THE WORLD OF WHISTLEBLOWERS: ARE THEY SINNERS OR SAINTS?
Jacqueline P. Taylor, Esq.
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Turn on the television any night of the week, listen to talk radio or open any newspaper and you inevitably will discover one or more government scandals du jour. Most likely, courageous employees will be the people in the news educating you in varying degrees about the specifics of recent scandals involving government officials who have once again engaged in mismanagement, law breaking, waste, fraud, or abuse of office.

Do you ever wonder who these brave people are, how they got to you with their story, or what happens after the story is told? I do. Recent events in my own life have helped to answer those questions for me.

In the past, I listened with interest to many of these stories but I was ignorant about how the story made it into my world and what happened after the story faded. Like most people, my primary response to such revelations was to discuss them briefly with others, shake my head, and move on to the next day's news. I was too busy practicing law as a General Counsel and Senior Vice President in a commercial banking corporation to do anything more.

In 1992, my perspective and knowledge of the whistleblower arena changed, however, when, I, along with my legal partner Bruce J. Pederson and a third attorney, blew the whistle on gross indiscretions, violations of law, and mismanagement within the Resolution Trust Corporation ("RTC"). The RTC was the federal agency entrusted with the savings and loan cleanup. Suddenly, I was in the media attempting to educate the public about the most recent government scandal. I was a whistleblower risking my career and financial stability in an attempt to "let the people know" what their government was doing. My life, like so many other lives, was changed dramatically and irreversibly because of a whistleblowing experience.

One important result for me of that whistleblowing experience was that in 1996, Bruce Pederson and I formed the Denver law firm of Pederson & Taylor, LLC. Our goal was to help other whistleblowers avoid our whistleblowing mistakes, repeat our successes, and realize that there is life after the whistleblowing has run its course. Another important goal of the firm was to give potential whistleblowers wise counsel in deciding whether or not to blow the whistle, and if they decided to go forward, how to effectively blow the whistle with the least amount of personal harm.

So far, I believe we have been successful in pursuing our goals. Since its inception, our firm has been privileged to represent numerous whistleblowers, potential whistleblowers and other clients employed in federal, state and local governments, as well as in private industry.

WHISTLEBLOWING IS A SIGNIFICANT, LIFE CHANGING EVENT.

My partner and I know that whistleblowing can be a tortuous, confusing and legally dangerous event. Therefore, we attempt to guide our whistleblower clients through the maze of competing legal forums, counsel them on media relations, and advise them about the intricacies of dealing with Congress, state legislatures and other government oversight bodies. We advise them about various whistleblower strategies and the inherent risks to the whistleblower of each strategy used to promote their issues. We warn them about the various forms of retaliation, when to expect them and how to combat them. We advise our clients not only about defensive strategies, but also about how to go on the offense.

Further, we know that whistleblowing impacts not just the whistleblower but also their family and friends. Thus, we also strive to give them and their loved ones personal support and empathetic counsel when that is needed, as well as sound legal advice. We attempt to be mentors in a process that can impact everything they know, think, do, believe, or feel, in every aspect of their lives.

WHAT IS A WHISTLEBLOWER? SNITCH OR PUBLIC PROTECTOR?

How is a whistleblower defined? Today, the law and public consensus usually define a whistleblower as someone (frequently a government employee) who discloses significant acts of waste, fraud, mismanagement, law-breaking or abuse of authority by government officials or in government programs which threaten the public good. This was not always the case.

Unfortunately, during most of this century many people equated whistleblowers with tattle tales. For instance, until the early 1980s, legal indices often listed the law of whistleblowing under the word "snitch" or "informant." During the Nixon era, much of that negative attitude changed. With the advent of Watergate and the discovery of $800 toilet seats at the Pentagon, the public began to recognize the service whistleblowers were providing to taxpayers at great risk to themselves.

The term "whistleblower" was substituted in the legal treatises for "snitch" and laws began to be passed to protect these courageous employees.

WHO ARE WHISTLEBLOWERS? WHAT DO THEY WANT?

Diversity is the norm. Whistleblowers are a diverse lot. This diversity is seen in the many agencies from which they come and the varying jobs they perform. For example, since our law firm opened its doors in 1996, we have represented employees from throughout the government. We have been engaged by clients from the U.S. Attorney's Office, U.S. Geological Survey, FBI, Federal Aeronautics Administration, FDIC, U.S. Army, U.S. Fish & Wildlife Service, Colorado State University System, Colorado Department of Corrections, IRS, National Park Service, Postal Service, Colorado Department of Labor, local police and firefighters, and Department of Energy. We also represent clients who are employed by private contractors who do business with government.

