Jacob Wang (PO’ 21)
On October 12, the United States House of Representatives passed the Dr. Chris Kirkpatrick Whistleblower Protection Act of 2017 on a 420-0 vote, with 232 Republicans and 188 Democrats voting in favor of the legislation. Such a bipartisan cooperation is a rare occurrence in the U.S.’s growingly polarized and divided polity. This is indicative of the lack of partisanship in whistleblower protections, and that these protections are seen to benefit the American public as a whole. The passage of Dr. Chris Kirkpatrick Whistleblower Protection Act of 2017 is significant because it systematizes the procedure for both filing complaints against retaliation and penalizing vengeful supervisors. This protects the public interest because it ensures the protection of rights of whistleblowers, which guarantees the transparency and lawful practices of organizations.
Dr. Chris Kirkpatrick, from whom the law borrows its title, was a 38-year-old clinical psychologist in Tomah Veteran Affairs Medical Center in Wisconsin. Kirkpatrick, employed on a probationary basis, noticed a pattern of overmedicating patients in the medical center. After Kirkpatrick lodged a complaint with his supervisor regarding this overmedication, a disciplinary meeting ensued and presented Kirkpatrick with a written reprimand. A few months later, Kirkpatrick was dismissed from the Medical Center, and he shot himself in the head, likely because of the expulsion. Afterwards, a Veteran Affairs investigation legitimized Kirkpatrick’s criticisms of his medical center: “Tomah veterans were 2½ times more likely to get high doses of opiates than the national average.” Thus, Dr. Kirkpatrick was reprimanded for calling attention to a problematic practice that was, in fact, occurring; he was a whistleblower.
“Whistleblowers” are employees who report either an organization’s or employer’s gross management, waste of funds, violation of laws, or a substantial danger to public health or safety. Reprisals of whistleblowers often come in the forms of demotion or expulsion, because organizations have an incentive to prevent whistleblowing. Exposing an organization or employer’s problematic practices can have a negative effect on their reputation and bottom line. Thus, the federal government has stepped in to provide legal protections for whistleblowers in the interests of the public. Intrinsically, the existence of whistleblowers is greatly beneficial to both the concerned organization and the public. For example, a righteous employee can prevent the escalation of an issue by pointing it out in a timely manner. Additionally, if the employer decides not to resolve the issue, employees are at a unique position of being the only ones to spot and report the problems to a higher authority, potentially saving millions of dollars for the federal government.
Protections for whistleblowers were first enacted by the passage of the Civil Service Reform Act of 1978. Since then, the federal government has passed many statutes to ensure the protection of the interests of whistleblowers, both in public and private sectors. Most significantly, the Whistleblower Protection Act of 1989 was the first comprehensive law that outlines the rights of employees and procedures for filing retaliation claims against supervisors. Despite explicit statutes that outlaw retaliations against well-intended whistleblowers, such incidents remain pervasive in many federal agencies. For example, in 2016, over 1,100 Veteran Affairs employees filed retaliation claims against their employers. In 2015, 87 complaints were received claiming the Transportation Security Administration’s had engaged in unfair treatment of its whistleblowers. Clearly, the laws in place were not sufficient to deter federal organizations from retaliating against whistleblowers; therefore, a more stringent and comprehensive statute was needed.
The Dr. Chris Kirkpatrick Whistleblower Protection Act satisfies this need. Most importantly, the new act specifies an unequivocal penalty for those federal employers who retaliate against employees. For the first instance of violation of the act, the employer is subject to a suspension of not less than 3 days, while an immediate removal from position occurs at the second instance. Previously, the whistleblower protection statute suggested any of the following disciplinary actions imposed by the United States Merit Systems Protection Board: removal, reduction in grade, debarment from federal employment for a period not to exceed five years, suspension, reprimand, or an assessment of civil fines up to $1,000. However, the grey area in the regulation enabled federal agencies not to assign the most severe or just sanction on the supervisors. For example, in 2010, three officials at Dover Air Force in Delaware were accused of retaliating against four employees for raising concerns about several service members’ corpses. After a thorough investigation, two of the officials were demoted while the other merely received a letter of reprimand; though the Office of Special Counsel (OSC) questioned the thoroughness of Dover Air Force’s investigation and criticized its refusal to fire those three officials, OSC did not have the jurisdiction to impose a more strenuous action. The new law effectively eliminates the grey area and subjects responsible supervisors to clear-cut expectations.
Second, the Kirkpatrick Whistleblower Protection Act of 2017 necessitates the report of any incident of employee suicide to the Office of Special Counsel. Such mandatory reporting compels employers to be more mindful of the psychological state of their employees and deters them from deliberately harassing whistleblowers. What’s more, the bill also requires mandatory training of both the supervisors and employees on the rights of whistleblowing and consequences for reprisals. This is important because it enables employees to be more cognizant of their rights and legal procedures for filing claims against their revengeful supervisors, which lowers the unnecessary escalation of issues.
Almost four decades after the enactment of the first whistleblower protection legislation, the Dr. Chris Kirkpatrick Whistleblower Protection Act of 2017 maximizes the rights of those righteous employees who have the courage to speak up against injustices in the federal agencies. Hopefully, revengeful instances such as the unjust reprisal of federal supervisors against whistleblowers will be long buried in history.