WhistleblowerSupporter

Advice for Would Be Whistleblowers

This was sent to me by someone.  I post it here for all to view.  It was apparently a recent blog post by Darcy O'Neil that the sender felt was of interest to others. Advice For Would Be Whistleblowers Posted (admin) in ethics on February-18-2008 They say no good deed goes unpunished and sadly that is the truth in the world of the whistleblower. The theory on ‘whistle blowing’ is that the individual is helping the community, and following their ethics, by reporting the offending person or company. The risk of recrimination is very high and usually results in a long and difficult fight for the whistleblower. This battle will likely including legal threats and character assassination. So what can you do to protect yourself when you do blow the whistle? Having been through this process I have gain some insight on how best to handle the situation. 1. Documentation: Once you suspect that something is wrong you should begin documenting. Start by taking notes in a log book or note pad. This information will be helpful when you need to tell your story and will provide the detail needed to track down further evidence of wrong-doing. Next, start collecting pertinent documents. The best way is to copy documents (photocopy, computers docs, etc.). When you think you have enough, double it. Pictures, phone recordings, documents, conversations, e-mails are all important and should be noted when possible. There can never be enough documentation. Once the authorities begin investigation documents had a tendency to disappear. Many people who don’t know the laws will try to tell you that these methods are illegal. The fact is they are not. In Canada it is legal to record a conversation or phone call as long as one of the parties is participating in the conversation. The removal of documents from the workplace is a gray area. Under normal circumstances removing company information is illegal, however when it is evidence it can be collected. In a Canadian court all evidence will be considered. Check with your government’s laws or speak with a lawyer before taking any risks. 2. Minimize Your Exposure: When you draw up the courage, and support, to finally report the issues there are a few things you need to do. First, it is best if you stay at your job while you report the issues. Sometimes the authorities will ask you questions, that will help them with their investigation, and being at the location is beneficial. Ask to be kept anonymous, if possible, but sometimes this can’t be done. Next, get your resume polished up and start sending it out. Then prepare financially by locating your employment insurance office. Tell them that you are blowing the whistle on your employer and you may be fired for it. Provide the person with the contact names of whichever authority you contacted. The idea is to build a rapport, so if bad things happen, people will know the facts. Don’t loose that all important safety net. 3. Go with your Instincts: Most people will tell you not to blow the whistle because there are no winners. They are partially right, but without your courage people will get hurt, the rich will get richer and abuse their powers. You can change that by doing what you feel it right. We often cloud our thinking with other people’s perceptions, but only you can determine what to do. Most of the time your instinct are right and you should trust them. If you listen to others and they convince not to go with your instincts, and then something bad happens, you have to live with the consequences, not them. 4. Be Patient: Nothing happens quickly no matter how fast you want to be done with it. The reality is that things will go much slower than you ever expected them too. The best way to make sure things are moving is to do some research. For example, if you file a complaint against a medical professional, the regulatory College that receives the complaint will have a complaints process. However, this is usually regulated by a government agency that has legislation regarding complaints. In Ontario all complaints must be handled in 120 days. If not, you can contact the Health Professions Appeal & Review Board and they will contact the College and accelerate the process. Some other tips to accelerate the process include contacting your local politician, begin a letter writing campaign to media outlets and compiling your story onto an internet site. Be persistent when dealing with each agency, don’t accept their statements at face value and always follow up. 5. The Media is Not a Solution: They can help but you have to convince them to write the story. Many times it may take months for them to move. Remember they don’t want any liability, they are a profit-motivated company and will only publish story’s that make them a dollar. If your former employer is litigious, they will probably be too scared to publish. The media has no problem reporting history, so once a final verdict is reached, by the authorities, they will write a story. Unfortunately it will be to late to help you. Some of the smaller media outlets may be more willing to help you. Take a look at freelance writers, who may spend more time working on your story and getting the facts. They also have the contacts you need to get it published. 6. Prepare for an Attack on your Character and Legal Threats :: The person or company you are dealing with will not let things go easily. The first response will be to discredit you. If you look like an disgruntled employee or someone with a vendetta then your story will be less believable. It’s easy for the person or company to do this. If they were unethical to start with, it’s not a huge leap for them start lying about you after you report them. There isn’t much you can do except try to disprove they’re statements. Use the document you gathered to clearly show that they are the guilty party and you were just being ethical. In the end your efforts will be recognized. You will probably receive a cease and desist letter, don’t be overly concerned as this is most likely posturing. If you are worried, speak with a lawyer. 7. Use Lawyers Sparingly: Nobody can fight with the passion you have and no lawyer will ever put the amount of effort you already have into your fight. Replying to a cease and desist letter is easy, just stick with the facts, provide the evidence and take the high road. Most lawyers will act like an 600 lb gorilla, your job is to be bigger. In all likelihood they won’t want to take this issue to a public forum, like a court room, especially if you have documented the case very well. That would give you a perfect opportunity to invite the media and lay your case out. Examples of cease and desist responses can be found at http://www.snakeoil.ca. If you need legal advice, get it, but don’t let the lawyer bleed you dry. Have your questions prepared on paper and sit down with the lawyer and discuss the issue. If they charge a minimum of one hour time, use it all. One good thing to do is prepare a short summary of the facts in your case, and fax it in to the law office. Don’t ask question in the letter. Blowing the whistle is stressful enough without having thousands of dollars in legal fees. Some people will tell you not to let the event consume you. If it does consume you, it will affect other parts of your life. But sometimes focussing your energy can be better if it will resolve the issue quicker. It’s better to throw your whole heart into the matter, rather than fight with yourself. It is difficult to not be consumed. My advice is to simply go with it. The harder you work the quicker the issue will be resolved and the sooner you can get on with your life. The is no reward for doing a good deed, that’s only in movies. In the end however you should have the satisfaction that you made your community or country a better place. People will respect you for your efforts and hopefully inspire then to do something good and that is a reward in itself. Darcy O’Neil is a chemical technologist who became a pharmaceutical whistleblower. His experiences, including the evidence, legal threats and decisions can be found at http://www.snakeoil.ca. Darcy is currently working as a bartender and a freelance writer. Article Source: http://EzineArticles.com/?expert=Darcy_O’Neil