Whistleblowers perform in many careers and are found at all levels of an organization. For instance, our clients are scientists and secretaries, lawyers and paralegals, managers and staff, security personnel and computer specialists, etc. They are as varied in age, ethnic background, education, profession, sex, and income as the population at large.

DESCRIBED AS SINNERS

Although whistleblowers have many different backgrounds, skills, professions, interests, and experiences, their adversaries customarily paint whistleblowers in one-dimensional negative terms. Frequently, they are described as whining, disgruntled, problem employees with low standards and little or no talent, who are seeking publicity, money or special privileges for themselves. A favorite accusation is that they are not "team players."

Often, their employers shamelessly accuse them of suffering from severe psychological problems, low morals, or serious defects in job performance. For example, at least one newspaper article reported that RTC management unfairly referred to whistleblowers as "M & Ms—misfits and malcontents." A rule in whistleblowing seems to be that the more serious the whistleblower allegation, the more hostile and one-dimensional is the employer description of the whistleblower. This is a time-tested tactic that is used to diminish the message by attacking the messenger.

Behaving as Saints

Contrary to such negative allegations by their detractors, research and scholarly writing conclude that whistleblowers usually are the opposite of how their foes describe them. My experiences with clients and personal observations agree with the conclusions of the scholars. The most consistent common denominators among whistleblowers are their ethics-driven reasons for whistleblowing, their whistleblowing experiences, and the resulting retaliation directed at them by their adversaries.

Research has shown that whistleblowers usually are described as top performers and model employees before they commence whistleblowing. They are honest, hard working, upwardly-mobile individuals, who operate with moral codes. They are team players who believe they are pursuing issues affecting the greater good of the team. That is why they blow the whistle. Afterwards, most whistleblowers are fired for trumped up reasons or forced to leave their jobs, their business communities, and often their professions due to the severe retaliation and negative professional publicity directed at them by their adversaries. Despite these severe damages, the whistleblowers risk all in pursuing the greater good.

What Are The Whistleblowers' Goals?

While diverse in most things, a constant among whistleblowers is their selflessness. Before we agree to represent a whistleblower, my partner and I always ask them about the goals they want to pursue by engaging us. Their answers are surprisingly repetitious.

Contrary to the accusations of their detractors, whistleblowers' goals usually have little to do with money, privilege or publicity for themselves. Instead, whistleblowers go public in order to protect others and hold culpable personnel responsible for misbehavior. They want to improve their place of employment. They don't want others to suffer as they have. Therefore, the primary goal whistleblowers usually seek is accountability for misbehavior and correction of the problems they see in the work place.

Further, they desire honesty in government and want to end violations of law. Therefore, they seek legal recourse in an effort to force their adversaries to comply with the law and to corroborate their concerns rather than as a mechanism to gain personal privilege or a monetary windfall. If money is discussed at all, it is usually at the bottom of their list of goals. When money is a goal, usually it is merely to recoup whatever they have spent or lost in pursuing the whistleblowing; it is not to reap rewards from the whistleblowing.

Many whistleblowers initially avoid any publicity. When their goal is to seek publicity, they do so in an effort to highlight the problems about which they blew the whistle rather than for personal fame. In media presentations, they usually talk about the issues rather than themselves. Instead of gaining private advantage, most whistleblowers realize that their actions will cost them money, erode privilege and generate negative publicity. Too frequently, the whistleblowing experience results in the loss of financial security and destroys the personal and professional lives of the whistleblower.

How Does a Person Become a Whistleblower?

Surprisingly, whistleblowing usually starts out in a low-key fashion. It would be described as a lamb rather than a lion. More often than not, an employee is asked to do something or observes something in the work place that she feels is somehow not right or proper. She then seeks guidance from or reports the incident to an authority figure at her place of employment. At this point, the employee does not identify herself as a whistleblower, but only wants a bona fide explanation or correction of the questioned action. After this initial questioning by the employee, however, everything escalates and the employee finds herself riding the whirlwind.

Thereafter, the management often entrenches around the issue and unfairly attacks the employee by a variety of means. Usually, the employee still believes that if she can tell her story to the right person in her chain of command, the problem will be corrected and everything will return to normal. Instead, the management chain usually closes ranks to protect its managers and the status quo. Once it becomes clear that the message is unwelcome from top to bottom, the employee next reports her concerns and subsequent retaliation to independent entities like the media, law enforcement agencies such as the Agency Inspector Generals, Congress, the Legislature or other third parties. At this point, the whistleblowing experience usually has passed the point of no return.

