With the recent news story about NSA spying on ’email metadata’, we are made all the more aware that we do not know (and may not trust) if our government is looking into our emails, too. We also realize, we need to understand the hazards faced by Whistleblowers, and why they cannot just report a problem into their organization — or to the other government entities (like OSC and MSPB) intended to support Whistleblowers….
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Suppose you are a Federal employee, working for Agency-X, and for years you have seen a routine practice that exposes the public to unnecessary risk; a problem that likely will eventually cause someone to be killed in an accident.
The legal process for a typical Whistleblower:
In a normal scenario, a Whistleblower speaks up about a problem, then endures retaliation, then files a complaint ‘hoping’ to be made whole after the retaliation.
For Federal employees, adjudication of that complaint is done by the Office of Special Counsel (OSC) and/or the Merit Systems Protection Board (MSPB). These are both quasi-judicial entities, crafted by Congress in the 1970’s, with rigid and legalistic procedures.
A typical Whistleblower has zero legal knowledge, but does his/her best to correctly submit the paperwork and navigate the process at OSC and/or MSPB. The typical Whistleblower, inclined to be idealistic (or some might say naive), goes into this process with no awareness that both OSC and MSPB have horrible histories, in which they drag out the process and drain the Whistleblower’s energy and spirit, almost always siding with the agency.
You say to your coworkers, ‘hey, we need to change this’; some of them quietly agree but take no action, and some of them start to distance themselves from you. You elevate the concern to your manager, and they simply blow it off. You elevate it to a higher manager or an office at the Agency-X national headquarters, maybe even a hotline intended to intake such concerns. The next thing you know, your loyalty and performance are being questioned, and YOU are being subjected to regular scrutiny, minor discipline, and other disparate actions.
You think, ‘wow, this is weird, I have served fifteen years here, been well recognized, done a lot of good things, and yet now I am a ‘problem’ because I try to help us all do better … weird’. The discipline escalates, maybe you even get fired. When you receive your first letter formally declaring an ‘adverse action’ (they decided to fire you or suspend you for more than 14-days), the boilerplate at the end of the letter informs you of your right to file an appeal at MSPB. Of course, you know nothing about MSPB, but on the other hand, you are thrilled at the opportunity to have your case objectively reviewed away from the corruption you are increasingly seeing within Agency-X. You file the MSPB Appeal papers and proceed toward an eventual hearing before an Administrative Judge (AJ).
A point needs to be emphasized: you are a Federal Whistleblower, but you have no legal training. So, even the paperwork (a.k.a., ‘pleadings’) format used at MSPB is quite daunting to you. On the other hand, you are now engaged in an adversarial relationship before MSPB. Your adversary is a trained attorney, serving within the Agency-X legal office. Most likely, your adversary handles MSPB cases all the time, and even knows the AJ well enough that they would say ‘hi’ to each other in a grocery line. You, on the other hand, are just a hard-working, concerned Federal employee who blew the whistle and is trying to be made whole for the improper retaliation done to you by a rogue Agency-X manager. You are climbing a steep learning-curve, slowly acquiring an understanding of how the legal process works. You engage in ‘Discovery’, seeking to compel Agency-X to produce emails and other records you know exist, and which will prove to the AJ that you were indeed retaliated against.
So how does Attorney-Client Privilege impact a Whistleblower?
A closer look at Attorney-Client Privilege
Most of us have no idea what the term “Attorney-Client Privilege” means, until we are rudely informed in a legal decision. In the case of Federal Whistleblowers, this decision tends to be painful, as it often coincides with the dismissal of our appeal. That is, when we spoke up about a problem and thus threatened our employing agency, they retaliated, and now our efforts at justice are blocked.
When legal disputes develop, they proceed toward a court where (hopefully) a full and fair judgment will be made. That judgment will happen after both sides of the dispute are presented. Most people retain the services of an attorney to present their side, though some people proceed ‘pro se’, representing the case on their own.
We all have a basic right to not self-incriminate. When we retain an attorney, that attorney becomes an extension of our basic right; i.e., anything and everything we share with our counsel is to be protected from disclosure. The theory is not just about protecting the client’s basic rights, but also about encouraging the client to be fully open with his/her attorney. Nobody disputes that maximizing candor and transparency will provide the highest probability for an optimally fair decision by a court.
There are a few images burned into your mind from this whole difficult experience. One is the sweaty, shaking discomfort on the face of the Agency-X manager when he/she issued you the disciplinary letter, and directed you to sign it. It was quite evident that the letter was ordered from above, maybe much higher, by an unidentified bureaucrat. You engage in Discovery to reveal the real decision-maker, to establish what ‘facts’ they were operating from. And, you run into a problem. The Agency-X attorney is claiming ‘Attorney-Client Privilege’, and MSPB is accepting that stance, thus blocking your Discovery request.
