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Special Counsel warns against targeted monitoring of whistleblowers

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The U.S. Special Counsel on Wednesday warned that agencies could be reprimanded for targeting whistleblowers and monitoring emails that report wrongdoing.

In the memo, Special Counsel Carolyn Lerner said that targeting emails between whistleblowers and the OSC or inspectors general for surveillance is “highly problematic.” Agencies that deliberately target whistleblowers’ submissions or draft submissions to OSC or IGs could be accused of retaliating against the employees, Lerner said.

“This is the first finding that we are aware of in which a government agency has stated that there are limits on how federal agencies can monitor employee email,” Stephen Kohn, executive director of the National Whistleblowers Center, said in an interview.

The guidance comes fives months after six current and former Food and Drug Administration whistleblowers, whom Kohn represents, filed a lawsuit claiming that top FDA managers monitored and seized emails from their personal email accounts.

FDA fired two employees and did not renew contracts for two others.

The matter is pending in the U.S. District Court of Washington and at the OSC, which launched an investigation to determine whether the FDA broke personnel rules

The FDA case alone didn’t prompt OSC to release the memo, OSC spokeswoman Ann O’Hanlon said in an interview. The Council of the Inspectors General on Integrity and Efficiency had requested guidance from OSC about electronic monitoring policies.

While agencies have a right to monitor employee emails and business conducted on government-issued devices, “federal law also protects the ability of workers to exercise their legal rights to disclose wrongdoing without fear of retaliation,” Lerner said.

She also urged agencies to ensure their electronic monitoring policies do not interfere with or deter employees from reporting fraud, waste and abuse.

“There has to be a bottom line that you can’t target whistleblowers,” Kohn said.

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Proposed whistleblower protections for contract employees passes committee

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A Senate bill that would give federal contract employees the same whistleblower protections as federal employees passed the Senate Homeland Security and Governmental Affairs Committee today.

Senate bill 241, introduced by Sen. Claire McCaskill, D-Mo., would protect contractors who report improper spending or management on federal contracts from retaliation.

Contract employees who witness contract fraud currently can bring a civil claim, in the name of the government, against contractors under the False Claims Act. If the claim is successful, the whistleblower could receive up to 30 percent of the recovered funds.

However, the False Claims Act does not protect whistleblowers who witness waste, mismanagement and other illegal activities, the Project on Government Oversight (POGO) said in a statement Wednesday. POGO and other government accountability groups voiced support for the bill earlier this week.

“These contractors are on the front lines and often put themselves at great personal risk to protect the public and expose waste,” POGO said. “This new act would bridge the gaps in current coverage, and comprehensively apply best-practice protections similar to those in the stimulus to all federal funds recipient whistleblowers.”

Under the bill, contract employees that have been demoted, fired or otherwise discriminated against for reporting contract waste and abuse could submit a complaint to an inspector general. The inspector general would then have 180 days to decide if they want to investigate the complaint. If the complaint is investigated, the inspector general must report the findings to the employee who made the complaint, the complainant’s employer and the head of the government agency holding the contract.

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Bill extends whistleblower protections to contractors

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Government contractors who blow the whistle on improper use of federal dollars or unethical behavior would be protected against retaliation under a bill introduced by Sen. Claire McCaskill, D-Mo.

Recent laws that extend protections to some contractors have created a patchwork of inadequate protections, McCaskill, chairwoman of the Senate Contracting Oversight Subcommittee, said during a hearing Tuesday.

For example, whistleblower provisions added for defense contractor employees in 2008 do not protect contractors from retaliation by a government official nor does it cover subcontractors.

Senate Bill 241 would extend whistleblower protections to all government contractors and subcontractors, and consolidate some of the current whistleblower provisions for contractors.

McCaskill introduced the same bill in 2009.

Walter Tamosaitis, who worked for a subcontractor on an Energy Department nuclear waste treatment project in Hanford, Wash., testified that was kicked off the project and moved to a basement office after he raised technical design problems that could cause safety issues. Addressing the concerns would have kept the prime contractor, Bechtel, from finishing on time and collecting a $5 million award fee, he said.

“It’s a very visible example of what happens when you speak up,” he said.

Tamosaitis is now taking Bechtel and the Energy Department to court. Bechtel National spokesman Jason Bohne said the company is contesting all allegations of wrongdoing in Tamosaitis’ case.

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MSPB won’t reconsider air marshal whistleblower’s firing

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The Merit Systems Protection Board will not rethink its 2009 decision upholding a whistleblower’s firing, even though the Office of Special Counsel said it poses “a substantial risk of chilling would-be whistleblowers.”

Former Air Marshal Robert MacLean in 2003 told the press that the Federal Air Marshals Service was pulling marshals from cross-country flights (because it couldn’t afford hotel rooms), at a time when the nation was on alert for hijackings. The Transportation Security Administration fired him in 2006, and MacLean says they retroactively designated the information he revealed as sensitive security information to justify his firing.

MSPB in 2009 upheld a court decision that backed TSA, but last month the Office of Special Counsel asked MSPB to reconsider. MacLean told Federal Times that MSPB called his attorney Sept. 6 and said it would not overturn its decision. MSPB confirmed to Federal Times it would not reopen the MacLean case, and said it sent his attorney a letter Aug. 31 that said its regulations don’t allow it to reconsider its rulings.

Despite this setback — the latest in a string of them — MacLean said he’s not giving up. He plans to file an appeal with the Federal Circuit Court of Appeals by Sept. 23.

