WASHINGTON – Truth tellers are especially important and potentially vulnerable in an administration afflicted with serial mendacity.
An important refuge from management retaliation for federal truth tellers – aka whistleblowers – is the Office of Special Counsel (OSC), a small, understaffed independent agency that regularly challenges the biggest dudes on the block.
But now, whistleblowers and their advocates are worried that the office’s vigilance under Carolyn Lerner could be endangered by President Donald Trump’s notice to the Senate “withdrawing from further Senate consideration” her reappointment nomination.
This worry is fueled by the Trump administration’s early agency gag orders, as well as the stern White House rebuke of State Department workers who complained – on an approved, internal dissent channel – about Trump’s first immigration executive order left a chill.
The “new administration hasn’t demonstrated any tolerance for those who dissent against its actions,” said Tom Devine, legal counsel of the Government Accountability Project, which represents whistleblowers.
Regardless of administration, federal agencies have too often punished, not praised, whistleblowers. Careers have been ruined, workers have been banished, performance ratings have been fixed by vengeful managers who did not like employees exposing mismanagement.
When Lerner became special counsel in 2011, the office was mired in the muck of controversy surrounding the previous special counsel. Just as employee advocates cheered her predecessor’s departure, they, and bipartisan members of Congress, are now hailing Lerner’s tenure and pushing for her retention.
Trump could still decide to nominate her, making her appointment his rather than an Obama administration’s holdover. The White House did not respond to questions about Lerner’s nomination.
Lerner is one of the few Obama administration appointees who gets as much praise from Republicans as she enjoys from Democrats. In fact, the member of Congress leading an effort to retain her is Republican Rep. Rod Blum of Iowa.
Along with three other House Whistleblower Protection Caucus co-chairs, Blum praised her in a letter to Senate leaders:
“Under Ms. Lerner’s leadership, OSC has increased both the number of claims it investigates and the number of cases resolved. OSC has won bipartisan praise for its work, including resolving multiple cases of retaliation against whistleblowers at the Veterans Administration, resulting in meaningful reforms meant to improve the care of our nation’s veterans. We believe Ms. Lerner has earned a second term.”
In addition to Blum, it was signed by Republican Rep. Mike Coffman of Colorado, and Democrat Reps. Kathleen Rice of New York and Jackie Speier of California. Rep. Elijah E. Cummings of Maryland, the top Democrat on the House Oversight and Government Reform Committee that deals with federal workforce issues, called Lerner “a model of effectiveness and independence.”
Sen. Charles E. Grassley, R-Iowa, chairman of the Senate Judiciary Committee, supports Lerner’s renomination, saying: “Whistleblowers often face retribution for trying to tell the truth and make government better. Protecting them is an important, non-partisan job that the Office of Special Counsel has done well under Carolyn Lerner’s leadership.”
As kind as the Capitol Hill praise is, it pales compared with passionate testimonials from whistleblowers Lerner assisted.
“She’s fearless,” said Robert MacLean, a Transportation Security Administration air marshal who took the first federal whistleblower case to the Supreme Court. He won and said the court’s decision was based largely on OSC’s findings that opposed the Obama administration’s defense of the agency.
“Her investigations are exhausting,” he added. “She doesn’t leave a rock unturned. Her investigations are very meticulous.”
Brandon Coleman, a Trump supporter, said withdrawing Lerner’s nomination “is a horrible move for someone who truly wants to ‘drain the swamp.’ The VA (Department of Veterans Affairs) tried to destroy my career and sent me home for 460 days for doing nothing wrong other than telling the truth that suicidal vets were escaping from the Phoenix VA hospital. If not for Ms. Lerner and the OSC, I would not have won my case, nor would I be a VA employee today.”
Franz Gayl, a Marine Corps civilian who blew the whistle on the lack of protective equipment for combat vehicles, was succinct: “Carolyn Lerner is awesome.”
Added Devine: “She’ll be a tough act to follow. When she arrived, the office was a national disgrace. Now it has the most impressive track record in history.”
Yet, he also complained about an OSC approach that is sometimes “too cautious.” OSC, he said, should take a more aggressive approach to suing agencies on behalf of whistleblowers. Lawsuits, Devine argued, would encourage agencies to treat whistleblowers fairly and could set precedents strengthening whistleblower protection laws.
An OSC spokesman said Lerner was not available for an interview. During Senate testimony last year, she outlined OSC progress under her leadership, including a 38 percent increase, from 2014 to 2015, in favorable actions for employees and a 50 percent increase, from 2011 to 2015, in the number of cases received and resolved. Meanwhile, OSC’s cost to resolve cases is down 45 percent, leading to record productivity.
“This dramatic increase in filings indicates that whistleblowers believe they can make a difference by bringing a claim to OSC,” Lerner said.
Lerner’s statistics are impressive, but for MacLean, her work is personal.
“I’m kind of biased,” he said, “because she pretty much saved my life.”