By now, the workplace has become polarized and management is out to discredit or destroy the employee. Finally, in desperation to halt the retaliation and to seek justice, the whistleblower pursues one or more legal mechanisms such as filing an administrative action or lawsuit. By this point, the management and most other employees are ostracizing the whistleblower. Whether or not the whistleblowing has remained within the confines of the employer or has escalated to a national media event, the employee has been irreparably harmed and her career with that employer most likely is destroyed. Some whistleblower experiences re-order the above chronology, but all whistleblowers suffer to some degree through most of the steps in the above process.

WHAT ARE THE MECHANISMS OF WHISTLEBLOWING?

Carefully Select The Battle and the Weapons Used.

When given the luxury of choice, it is important that potential whistleblowers carefully select their battles. Not all wrongs are worth risking yourself to correct. I have learned in a personal way that no public or legal process can restore to their original state all the things that are changed when one blows the whistle. Winning a legal battle and a moral victory does not equate with recouping all one's losses. The price you will pay must be worth the harm you seek to prevent or cure.

If the risk is worth the reward, then there are a number of ways to blow the whistle once that decision has been made. Many whistleblowers use a variety of available mechanisms. How the whistle is blown not only impacts the solutions sought by the whistleblower, but also impacts the type and amount of retaliation a whistleblower receives. The general rule is that the more serious and credible the whistleblower's allegations, the more aggressive the counterattack likely will be. The more widespread the whistleblower allegations are broadcast and the more obvious the identity of the whistleblower is, the more hostile any such retaliation will become.

Where to Blow the Whistle

After all avenues of internal reporting have been exhausted, the whistleblower usually turns outside her organization. The typical whistleblower platforms external to the organization are the media, the courts and administrative forums, and the Congress, State Legislatures and their oversight committees. Use of these familiar whistleblower forums garners the most hostility directed towards the whistleblower.

Other, less frequently used external mechanisms are surveys, pamphlets and white papers. These are often with the collaboration of non-profit organizations and advocacy groups that provide protective cover for whistleblowers by giving them anonymity. Sometimes external or internal hotlines, employee assistance programs and ombudsmen's offices, which provide anonymity, are available. These less used mechanisms often can be effective tools for pursuing the whistleblower's goals, while insulating the whistleblower from retaliation.

FAMILIAR WHISTLEBLOWER FORUMS

Using The Media

I believe that media coverage is the single most effective way to blow the whistle. The whistleblower's issue is disseminated in the least amount of time to the largest number of people. This mechanism also has the most immediate and emotional impact on the receiver of the message. Coverage in the media, however, also is the most difficult mechanism to secure and the one over which the whistleblower has the least amount of control. The media controls the length, tone, timing, and content of the stories. Sometimes, breaking events in high profile stories kill or delay a whistleblower story from being reported.

The number of whistleblower stories that appear in the media is limited. The type of media coverage you get defines the number of people you reach and the depth of your message. More stories appear in the newspaper than on television. More people watch television than read the newspapers. Articles in a magazine tell more of your story than coverage on the nightly radio or television news. A picture can be worth a thousand words.

The Legislative/Executive Agency Arena

Another common and effective whistleblowing mechanism is to seek assistance from Congress, a state legislature, or in some circumstances, an executive agency. This is done in several ways. A whistleblower can seek personal assistance in the form of an inquiry or letter from a specific congressional or legislative member or agency head.

She can seek the passage of a corrective law, where appropriate. A whistleblower can appear before a Congressional or legislative committee investigating a particular matter, if the committee members want to conduct such an investigation or hearing.

Finally, a whistleblower can ask an appropriate government agency to assist by: i) intervening in the matter; ii) conducting a regulatory hearing and issuing fines or sanctions if appropriate; iii) investigating the issues; or iv) conducting corrective rule-making proceedings. These legislative and executive agency whistleblowing mechanisms allow the whistleblower to seek corrective changes, as well as tell their story. They afford the whistleblower more control than using the media, but they also are beyond the whistleblower's ability to steer, except in a very general fashion.

Using the Courts and Administrative Legal Processes

The legal protections afforded whistleblowers generally have been strengthened since the Nixon era. Further, because whistleblowers seek to protect the public welfare, certain statutes have been amended to give the whistleblower more effective mechanisms to gain information and to secure compliance with the laws by miscreants.

