Whistling in the Wind

In a rage for transparency and even within the context of “draining the swamp,” there is a strong bi-partisan belief that waste and government corruption (or just plain “inappropriate” government action or inaction) requires that those dreaded “whistleblowers” be protected from retaliation. As we have seen repeatedly, that seldom happens, but there is a federal agency – at least vis-à-vis the federal government – that is charged with making sure that such retaliation simply does not occur.

According to FederalPractice.com, the Website of a private law firm that represents federal employees dealing with such retaliation claims, “Known as the Office of Special Counsel, the OSC is an independent federal agency which seeks to protect current federal employees, or those seeking federal employment, from practices related to the handling of personnel in a variety of scenarios. The OSC provides critical protection for federal workers against retribution related to whistleblowing, prohibited personnel practices and violations of the Uniformed Services Employment and Reemployment Rights Act, or USERAA as well as the Civil Services Reform Act, which created the OSC in 1978.

“Additionally, the OSCR [the “R” is for retaliation/retribution] is a safe means for federal workers who wish to disclose information about workplace violations of virtually any type, as well as forcing compliance with the Hatch Act which places legal restrictions on political activity within the workplace. Any engagement with the OSC in terms of filing a claim should be at the guidance of a proven attorney in order to provide the best possible chance at success.” In short, you cannot trust the federal government to act properly, when you are a whistleblower, unless you have your own lawyer?! Ouch!

But we are facing something never before seen since the various whistleblower statutes were passed: a president with substantial business interests – even if the day-to-day administration is relegated to “others” (are those “others,” the children of that president, really free from discussions and influences from their dad anyway?) – that are subject to numerous federal laws and regulations.

Federal employees have been and are going to be charged with enforcing those laws and regulations, efforts which could prove very costly to the president himself. See a problem there? Not just those appointed by the president but down and dirty tenured civil servants and congressionally-approved appointments from earlier administrations. Donald’s not getting rid of most of his major companies; he’s even maintaining his executive producer credit on NBC’s The Apprentice.

And while there are plenty of conflict-of-interest provisions against most federal employees, managers, vendors and elected/appointed officials, the president himself is remarkably free from any of such statutory restrictions. There is one area where the president is still covered, but there are real questions as to how complete this provision might be against his purported conflicts. The Emoluments Clause of Article I, Section 9, prohibits any “Person holding any Office of Profit or Trust under [the United States]” from accepting “any present, Emolument, Office, or Title, of any kind whatever, from any King, Prince, or foreign State.” Only specific congressional consent validates such exchanges. Not much in the way of clarity in a business context, which thus places the onus of the conflicts mostly on the individual federal employees charged with enforcing the law against businesses in which the president has a serious economic interest.

Washington Post (Federal Insider, December 22^nd) writer Joe Davidson, posits the issues this way: “[Federal agency] retributions against employees generally don’t involve retaliation on behalf of an outside party. That’s behind what OSC says the Bureau of Indian Affairs (BIA) did to an unidentified staffer after he complained that oil and gas lease agreements between energy companies and the Southern Ute Indian Tribe in Colorado appeared to violate BIA regulations and environmental laws.

“‘The employee’s disclosures angered a Native American tribe, and the tribe put pressure on the highest levels of BIA and the Interior Department to reassign the employee from the BIA’s office on the tribe’s reservation,’ read an OSC statement [in mid-December]. BIA fired the employee in 2013. He was reinstated with back wages and compensatory payments in an agreement OSC negotiated.

“In normal times, this case might not make this column. But Donald Trump’s Electoral College victory [having lost the popular vote] makes these times abnormal.  With the president-elect’s extensive business and financial holdings, this case could have larger implications. There’s been much attention to potential conflicts for Trump and his family. Yet, his businesses could present conflicts for federal employees, too.

“For example, if Trump doesn’t completely divest his business operations and one violated federal regulations, would agency staffers hesitate to impose enforcement actions that could harm the boss’s financial interests? If the regulations were not enforced, would workers fear being retaliated against for disclosing that dereliction of duty?

“In BIA’s case, the ‘failure to defend its employee and, instead, to cave to a retaliatory demand is a PPP (prohibited personnel practice),’ OSC’s 17-page report said. ‘The chilling effect is clear: BIA employees are silenced from disclosing violations of law if they anticipate that such disclosures will be unpalatable to a Tribe and that BIA will simply bend to the Tribe’s will.’

“[Special Counsel Carolyn Lerner] told The Washington Post that ‘federal managers need to abide by merit system principles, even when there is outside pressure to retaliate. It’s important for the federal workforce to know about this case to help deter future acts of retaliation. It’s vital that federal managers protect employees who anger outside interests when they uncover potential wrongdoing as a part of their job.’

“Whatever implications stem from this case will be played out in the context of the disturbing news that the Trump transition team asked the Department of Energy (DOE) for the names of individual employees and contractors who attended conferences on climate change, a global phenomenon Trump called a hoax. That inquiry worried workers concerned that there could be reprisals from incoming Trump officials for work done on policies he opposes.

“The OSC enforcement action in the Southern Ute case ‘sends a strong signal that agencies must not retaliate against whistleblowers to mollify key stakeholders,’ said Jason Zuckerman, a Washington lawyer specializing in whistleblower retaliation. ‘The troubling questionnaire that the Trump transition team sent to DOE to identify scientists performing research on global warming suggests that regulated industries might view the new administration as an opportunity to punish federal workers for enforcing regulations or force federal workers to abandon investigations or enforcement actions for political reasons.’

“In a letter to its members, the Southern Ute Tribal Council said OSC misrepresented it ‘as actively trying to skirt environmental regulations, then seeking retaliation for a BIA employee ‘whistleblower’ who had refused to let environmental mandates slide. This is simply not the case.’ The Tribal Council said it wanted the employee replaced because of incompetence, disrespect and ‘disregard for the Tribe’s sovereignty.’

“The BIA ignored most of my questions, saying only it appreciated OSC’s review and intends to comply with its requests for the worker’s reinstatement and compensation.

“Federal employees who enforce regulations ‘may be understandably reluctant to put objections, stipulations and cautions in writing for fear that it may cause them to be put on White House hit lists,’ said Jeff Ruch, executive director of Public Employees for Environmental Responsibility. Enforcing rules that conflict with Trump administration policies, under ‘a chief executive who is so thin-skinned that he regularly gets into Twitter-spats with actors about comedy skits,’ he added, ‘may require a profile in courage.’”

One thing for sure, thanks to an “obscure provision in the IRS manual” introduced during the Nixon-era Watergate scandal, “When Donald Trump is sworn in as the nation’s 45^th president, his complex business empire will immediately be subject to an audit by the Internal Revenue Service… Trump and his vice president, Mike Pence, will each be under a mandatory audit annually.” mcclatchydc.com, November 29^th. Wouldn’t you like to be named to that audit team?!

Exactly how would you feel enforcing a law or regulation against the financial interests of your top boss, an individual with a notorious reputation for massive retribution against anyone who crosses him or his interests? Might feel like skipping over that one, right? Taking on a strongman can be life-changing… in a very bad way. So exactly what are the checks and balances against a rich president, with lots of federally-regulated businesses, if not the government of the people, by the people and for the people?

I’m Peter Dekom, and the Chinese curse – “may you live in interesting times” – is definitely upon us.