Merit Systems Protection Board ( MSPB ) - Status Quo

Are you surprised? We're Not

January 9, 2009 - In a move that shouldn’t surprise anyone, the current administration – after rushing to fill the vacant position of Chief of the United States Park Police prior to the new U.S. President taking office (see story below) – rushed to release the latest opinion and order by the Merit Systems Protection Board (MSPB) in Chief Chambers’ case just 12 days before the current administration leaves office. It did so even though one of the three MSPB positions is vacant, leaving only the two Republican-appointed members to render a decision to give it the appearance of being unanimous.

You will recall that in February 2008 the U.S. Court of Appeals for the Federal Circuit determined that the MSPB “applied an incorrect standard” in its failure to provide whistleblower protection status to Chief Chambers and sent the case back to the MSPB to correct its failure. In his review, the Chairman of the MSPB found that Chief Chambers did, in fact, make “protected disclosures.” Nonetheless, he upheld her termination, as did the second board member.

In discussing this further, the Chairman said that “some, but not all, of the appellant’s statements are protected.” In dismissing other statements, though, the Chairman’s application of the Whistleblower Protection Act is faulty. The test he applied to determine the existence of a reasonable belief that Chief Chambers was disclosing a “substantial and specific danger”— that she needed to show that the danger had already occurred or was “likely to occur”— is yet another atrocious example of the Board’s failure to understand the purpose of the Whistleblower Protection Act. In any dictionary, the definition of “danger” is not limited to conditions that are “likely” to cause harm; a danger is also present where there is “liability or exposure to risk” or an “unwelcome possibility.” The whole point of protecting public safety whistleblowers is that the harm has not yet occurred but that it may occur, thereby justifying the protection afforded to individuals who disclose the existence of this possibility. To be sure, the harm should not be “speculative”; but it need not be proven likely. For example, having an unguarded swimming pool certainly presents a “danger” that the toddler in the house will jump in and drown, even if it is not “ likely”  that this will actually occur because the parents try to be watchful.

Rest assured, Chief Chambers will exercise her appeal options of this decision. In the meantime let’s hope that, as an advocate of whistleblower protections, the new Chief of Staff for President Elect Obama will advocate for executive intervention in resolving this case without the need for further litigation.