Often, however, existing specialized statutes were amended piecemeal to include protective provisions for whistleblowers rather than enacting a single, thoughtful, consistent, governing statute. The result is that whistleblower law has become a confusing patchwork quilt, with varying degrees of protection, diverse and mutually exclusive forums, conflicting interpretations, and excessively short and varied time frames during which an employee can fit within their provisions.

Despite these drawbacks, the courts and the administrative arena are the forums where the whistleblower can get the most effective personal protection from retaliation for whistleblowing and the most comprehensive relief for the injuries they suffer at the hands of their adversaries. It also can provide an effective arena to hold culpable parties accountable for their actions in specific types of situations.

Constitutional Protections for Whistleblowers

The First and the Fourteenth Amendments to the United States Constitution prohibit federal, state and local governments from retaliating against workers who express reasonable dissent on matters of public concern. The case law developed pursuant to these amendments reinforces this right, with some caveats. The courts have also interpreted the Constitution to protect other worker rights in appropriate situations. For example, they recognize the right to be free from unreasonable search and seizure, such as secret telephone wiretaps, and the ability to freely associate with others, whether or not you employer approves.

Statutory Protections for Whistleblowers

In addition to Constitutional protections, there are two general categories of statutes which give the whistleblower a court or administrative cause of action. The first are laws that allow the whistleblower to sue to gain information or secure compliance with laws governing others. The second of these are laws that allow the whistleblower to sue to fix wrongs directed at her in the employment arena. The following is a brief description of some of the more important statutes in both areas.

Federal False Claims Act

This is a complex law that was passed during the Civil War and has been amended since then. It gives citizens the right to sue entities or persons committing fraud against the Federal Government. The lawsuit is filed under seal on behalf of the United States. A qualified individual sues the fraudulent contractor for the amount of money by which the government has been overcharged or defrauded, plus specified penalties and fines. Thereafter, the government has the right to intervene and take over the lawsuit. If the government contractor settles or loses the lawsuit, the individual bringing the suit is given a specified percentage of the recovered damages. The percentage varies depending on certain factors such as whether or not the government intervened and the work contributed by the private citizen. This statute contains provisions intended to protect whistleblowers who sue under the Federal False Claims Act.

Freedom of Information Act/Privacy Act

The Freedom of Information Act is a law that allows individuals to obtain a variety of types of information collected, held and maintained by the Federal Government. The Privacy Act protects from dissemination certain information about individuals, but it also allows a whistleblower to secure information held and maintained by the Federal Government that pertains to that whistleblower. Many state and local governments also have similar laws that govern information collected and maintained by them.

Equal Employment Opportunity Act/Title VII

Title VII of the Civil Rights Act of 1964 protects an employee or group of employees who have been discriminated against in the work place on the basis of sex, religion, age, race, or national origin. It allows them to sue to secure equal treatment in the work place and to recover actual and consequential damages. Actual damages are out of pocket expenses such as medical and counseling bills. Consequential damages include personal harms such as pain, suffering, professional and emotional damage resulting from the discrimination.

Americans with Disabilities Act/Rehabilitation Act

These two laws protect government and private employees who have been discriminated against on the basis of certain disabilities. The Rehabilitation Act covers federal employees. The ADA protects private employees. Both allow the injured employees to sue to recover actual and consequential damages resulting from the discrimination.

Age Discrimination in Employment Act

This law allows employees over the age of 42 years old who have been discriminated against on the basis of their age to sue their employers for actual and consequential damages incurred as a result of the discrimination.

Civil Service Reform Act/Whistleblower Protection Act and its 1994 Amendments

The above statutory provisions encode the primary federal statutory scheme intended by Congress to protect whistleblowers. The main administrative mechanisms by which the Congress attempted to provide whistleblower protection for federal employees was through the Merit Systems Protection Board ("MSPB") and the Office of Special Counsel ("OSC"). Generally speaking, the MSPB gives relief to the employee for adverse employment actions taken against them in retaliation and attempts to restore the employee to the position she was in before the improper employment actions occurred. The OSC investigates retaliation complaints and prosecutes the most egregious cases before the MSPB. It provides whistleblowers with a forum in which they can impose accountability and seek discipline against a supervisor who improperly retaliates against the whistleblower. If the whistleblower fails to secure a just and reasonable decision before the MSPB, the statutory scheme usually gives the whistleblower a right to appeal the situation and decision into the Federal Circuit Court of Appeals.

Environmental Whistle Blower Statutes/Department Of Labor

Throughout the multitude of federal and state environmental statutes there are numerous whistleblower protections and penalties imposed upon those who retaliate against environmental whistleblowers. These statutes vary in the protections and remedies afforded whistleblowers. If these protective provisions in the environmental statutes are violated, the federal law allows the whistleblower a right to seek relief in an administrative process that is administered by the Department of Labor.

