Whistleblower Protection Act

It can be difficult to understand the significance of recent developments in the new Trump Administration without knowing about whistleblower law for federal employees.  Let us use this as a teaching moment.

On Jan. 24, 2017, employees in several federal agencies reportedly were told not to issue news releases, tweet, make policy pronouncements, or otherwise communicate with the outside world without the prior approval of those agencies’ management.  There was some backpedaling from the Administration, and it was not clear in any event whether these restrictions were temporary or permanent.

This ban — especially if it is made permanent — could have significant effects at these agencies.  One of the most significant impacts is that this ban could violate the Whistleblower Protection Act.  That is not a new statute.  It was passed in 1989 and was amended in 2012.

Under 5 U.S.C. 2302(b)(8), most federal agencies cannot take a “prohibited personnel action” against almost any employee of or applicant for employment with that agency because that employee or applicant has disclosed information (including to Congress and to the news media) that s/he reasonably believes evidences “any violation of any law, rule, or regulation” or “gross mismanagement, a gross waste of funds, an abuse of authority, or a substantial and specific danger to public health or safety.”

There are exceptions for disclosures that are specifically prohibited by law, as well as disclosures of secrets because of national security or the conduct of foreign affairs.  (Since the NSA is exempted from this statute, Edward Snowden could not rely on this law as a defense to any legal proceedings based on his disclosures.)

As one federal agency has explained, retaliation against a federal employee whistleblower, in violation of the WPA, can lead to an investigation and can be the basis of an appeal from an adverse action against the employee.  In other words, communication bans against federal employees have limits.

It is too early to tell whether federal agencies will retaliate under Trump against employees who disclose waste, fraud or abuse.  Mr. Trump and the people he has appointed should not expect federal employees to blindly follow communication bans.  Those who are pushed can and will push back.