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Why Whistle-Blowers Should Watch Out for New Loophole (Op-Ed)

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Celia Wexler is a senior Washington representative for the Center for Science and Democracy at the Union of Concerned Scientists (UCS), where she focuses on food and drug safety, protections for scientist whistle-blowers and government transparency and accountability. This article first appeared in the UCS blog The Equation. She contributed this article to LiveScience's Expert Voices: Op-Ed & Insights.

Does an employee working at a U.S. Department of Defense (DOD) commissary hold a position that is "sensitive" — one that could compromise national security? If you answered, "no," think again.

Recently, as part of a 2-to-1 appeals court ruling, federal Judge Evan Wallach held that someone who works at a base commissary could get valuable information about troop movements by observing, for example, how many pairs of sunglasses were ordered. Really? Personally, I think a terrorist wanting such information might be more likely to use Google Earth than rely on a report of sunglass supplies.

So why should you care about the status of a commissary worker? The designation of that Defense Department employee has precipitated litigation and become a factor in an agency rule-making that could have far-ranging implications. What happens in the next few months could shake the foundationsof the nation's civil service system. By weakening the ability of a worker to protest his or her removal, the new rules may vastly weaken whistle-blower protections for all federal employees, including federal scientists — protections that were strengthened only months ago.

The term "whistle-blower" gets used a lot these days, and not everyone who leaks classified information deserves that title. But at UCS, I've had the privilege of meeting federal employees so dedicated to their mission that they risked their careers to expose threats to public health and safety, and other wrongdoing.

U.S. Food and Drug Administration whistle-blowers have exposed the dangers of unsafe drugs, and faced intimidation from agency managers. A mining safety engineer criticized a federal investigation of a mining disaster that covered up both misconduct by the mining company and the government's own lax enforcement, and paid with his career. A consumer-product safety statistician stood up for data that showed the dangers of all-terrain-vehicles used by youngsters, and left out of frustration with agency attempts to first get her to change her conclusions, and then to delay the release of her findings.

Late last year, UCS, in concert with organizations that crossed the ideological spectrum — and after years of struggle — enjoyed a victory. With the strong support of President Barack Obama, Congress passed a bipartisan whistle-blower protection law to ensure that federal workers who face retaliation for exposing waste, fraud and abuse at federal agencies have credible rights to fight back. For the first time, the law specifically recognized that a scientist who exposed the censorship or distortion of federal information also was entitled to whistle-blower status.

But not all federal agencies seem to be singing from the same hymnbook. Two federal agencies, the DOD and the U.S. Office of Personnel Management (OPM), are engaged in a legal fight that could create a huge loophole for federal managers who want to evade the new whistle-blower-protection law.

The new whistle-blower law affords federal workers who expose waste, fraud and abuse, or the manipulation or suppression of federal information, the right to fight agency retaliation. And those workers have a process to appeal demotions or terminations. But, those rights may soon be meaningless for the estimated hundreds of thousands of workers in "noncritical sensitive" jobs.

If the DOD prevails in the courts, those who suffer demotions or job losses because an agency declares them as ineligible to hold a "noncritical sensitive"' job could not appeal their removal — even if the removal actually has more to do with whistle-blowing than security.

Want to retaliate against whistle-blowers? Designate their jobs as "noncritical sensitive" and say they aren't eligible to have that designation.

Which brings us back to the commissary employee. The DOD demoted Devon Northover, a commissary management specialist, and placed Rhonda Conyers, an accounting technician, on indefinite suspension, and offered the same reason for both these actions: The DOD found that neither worker was eligible to hold these positions, which the agency had designated "noncritical sensitive." The workers appealed these job actions to an independent, executive-branch agency that adjudicates such claims, the Merit Systems Protection Board. The MSPB agreed to hear their appeals.

But, both the OPM and the DOD contended that the employees didn't have any appeal rights because their jobs were designated "sensitive" to national security, and if they lost those jobs because they were no longer eligible for that designation, they could not appeal to the MSPB to get them back. The MSPB could only rule on whether the agencies followed the appropriate procedures in denying their eligibility.

So the employees, represented by their union, took the agency to court. The federal judge who heard their case sided with the DOD, and the case now is under appeal. Sen. Chuck Grassley (R-Iowa) has raised concerns about this court case and its potential impact on whistle-blowers, as has Rep. Elijah Cummings (D-Md,). The Department of Justice, in a brief supporting the two agencies, stated that this ruling should not apply to whistle-blowers. But, DOJ didn't explain how whistle-blowers could actually be excluded from this retaliation by designation.

In the meantime, the Office of the Director of National Intelligence (ODNI) and the OPM have added fuel to the fire, proposing a rule that would give agencies nearly boundless power to designate virtually any government job as "sensitive."

The proposed rule makes clear that a noncritical, sensitive designation does not necessarily give an employee access to classified information. It just means that the work that employee does could "have the potential to cause significant or serious damage to the national security." The rule sweeps up many senior agency managers, procurement officers and those experts whose knowledge could damage public health and compromise critical infrastructure, among other things.

Work for the U.S. Centers for Disease Control and Prevention? Your knowledge of infectious diseases likely would make you a candidate for a sensitive designation. An engineer for the U.S. Army Corps of Engineers working on bridges or dams? You may have to slap a "sensitive" label on your job, too. An FDA scientist who reviews new drugs? Surely access to proprietary information on those drugs, or how to use those drugs to harm people, also would make you vulnerable to that designation.

Our whistle-blower coalition is monitoring the federal appeals court decision and the ODNI-OPM regulatory proposal very carefully. We believe that the DOD and OPM should not be proposing regulations until the courts have made a final decision. We also believe that any regulatory action should be postponed in order to give Congress time to act to save the strong bipartisan whistle-blower law U.S. lawmakers passed just last year, and to retain protections for hundreds of thousands of federal employees who could be affected by an adverse court ruling.

But, as important as whistle-blowers are to keeping the government honest and accountable, this court case and regulation jeopardizes another cornerstone of the U.S. democracy, the nonpartisanship of the civil service workforce.

Since 1883, federal workers have worked in a merit-based system, immune from politics. After an election, an incoming administration from the political party in control can't just sweep through and replace thousands of federal employees. Employees also are protected from political pressure. No federal manager can fire an employee for his or her political beliefs, or solicit campaign contributions from the federal workforce.

If a new administration can simply designate your job as "sensitive" and then deem you ineligible to hold that "sensitive" position, the civil-service system pretty much collapses. To me, the potential collapse of a nonpartisan, professional federal workforce seems much more important to U.S. national security than a commissary employee's knowledge of sunglass supplies.

This article was adapted from the blog post New Threats To Whistleblowers on the Union of Concerned Scientists blog The Equation. The views expressed are those of the author and do not necessarily reflect the views of the publisher. This article was originally published on