Federal Tort Claims Act

This is a statute that allows an injured party to sue the federal government for defined types of conduct resulting in injury, known as torts. The statute requires that before suing the government, a potential plaintiff must, within strict time frames, give written notice to specific entities within the government. The statute does not cover all torts and the resulting injuries.

Bivens Lawsuits

When the federal statutes do not give an injured whistleblower the right to sue the federal government for a wrong done to them, the law sometimes allows the injured party to sue the individual federal employee who committed the injury. The whistleblower sues the government perpetrator in his private capacity. If the whistleblower wins the lawsuit, she collects damages from the perpetrator's personal assets. The U.S. Supreme Court created this constitutional tort in the early 1970s. This is called a Bivens suit.

State Statutes

There are a variety of state and local statutes that attempt to protect public and private sector whistleblowers and give them relief for injuries suffered by them at the hands of their employers and others. These laws often mirror similar federal statutes. They differ widely on what constitutes a protected disclosure, retaliation and procedures for seeking redress.

Union and Agency Grievance Processes

Many different grievance processes are available to whistleblowers throughout the government workplace. If the workplace has a union and the whistleblower is a member, there is a union grievance process available to her. These frequently provide for actual and compensatory damages and give the worker a right of appeal out of the workplace, into a more independent forum. Internal grievance processes often are available in most government workplaces, whether or not they have a union. These internal grievance processes usually are limited in the relief offered, are conducted by members of management, and offer no appeal outside of the employer to an independent decision-maker.

SELECTING THE LEGAL FORUM AND CAUSE OF ACTION

Whistleblowers should use extreme care when selecting the forum in which they attempt pursue their legal rights and seek redress for injury done to them. The above statutory schemes usually require that a litigant pursue her legal rights in an administrative arena before she is allowed to pursue them in the Courts. Sometimes a specific administrative proceeding is conducted in a manner that is counterproductive to the result the whistleblower is seeking. For example, the rules of allowable and relevant evidence vary greatly amongst these forums. Further, most of these statutes impose strict and differing time frames within which the whistleblower must institute the proceeding or forever be barred from pursuing her legal rights to seek relief. It is not unusual to require that a whistleblower take an action within five to ten days or be barred from proceeding further.

Sometimes, if a whistleblower elects one forum, she is barred from pursuing her rights in any other forum. This is true even if the initial forum was mistakenly elected and was not the appropriate legal arena within which to pursue the issue. Finally, many of these statutory schemes require that the whistleblower jump through defined hoops, each with a deadline and in a specific order, or the proceeding will be terminated.

I believe that unless a whistleblower is very familiar with the legal statutory mechanisms she intends to invoke, she should seek the legal counsel of someone who is trained or knowledgeable in the area. Optimally, she will seek this advice before she blows the whistle. At the latest, she should seek this advice as soon as she learns that any hostile or retaliatory action has been taken against her.

In my opinion, whistleblowers are saints, not sinners. They perform a selfless and valuable service for society. They strive to protect our government, enforce its enacted laws, and promote society's stated ethics. This is all done at great risk to themselves, their careers, and their loved ones. Without their acts of courage, our world would be a more dangerous, deceitful and difficult place. Next time you see one of these whistleblowers in the media or hear their stories being discussed by others, honor their courage by carefully listening to their story. If you agree with their position, support them. Your assistance can take the form of voicing your approval to the persons around you, writing the whistleblower with moral support, or publicly joining them in their fight to improve our government and society.

Jacqueline P. Taylor has her own law firm and is in partnership with Bruce J. Pederson. They have a litigation practice that emphasizes representing plaintiffs/employees in the employment and whistleblower areas listed in this article.

Ms. Taylor attended Carleton College and the University of Minnesota. In 1978, she graduated from William Mitchell College of Law, cum laude. She is admitted to practice law in Colorado and Minnesota. Mr. Pederson is admitted in Colorado and Virginia. Ms. Taylor and Mr. Pederson are nationally known whistleblowers who have appeared in numerous media presentations and before Congress on multiple occasions. In 1993, they jointly won the prestigious Cavallo Award for Courage in Government and Business.

Ms. Taylor can be contacted by mail: Pederson & Taylor, LLC, 143 Union Boulevard, Suite 900, Lakewood, Colorado 80228 or by telephone: 303.980.9091. Her email address is jptaylor1@aol.com.