UPDATE: MSPB points out that to be precise, it has decided not to review its July 2011 decision, which denied MacLean’s petition to review its previous 2009 decision that upheld his firing. Which still effectively means MSPB isn’t going to revisit the 2009 decision. MSPB also says it hasn’t issued a formal response to the OSC’s motion in this case.

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Former U.S. special counsel charged with contempt

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Scott Bloch, who led the Office of Special Counsel during the Bush administration, was charged with criminal contempt of Congress on Thursday, Reuters reports.

Bloch was forced out of office  in October 2008 after a tumultuous term that culminated in FBI agents raiding his office and home. They were searching for evidence that he obstructed justice during a federal investigation into whether he retaliated against employees who disagreed with how he managed the agency, which is charged with protecting federal whistleblowers and other employees from retaliation.

Bloch was widely suspected of having his computer wiped clean of files that may have supported the claims of retaliation leveled against him. Bloch insisted he had his computer scrubbed because it was infected with a virus.

Bloch “unlawfully and willfully withheld pertinent information from the committee” about the erasure during an interview with federal investigators in March 2008, according to a criminal information filing by prosecutors in U.S. District Court, Reuters said. Prosecutors charged Bloch with criminal contempt of Congress.

Such criminal information filings are typically used when a defendant plans a plea agreement with prosecutors, resulting in a guilty plea, Reuters reported. Bloch’s lawyer, William Sullivan, declined to say whether his client would plead guilty but said he was glad the five-year investigation was over for his client.

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One year later, no special counsel

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Something I’ve been wondering lately, both because Barack Obama the presidential candidate said a lot of good things about whistleblowers, and because I spent a not-inconsequential part of 2008 reporting on Scott Bloch: Why hasn’t the White House appointed a new special counsel?

I know President Barack Obama still has hundreds of positions to fill. But the top job at the Office of Special Counsel would seem to be an important one. The agency hasn’t had political leadership since October 2008, when the Bush administration forced Bloch to resign.

OSC employees I’ve talked to generally say the agency needs some reorganization, but William Reukauf, the acting special counsel, told me last year that he planned to act as a caretaker. Reorganization, in other words, would have to wait for political leadership. He told Government Executive in May that the agency is “looking forward anxiously” for a new political leader.

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Wikileaks critics: Post on bomb-jamming crossed the line

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While most people who aren’t former Nixon staffers or convicted Watergate criminals agree that Mark Felt did the right thing by talking to Bob Woodward, not all leaks are as cut and dry. Wired posted a blog entry yesterday that says someone has uploaded a classified report to Wikileaks on the military’s Warlock radio-frequency jammers, which soldiers use to cut off signals to remotely detonated bombs used by Iraqi insurgents. (The Wired blog has some profanity.)

The four-year old report contains information on how the jammers work, such as what frequencies they stop. Though the models described in the report are not as widely used today as they once were, some are upset that the details have been revealed.

Even Steven Aftergood, director of the Project on Government Secrecy for the Federation of American Scientists, thinks Wikileaks went too far:

Wikileaks says that it publishes restricted documents that are “of substantial political, diplomatic or ethical significance.” Its publication makes sense only from the perspective that all secrecy is wrong and should be resisted. It’s not a perspective that I share.

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FBI's Mark Felt, AKA Deep Throat, dead at 95

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Mark Felt, the former associate director of the FBI who helped break the Watergate scandal, died yesterday at 95.

Felt, who for decades hid his role in the scandal and was known only as Deep Throat, was the consummate whistleblower. As a career agent and the number two man at the FBI, Felt had firsthand knowledge of how the Nixon administration tried to sabotage the Bureau’s investigation into the Watergate burglary. He used that information to guide Washington Post reporters Bob Woodward and Carl Bernstein as they dug into the scandal.

Felt’s “Deep Throat” moniker, which was given to him by a Post editor, has since become a slang phrase for any well-placed source, especially one in the government.

Side note: Watergate aficionados can visit the parking space where Woodward and Felt held their late-night meetings in the bottom level of the parking garage at 1401 Wilson Blvd. in Arlington, Va.

In July, I met with Brad Bunn, the program executive officer in charge of the Pentagon’s National Security Personnel System, in his office at that location. As our interview began, Bunn told me about the garage’s historical importance. I then suggested that Bunn and I put on trenchcoats and continue the interview downstairs.

Bunn nixed my idea. “It’s way too hot for trenchcoats,” he said.

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Scott Bloch's resignation letter

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As we’re reporting on the Federal Times Web site, Special Counsel Scott Bloch announced his resignation — he’s leaving office on Jan. 5, the scheduled end of his five-year term. He made the announcement in a letter to the president (pdf) earlier today.

Bloch had the option to stay for one more year (or until the Senate confirms the next special counsel, whichever comes first), but he declined to stick around.

Bloch’s announcement is true to his word from an interview two months ago, when I asked Bloch about the increasingly vocal calls for his resignation:

But when asked about the criticism, Bloch rejected the idea that his office has a morale problem; he said he has every intention of finishing his five-year term, which ends in January.

“I’ve had those calls since I came in,” Bloch said. “But I’ve done my job. I’ve almost filled out my term, and I’ll go when I want to go.”

A spokesman for Bloch’s office said there was no particular reason why he was leaving on Jan. 5. “It’s pretty self-explanatory,” he said.

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