It turns out, some of the critical emails that led to your discipline were eventually shared with the legal office at Agency-X. This was not done in a conventional way, to protect a client in a legal matter; no, this was done as a form of evidence ‘laundering’. MSPB is good with accepting this as establishing an attorney-client relationship; therefore, that evidence is now ‘privileged’ and will not be provided to Discovery. You are screwed, because you cannot provide the smoking-gun evidence MSPB needs to see to tell Agency-X to undo your discipline and clean up their act.
It gets worse: there are other ‘Privileges’
The ‘privilege’ to conceal information applies not just to discussions between an attorney and a client; it also applies to the work done by the attorney, and the deliberation between officials that leads to a decision, such as your firing.
The ‘Attorney Work-Product Privilege’ seems reasonable; it ensures an attorney will not be forced to divulge his/her strategies and other works created while serving a client.
The ‘Deliberative Process Privilege’, on the other hand, is commonly abused by agencies to deny FOIA (Freedom of Information Act) requests. It is little more than a tool to dodge accountability. The rationale used by an agency such as FAA, when they deny records citing deliberative process privilege, is that they do not want to “…discourage candid discussions within the agency and thereby undermine the agency’s ability to perform its functions….”
What this translates to is this: the public is not allowed to see what happened within a meeting, if the agency simply declares it was ‘pre-decisional’. And, naturally, EVERYTHING becomes labeled ‘pre-decisional’.
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The full consequence of these ‘privileges’ is this: Federal agencies are allowed to hide key records, virtually guaranteeing that the damaged Federal Whistleblower will be unable to prove the retaliation. MSPB and OSC have been remarkably non-aggressive in pressing agencies to produce these records, and agency managers have long known they will not be held accountable.
Is it any wonder, than, that Whistleblower cases continue to happen, and that so many people are afraid to speak up?
The time for reform is long past due.
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An Example of Attorney-Client Privilege abuse in a recent MSPB decision
An MSPB AJ in Denver heard a case about a U.S. Department of Agriculture manager, who had filed an MSPB Appeal charging he was retaliated against after blowing the whistle. The AJ essentially sided with the Appellant (Shibuya). USDA wanted a different outcome, so they filed a PFR (Petition for Review) at MSPB. The PFR was accepted by MSPB (many are rejected) and then reviewed by the three current Board members: Susan Tsui Grundmann, Anne Wagner, and Mark Robbins. Upon review, the full MSPB found the AJ had erred. Their 6/14/13 decision, Shibuya v. USDA, vacated the AJ’s decision, and the case was remanded to the Denver Field Office for further adjudication.
Here is an excerpt from the 6/14/13 decision, where MSPB offers their assessment of how attorney-client privilege was abused. [Appellant is the USDA Manager; Mr. Wiley is his private attorney]:
“…Regarding purpose of the arrangement, the record contains an email dated September 6, 2008, in which Mr. Wiley stated that “[s]ince we have this standing contract, you might as well take advantage of my lawyer-ness.” He informed the appellant that he would only make comments that were “absolutely necessary,” that his review “shouldn’t cost more than a couple of tenths of an hour,” and that charging the agency for his review would “remove any doubt that this is an official lawyer-client relationship . . . . That’s a cheap easy procedure to keep a critical document away from the dark side.” IAF-0390, Tab 5, Subtab 4h at 1. Mr. Wiley further advised the appellant that case analyses should be emailed to him so that the documents could be issued with an attorney-client privilege statement. Id. We find that the weight of the record evidence supports the agency’s position that the purpose of Mr. Wiley’s review was to prevent the disclosure of case analyses drafted by agency employees in future third-party proceedings by creating the appearance that the case analyses were privileged documents.
The MSPB then weighed in on whether this arrangement was appropriate:
…we find that it contravenes the agency’s obligation during litigation to disclose non-privileged, discoverable information when requested by the other party, and not to fabricate a privilege in order to prevent the discovery of information. See generally Fed. R. Civ. P. 26(b)(1) and (b)(5)(B). FRCP, Rule #26
Attorney-client privilege exists for the sake of the attorney-client relationship—not the other way around. See Fisher v. United States, 425 U.S. 391 (1976) (the purpose of attorney-client privilege is to encourage clients to make full disclosure to their attorneys, and it only applies where necessary to achieve that purpose).
We find that this scheme was an abuse of the privilege and that the agency was right to be concerned by it. The Board takes the integrity of its discovery process seriously. We do not condone the specious “attorney-client relationship” that the appellant and Mr. Wiley cooked up in order to play some procedural game with our administrative judges….
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