Do you believe that an employee working at a Defense Department commissary holds a position “sensitive” to our national security? If you answered, “No,” think again. Recently a federal judge held that someone who works at a base commissary could get valuable information about troop movements by observing how many sunglasses were ordered. Really? I think a terrorist 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 rulemaking that could have far-ranging implications. What happens in the next few months could shake the foundations of our civil service system and vastly weaken whistleblower protections for all federal employees, including federal scientists, protections that were strengthened only months ago.
Blowing the whistle
The term “whistlebower” 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. FDA whistleblowers 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 first to 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 Obama, Congress passed a bipartisan whistleblower 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 whistleblower status.
But not all federal agencies seem to be singing from the same hymnbook. Two federal agencies, the Department of Defense and the Office of Personnel Management, are engaged in a legal fight that could create a huge loophole for federal managers who want to evade the new law.
Creating a loophole
Which brings us back to the commissary employee. The Defense Department 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 Department found that neither worker was eligible to hold these positions, which the agency had designated “non-critical sensitive.” The workers appealed these job actions to an independent quasi-judicial executive branch agency, the Merit Systems Protection Board (MSPB). The MSPB agreed to hear their appeals.
But both the Office of Personnel Management and the Defense Department 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 Defense Department, and the case now is under appeal. Republican Senator Chuck Grassley (R-IA) has raised concerns about this court case and its potential impact on whistleblowers, as has Democratic Representative Elijah Cummings (D-MD). (The Department of Justice, in a brief supporting the two agencies, stated that this ruling should not apply to whistleblowers. But DOJ didn’t explain how whistleblowers could actually be excluded from this retaliation by designation.)
In the meantime, the Director of National Intelligence and the Office of Personnel Management have added fuel to the fire, proposing a rule that would give agencies almost boundless power to designate virtually any government job as “sensitive.”
(Not) playing by the rules
The proposed rule makes clear that a non-critical sensitive designation does not give you access to classified information. It just means that the work you do could “have the potential to cause significant or serious damage to the national security.” It 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 CDC? Your knowledge of infectious diseases likely would make you a candidate. An engineer for the Army Corps of Engineers working on bridges or dams? Slap a “sensitive” label on your job, too. An FDA scientist that 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 whistleblower coalition is monitoring this decision and this regulatory proposal very carefully. We believe that the Defense Department and Office of Personnel Management 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 whistleblower law our 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 whistleblowers are to keeping government honest and accountable, this court case and regulation jeopardizes another cornerstone of our democracy, the nonpartisanship of our 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 our national security than a commissary employee’s knowledge of sunglass supplies.