleblower protection.

C. Passage of Whistleblower Protection

Against this background, Congress considered proposals of the Carter Administration to protect whistleblowers. The administration

13. The Federal Employee Disclosure Act of 1975, S. 1210, 94th Cong., 1st Sess. (1975). See generally Hearings on S. 1210 Before the Subcomm on Administrative Practice and Procedure of the Senate Comm on Judiciary, 94th Cong., 1st Sess. (1975). Alaska links whistleblower protection to its freedom of information law. Alaska Stat. § 39.51.020 (1980). Without such a link, a freedom of information law does not protect whistleblowers. In re John J. Toth, 175 NJ. Super. 254, 418 A.2d 272 (1980).

14. See I CONG. Index (CCH) 94th Cong, 2d Sess. (1975-76).

15. Linking protection to the Freedom of Information Act also ensured jurisdiction by the Subcommittee on Administrative Practice and Procedure, which had jurisdiction over the Freedom of Information Act, but not generally over the Civil Service.

16. See infra text accompanying notes 120-40.

17. Perhaps the most induential study was the Leaky Report, supra note 4. The Report was prepared by Senator Patrick Leahy who, while not a member of the Committee, played a substantial role in consideration of the whistleblower provision. Senator Leahy testified before the Committee on Governmental Affairs, Senate Hearings, supra note 1, at 1859, and introduced an important amendment to the provision during Senate debate of the Act. 124 Cong. Rec. $14,302 (1978). Another influential, although earlier, report was R. NADER, P. PETKAS & K. BLACKWELL WHISTLEBLOWING: THE REPORT OF THE CONFERENCE ON PROFESSIONAL RESPONSIBILITY

(1972).

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