Fleur De Lis Film Studios released a letter sent to the House of Representatives and Senate sponsors of the Whistleblower Protection Enhancement Act, calling for the elimination of certain provisions of the bill S. 372 that would undermine the rights of whistleblowers. In the letter, FDLS executives stated in relevant part:
"Senator Akaka & Distinguished Members of The Senate:
We're contacting you on behalf of an underrepresented segment of American society that continues to suffer from egregious civil rights violations in retaliation for their whistleblowing disclosures. The cost of fraud in the U.S. is $660 billion annually, it destroys our economy and undermines national security. Instead of being praised for their heroic actions, whistleblowers from all walks of life are routinely silenced, while their careers and reputations are destroyed under the color of law. Federal law enforcement agencies abuse the awesome government resources to investigate, harass and prosecute our country's unsung heroes at the expense of American taxpayers. In some instances these actions reach monstrous proportions of such a magnitude as to dispatch fixed-wing airplanes and Blackhawk attack helicopters to raid the residences of federal whistleblowers.
One of the dangerous setbacks contained within S. 372 pertains to the sweeping new powers handed to the Merit Systems Protection Board (MSPB). The Board has an unfortunate record of siding with the government in 97 percent of cases. The system that was created for the purpose of protecting whistleblowers is being misused against them. This broken agency is in desperate need of reform. Instead, through S. 372 the Senate is entrusting it with the ability to summarily dismiss a whistleblowers case without a hearing, based solely on agency affidavits.
Anyone who reviews the shamefully lopsided track record of the MSPB will conclude that the vast majority of cases will be summarily dismissed without whistleblowers ever getting their day in court. Since the creation of the Civil Service Reform Act of 1978 the Federal Circuit has rejected numerous requests from the executive branch for a judicial creation of the authority to dismiss cases summarily. Section 118 of S. 372 will largely extinguish any hope of legal recourse for most whistleblowers by counteracting the important reforms contained in the same legislation.
Office of Special Counsel has a dubious reputation dating back to its inception. See "Office of Special Counsel (OSC) -" the dark legacy". The most recent head of the OSC, Scott J. Bloch, pleaded guilty to criminal contempt of Congress on April 27, 2010. Under his leadership, the historically inept OSC reached new lows by dismissing, closing and destroying hundreds of whistleblowing complaints without investigation. For breaking the law in his war on whistleblowers, Scott Bloch was not charged with obstruction of justice, evidence tampering, destruction of official files, impeding an official federal investigation, civil right violations and violations of the Whistleblower Protection Act (WPA).
Instead, Bloch was charged only with criminal contempt. While this charge carried a possible prison sentence, DOJ prosecutors did not oppose probation for Bloch. In a twisted irony that further exacerbates paramount injustices of our legal system, Bloch is currently working as an employment attorney at the Tarone & McLaughlin law firm in Washington.
Another major area of concern is that for the first time ever, federal employees will not be protected for making protected disclosures pertaining to violations of law. The exclusion provided for "minor violations of law" provides for a dangerous precept that federal managers would be allowed to decide what laws they can violate. This potentially dangerous provision overturns one of rare Federal Court decisions that ordered corrective action for a whistleblower. It also contradicts every major study on fraud detection, including the most recent determination by the Association of Certified Fraud Examiners that the best way to detect fraud is to protect whistleblowers who report even suspicious activity because that often leads to the discovery of major fraud.
In short, what was meant to be an enhancement of the Whistleblower Protection Act contains setbacks and shortcomings that would severely undercut the already almost nonexistent whistleblower protections. The same poison pills contained within S. 372 would further empower the offending agencies, while insulating them from even a remote possibility of whistleblower recourse.
Unless the bill is corrected, whistleblowers rights will be catapulted backwards into the dark ages. Aggrieved whistleblowers will continue to be subjected to retaliatory investigations, warrantless surveillance and malicious prosecutions. Federal agencies will be invincible against any recourse sought by whistleblowers. They will either reach a discretionary decision that violations reported by whistleblowers are excluded as "minor violations of the law" or rely on the MSPB's continued cover-up of government corruption that is now accelerated by the expanded powers of summary dismissal. There can be no adequate whistleblower protection without the implementation of a constitutional right to trial by jury secured by the 7th amendment, combined with repealing the government's immunities for committing violations of the law.
We are requesting on-camera interviews with the proponents of the bill as well as the National Whistleblower Center affiliates to address the much needed expansion of legal protection for whistleblowers for global broadcast. We ask that this legislation be amended and include relevant testimony that would provide Senators with a glaring reality of whistleblower retaliation that destroys lives and careers of our honorable men and women who give of themselves in federal service to the greatest nation in the world, the United States of America.
We will look forward to scheduling a camera crew to deliver your commentary and official position on the plight of whistleblowers to the American public.