Was a Former MSPB Chair Reassigned from Her Federal Job in Retaliation for Whistleblowing?

So says Tom Devine, Legal Director of the Government Accountability Project, speaking before a Senate committee hearing regarding Elizabeth Slavet, former Chair of the Merit Systems Protection Board (2000-’03) and recently the director of the Whistleblower Protection Program at the Department of Labor:

It also is difficult not to be concerned that OSHA reassigned the DWPP Director, Elizabeth Slavet, shortly after she began implementing plans for a more independent audit. Ms. Slavet is a nationally-recognized whistleblower expert, previously having served as the highly-respected Chair of the U.S. Merit Systems Protection Board adjudicating the Whistleblower Protection Act for federal workers. Many of the reforms credited above occurred under her leadership at DWPP. After her abrupt removal, it is essential that OSHA takes steps to – 1) assure there is no violation of Ms. Slavet’s own whistleblower rights; 2) select a successor whose credibility and expertise also are beyond dispute; and 3) add independent audit enforcement teeth to his announced reforms.

Link to Testimony Statement, April 29, 2014

How the Elite Talk Down to the Rabble in the Whistleblower Community

Through code, innuendo, metaphor, and the indispensable Plausible Deniability, obscuring attempts to charm/reward or intimidate… in other words, the language of power (oooh!). Here you’ll see Thad Guyer, capo consigliere for GAP’s Tom Devine, fishing for info and/or sending an implicit message of displeasure at my creation, mspbbar.wordpress.com, all the while revealing the cabal’s incipient talking points: that my publicizing their litigation/collections/malpractice record is akin to a retaliatory investigation. The conceit there, of course, is that these vultures are somehow voiceless whistleblowers and I’m the vengeful government. He’s not the first to show discomfort at my efforts to show government/bar collusion, but this attempt is by far the most inept. For the record, no, this type of email from him is not common. We are neither friends nor peers.

 

Postscript: I’ve been meaning to start a feature that decodes the cabal’s power moves. This might be  the first such entry. Stay tuned.

James Murtagh’s Extensive Ties to the Group Currently Controlling the Federal Whistleblower Levers of Powers

Dr. Murtagh is a favorite go-to person for GAP. See this and this from Murtagh’s perspective.

See also:

1. This profile of him in GAP’s Tom Devine’s The Corporate Whistleblower’s Survival Guide.

2. Here Dr. Murtagh is featured in a GAP video (scroll to bottom) with then-GAP Executive Director Mark Cohen, who is now the Principal Deputy Special Counsel at the U.S. Office of Special Counsel (and onetime lawyer for Murtagh’s colleague Linda Lewis).

3. One of Dr. Murtagh’s former lawyers is F. Doug Hartnett, who at one point worked (and may still work) at the U.S. Office of Special Counsel under Carolyn Lerner. Hartnett is also a former GAP staffer and former associate of the DC-based employment law firm Passman & Kaplan, P.C.

4. Another of Dr. Murtagh’s former lawyers is Mick Harrison of Bloomington, Indiana. Harrison had some affiliation with GAP. Harrison worked with Richard Condit (now of GAP) on the Teresa Chambers v. U.S. Park Police case of the mid 2000’s. Condit is listed as a reference for Harrison.

5. Currently, Dr. Murtagh is represented by Steven Dennison Smith of Blacksburg, Virginia, against Clark Baker of Los Angeles, California, where I’m listed as a witness. Some of the details of that suit are available here. Attorneys Smith and Harrison previously represented Virginia physician Lokesh Vuyyuru, who had his medical license revoked and who was declared a vexatious litigation for abusing the legal process one too many times. Along the way, Attorney Smith was sanctioned for failing to adequately inquire into his client’s case before bringing suit. At one point, Richard Condit of GAP appealed one of Vuyyuru’s lawsuits all the way up to the U.S. Supreme Court, with no success. Mark Cohen’s email was used for the Supreme Court docket.

6. Dr. Vuyyuru showed up to accompany Dr. Murtagh and their mutual colleague and attorney Steven D. Smith on December 6, 2013, when Dr. Murtagh attempted to criminally enjoin Clark Baker in a Los Angeles court from publicizing his litigation history on jamesmurtaghmd.com (backup site). The judge had to give Dr. Murtagh a lecture on the scope of the Bill of Rights and to tell him to take his concerns to civil court instead.

7. Murtagh’s civil lawsuit against Baker is currently pending, where a key issue is whether any of his perceived claims of privilege and confidentiality are legitimate and not contrived schemes for the purposes of silencing or extorting disfavored persons.

“I don’t even think of retaliation as immoral, at this point.”

Can you be an effective advocate for whistleblowers’ rights if you don’t believe retaliation is immoral?

Readers of this website know that I am not a fan of Tom Devine, Legal Director at the Government Accountability Project. I believe that he possesses/possessed far too much influence in whistleblower circles, given that (a) at bottom he does not believe in the rule of law (by his own admission to me), and (b) he does not believe that retaliation is immoral, by his own words to the public just last month. Take a look:

“I don’t even think of retaliation as immoral, at this point.” -Tom Devine, Legal Director at the Government Accountability Project, speaking at Harvard Law School in October 2013 at a program organized by Ralph Nader

Fuller video/context for fact-checkers here.

I’m not going to belabor the point. I’m just going to put this out there: would a so-called abolitionist have been taken seriously in the 1800’s if he didn’t see slavery as an immoral institution? Would a suffragist be taken seriously at the turn of the 20th century if she didn’t see disenfranchisement as immoral? Would a civil rights activist in the 1960’s be taken seriously if he didn’t see segregation as immoral?

Is retaliation for speaking the truth a lesser form of struggle than the above?

Were slavery, disenfranchisement, and segregation not also defended on naturalist, universal, and timeless grounds before this fallacy was exposed for the power-entrenching excuse that it is?

If one doesn’t believe in the rule of law or the immorality of retaliation (or injustice and denial of due process), and one holds a large degree of influence over the development of whistleblower rights for 30+ years, what is the likely degree of health and vitality of those rights, 30 years out?

Despite what my detractors say, my objections with Devine are rooted in the fundamental difference that retaliation is not a natural part of life that we must resign ourselves to and accept. It’s a social norm that can be regulated and abolished. And it is this difference that colors my ethics and motives, as well as his.

Article Overview: ‘The Whistleblower Protection Act Burdens of Proof: Ground Rules for Credible Free Speech Rights’

An October 2013 edition of the E-Journal of International and Comparative Labour Studies, a publication by international non-profit organization Adapt International, includes an article by Government Accountability Project’s Tom Devine on the burdens of proof in the Whistleblower Protection Act of 1989.

In the article, Devine argues that the United States stands alone among nations with whistleblower laws because of the WPA’s statutorily-codified burdens of proofs, and that these burdens of proofs are the “ground rules” of whistleblowing, without which “it is unrealistic for whistleblowers effectively to defend their rights if they do not know how much and what type of evidence is necessary to win.”

The article contains a discussion on pages 13-16 on how the Merit Systems Protection Board and the U.S. Court of Appeals for the Federal Circuit have regulated the agencies’ burden of proving that the personnel actions were taken against whistleblowers for independent, innocent reasons, by fashioning what we now call the Carr factors test: (i) the strength of the agency’s evidence for its actions, (ii) its motive to retaliate, and (iii) its treatment of similarly situated non-whistleblowers.

Rather than utilizing these factors to “heighten the agency’s burden for independent justification,” however, Devine argues that the Board and the Federal Circuit have transformed this WPA provision “into a vehicle to enable pretexts by agencies.”

The article continues:

Frustrated with this defiance of intent, the U.S. House of Representatives passed the Whistleblower Protection Enhancement Act of 2007 that codified the traditional definition to replace the factors:

“‘[C]lear and convincing evidence’ means evidence indicating that the matter to be proved is highly probable or reasonably certain”.

While the final version of the WPEA passed five years later did not contain a definition, the Federal Circuit and the Board may have been paying attention. Recent case law, while not rejecting the Carr factors, largely has restored Congressional intent by rolling back earlier decisions that had severely diluted agency burdens. In a May 2012 decision, Whitmore v. Department of Labor, the Federal Circuit consolidated and expanded agency burdens within the Carr framework. In overview, the court recognized that the “clear and convincing” standard is “reserved to protect particularly important interests in a limited number of civil cases” and cited the WPA legislative history that Congress intended this principle to govern the Whistleblower Protection Act.

The Carr factors test is not without drawbacks, even after its refinement in Whitmore v. Department of Labor:

Unfortunately, [the Carr factors] formula in practice tended to excuse, rather than enforce, a high standard and led to the acceptance of possible agency pretexts. To illustrate, there has not been a quantum of “clear and convincing evidence” required for each factor. As the Federal Circuit reaffirmed in 2012 in Whitmore v. Department of Labor “Carr does not impose an affirmative burden on the agency to produce evidence with respect to each and every one of the three Carr factors to weigh them each individually in the agency’s favor”.

And:

On balance, Whitmore did not erase the balancing test for the clear and convincing evidence standard. Indeed, it reaffirmed that the defendant agency does not need to produce evidence for each factor. If the decision’s principles are enforced consistently at the administrative level, however, whistleblowers will have the fair fight Congress intended when defending themselves against agency pretexts.

Devine’s article comes on the heels of burgeoning plans by GAP and the Make It Safe Coalition to ramp up legislative efforts to reform the Merit Systems Protection Board. Perhaps now would be an ideal time to look into strengthening and codifying the Carr factors test legislatively, if it is not to be overturned.

Download The Whistleblower Protection Act Burdens of Proof: Ground Rules for Credible Free Speech Rights by Thomas Devine here.

GAP Inconsistency Watch

Government Accountability Project Legal Director Tom Devine found himself into the papers yesterday with this quote about OSC’s underfunding crisis:

Tom Devine, legal director for the Government Accountability Project, a whistleblower advocacy group, said OSC is being squeezed.

“They’ve been given drastically increased duties, and they have less money to carry them out,” Devine said.

Yet, as previously documented, when push comes to shove, GAP will not put actually spell out how much more funding OSC should get, despite doing so for another federal whistleblower office. It will be interesting to see if I’m proven wrong though. Also, when questioned about the very same topic just 10 years ago, here was Devine’s answer:

But Tom Devine, legal director of the Government Accountability Project — a nonprofit group supporting government and corporate whistleblowers — said that extra staff would be “a much-needed band-aid.” He called for the administration to support structural reforms that would allow federal employees to take their cases to court after six months, as corporate staff can.

Those structural reforms have not yet appeared and the funding problem is the same, yet Devine’s tune is different. So what accounts for this difference?

Also, the Merit Systems Protection Board has misapplied the Whistleblower Protection Enhancement Act in a decision that came out yesterday, refusing to apply the clarified definition of “gross mismanagement” to a pending case. When the Board decided that the WPEA applies retroactively, in late June, Devine said this:

We all should be grateful to the Merit Systems Protection Board majority for leadership in restoring credible whistleblower rights to pending challenges of retaliation, and not limiting the law’s protection to harassment that occurred after its passage.The ruling will have a crucial impact in numerous pending cases.

I guess that gratitude will have to be short-lived.

GAP’s Whistleblower Whiplash

Two developments in the whistleblower world caught the Government Accountability Project speaking out of both sides of its mouth today.

Here’s GAP’s Legal Director, Tom Devine, on news that the Federal Circuit dealt a serious blow today to national security employees’ (and possibly all federal employees’) civil service protections:

Last year Congress unanimously passed the Whistleblower Protection Enhancement Act (“WPEA”) due to hostile Federal Circuit activism creating judicial loopholes that gutted statutory free speech rights. Apparently the Federal Circuit did not get it. This time the court created a loophole to remove the civil service rule of law from virtually the entire federal workforce. It erased all federal laws that shield the two million federal employee workforce from becoming a national security spoils system.

And

After Conyers, federal employees will have two rights left: be national security ‘yes people,’ or leave. A bureaucracy where it is only legally safe to be a national security ‘yes man’ is a clear and present danger to freedom for all Americans.

Of course, courts do not issue rulings destroying 100+ years of civil service protections willy-nilly. Someone has to argue for that position. Conspicuously missing from GAP’s myopic condemnation is any mention of the driver and originator of this decision: the Obama Administration, as well as Acting OPM Director Elaine Kaplan, a former Special Counsel and recipient of a GAP-sponsored award.

Turning to the second development, here’s the very same Tom Devine defending the White House on charges that the president misspoke/misled/lied to the public when he said that his executive order (PPD-19) would have given Edward Snowden a viable channel to blow the whistle. The article ably lays out all the different interpretations and positions on this issue. For my purposes, however, it’s sufficient to quote the end:

“There is no substitute for codified rights,” said GAP’s Devine. “But to be fair, the president is doing what he can to sweep in contractors” under the October directive. Devine’s discussions with White House aides indicate they believe the White House has the authority to act alone, he said, perhaps by using “expansive definitions of government employee.”

Sometime between the time Obama signed the October order and the stripping of contractor protections in the defense bill, Devine said, the issue fell off the White House radar.

So there you have it folks. When it comes to a conscious, relentless effort to eviscerate decades-long civil service protections, the Obama Administration is nowhere to be mentioned in Devine’s indignant quotes. But when the president makes a comment that perks the ears of whistleblower advocates across town, Devine is there, ready to offer innocuous sounding excuses on his behalf.

Here’s a question to my fellow whistleblowers: does this conduct do justice to your sacrifices?

The Green Lantern Theory of Government Accountability

From a fire-walled interview today between FederalDaily.com and Tom Devine, Legal Director of the Government Accountability Project:

Has the OSC improved in recent years?

Devine: The Office of Special Counsel is buried in work—but they are now fighting for the rights of whistleblowers. They used to ignore all these cases—they were like a legalized [Watergate-era] “plumbers” unit. OSC is making a good-faith effort under the current administration. But that commitment could become a soap bubble after the next election.

The Green Lantern reference is explained here. Basically, under this theory, members of the public and non-governmental organizations are mere spectators to the whims of government actors, who may or may not act benevolently and in the public interest. Other examples of Green Lanternism arise when Mr. Devine extols giving credit and gratitude to the president for issuing PPD-19, for his signing the WPEA, for the MSPB ruling that the WPEA applies retroactively, or for some other “unprecedented” crumb tossed our way. Green Lanternism serves two purposes: to absolve oneself and one’s organization of sins of omission, and to mollify the rabble (under the guise of “maintaining expectations” or “being fair”) in order to preserve access, influence, and credibility.

This is not to say that there can be no bad Special Counsels. But without public pressure and uncompromised, principled advocacy, even supposedly “good” Special Counsels come out mediocre in the face of such cynical coddling.

Source: Federal whistleblower rights still lag those in the private sector (FederalDaily.com, Aug. 19, 2013) (cached version)

Why I Won’t be Taking the MISC Civility Pledge

Last week the Make It Safe Campaign, a loose coalition of open society organizations and whistleblowers, implemented/pushed/imposed/adopted a “civility pledge,” presumably meant at curbing hostilities within the whistleblower community. I did not participate in drafting, debating, or adopting it. And I won’t be taking the pledge. Here’s why:

It’s overly broad and too vague. It suppresses free speech. It doesn’t get to the root of the problems in the community. And it has no enforcement mechanism.

It implores its takers not to “engage in attacks against fellow MISC members.” First, what’s an “attack”? If a fellow MISC member, such as the Government Accountability Project or the Project on Government Oversight (which are not equal among MISC members, as measured by clout, power, and access to the power structure) adopt tactics that betray the interests of whistleblowers and engage in dishonest or disreputable conduct when challenged, is it an “attack” to state the truth about such conduct? Who gets to define what an attack is? Keep in mind that both GAP and POGO are on the MISC Steering Committee. How is the pledge to be enforced? What are the due process mechanisms, if any? Are there any appeals? Would they be judges in their own cause? Who renders a decision? Will that decision maker be neutral and independent?

If the enforcement mechanisms do not exist, will the pledge be nothing more than a shield from criticism, to be used in a self-serving manner in response to pointed critiques? (And if the due process mechanisms exist, why not just go ahead and implement a voting mechanism/seat at the table for lobbying/advocacy purposes? Or would that make it easier to expose moment-of-truth betrayal?)

The same could be said about tolerating differences of opinion. This is quite the vague term. The temptation is there to gild the truth and spin inconvenient facts as mere differences of opinion. I know because it happens frequently by those within MISC that throw the truth and integrity out the window when confronted with their own deplorable conduct.

I also won’t be taking the pledge because it doesn’t address the root cause of the problems within the whistleblower community. Incivility is a symptom, not  a cause. The cause is disenfranchisement, and seeing our so-called representatives betray us behind closed doors in Congress. Ask yourselves why is it that, post-Snowden, GAP had to speak with one voice about the utter lack of protections for national security whistleblowers (usually either through Bea Edwards or Louis Clark), rather than allow Tom Devine to utter platitudes about how Obama tried his best but was roiled by some reactionary in Congress, or some such nonsense. The reason is simple: Snowden raised the stakes, and Devine’s power-courting routine conflicted with GAP’s image in this new landscape where, unsurprisingly, the public actually cares about whistleblowers when a real one appears, warts and all, rather than the one-dimensional cardboard versions GAP’s been pushing for decades to absolutely no one’s benefit but its own.

Last November, Devine issued a remarkably revisionist and self-serving end-of-year statement. He lamented the breakdown in civility in the community while adopting a faux above-it-all posture, which served to shield his own instrumental role in community fissures. He said the following:

We can and need to be stronger as a community as well. I have been disturbed at breakdowns in civility, credibility and respect for differing opinions. Those are the primary values of what we fight for, and it’s bewildering to me when we behave the same as our adversaries. It will be a real challenge to impose accountability without suppressing free speech. I believe we need to try.

Those are not my primary values, not when the truth gets suppressed and distorted and uncivil conduct occurs behind closed doors while a false face is presented to the public.

In any event, this so-called civility pledge neither imposes accountability nor protects free speech. I will not be endorsing it.