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Fed. Legal - Eligibility for Whistleblower Protection

13. Federal Legal Corner: Eligibility for Whistleblower
Protection
The U.S. Court of Appeals for the Federal Circuit recently issued a
decision that recognizes appeal rights under section 2302(a)(2)(c)
(ii) of the Whistleblower Protection Act (WPA) for employees
working in agencies that have not been expressly determined by
the President to be an executive agency or unit whose principal
function is the conduct of foreign intelligence or
counterintelligence activities. In Czarkowski v. Merit Systems
Protection Board, No. 03-3300 (Fed. Cir. Nov. 8, 2004), the
court found that President, or his lawful designee, had not
made an actual determination expressly naming the Navy's Office
of Special Projects (OSP) as an exempt agency under  2302(a)(2)
(C)(ii).

The employee, Carol Czarkowski, was employed under a Schedule A
appointment in the excepted service. Her position included dealing
with classified contracts for large dollar amounts and was
subject to a periodic security background investigation. After
Ms. Czarkowski made disclosures protected by the WPA, the agency
removed her supervisory responsibilities and placed her on a
performance improvement plan. After filing an initial complaint
with the Office of Special Counsel, Ms. Czarkowski filed an
individual right of action (IRA) against the agency with the
MSPB, alleging retaliation.

The agency moved to dismiss this case, arguing that the Board
did not have jurisdiction over the complaint because OSP was
exempt from Board jurisdiction under 5 U.S.C.  2302(a)(2)(C)(ii).
This statute denies the Board jurisdiction over IRA appeals
involving certain agencies, such as the Federal Bureau of
Investigation, the National Imagery and Mapping Agency, and
the National Security Agency. The MSPB upheld the dismissal
of her case on jurisdictional grounds, noting that Ms.
Czarkowski had failed to present evidence contradicting the
OSP's intelligence function.

The court of appeals in reversing the Board explained that
although many agencies have the authority to, and do actively
conduct foreign intelligence activities, the statute
specifically assigned the President the task of identifying
which agencies meet the principal function test. Contrary
to the Board's position, the statute does not give the Board
the authority to determine which agencies meet this test.
Even in the presence of documents that suggest to the Board
that the President could have or should have made the
determination that an agency meets the principal function test,
the burden is on the agency to establish that the President,
or his delegate, has explicitly exempted an agency or a unit
thereof.

The court noted that by establishing the Intelligence Community
Whistleblower Protection Act (ICWPA) of 1998, Congress
expressly provided all intelligence employees an alternate
scheme for disclosing information without fear of reprisal. The
legislative history of the ICWPA also supported the clear inteny
of Congress to require an express Presidential determination.
Further, the court of appeals noted that for policy reasons it
is important that employees are able to determine whether they
are covered by the WPA or the ICWPA, in order to decide how to
disclose information without fear of retaliation.

For employees of those agencies, like the OSP, whose function
includes, or is authorized to include an element of intelligence
activity, this decision will be extremely helpful in obtaining
WPA protection and establishing the jurisdiction of the MSPB over
their whistleblowing complaints. As a result of this decision,
an agency seeking to dismiss a WPA case on this basis will be
required to prove that the President, or his delegate, expressly
and explicitly determined that the principal function of the
agency is foreign intelligence or counterintelligence activity.

This information is provided by the attorneys at Passman & Kaplan,
P.C., a law firm dedicated to the representation of
federal employees worldwide. For more information on Passman &
Kaplan, P.C., go to http://www.passmanandkaplan.com.
Publisher's Note: Passman & Kaplan have produced a brand new
guide, The Federal Employees Legal Survival Guide, a must have
for all federal personnel managers.
Go to http://www.fedweek.com/pub for more information and
how to order.

You can take part in a GAP Conference Call!

Please tell your friends about the Government Accountability Project conference call by forwarding this email. It is free to participate, open to non-members and will contain a lot of important information for anyone interested in a law that could

A)    Ban political appointees from interfering with the work of federal climate scientists,

B)    Extend whistleblower protections to FBI employees and government contractors, and

C)    Provide specific authority for whistleblowers to disclose classified information to members of Congress.

-----------------------------------------------

You Are Invited to Join

The Government Accountability Project

For

The Whistleblower Protection Enhancement Act:

News on the Milestone Whistleblower Legislation at a Critical Stage in Congress

And

What You Can Do to Help Us Win an Historic Victory for Whistleblowers

Telephone Conference Call

Wednesday, August 1^st

6:00pm (ET)

With

Tom Devine,

Legal Director, Government Accountability Project

&

Adam Miles,

Legislative Representative, Government Accountability Project

For Details of How to Call-In, Email richards@whistleblower.org

Featuring Presentation, Discussion and Questions from Callers On:

Current whistleblower protection

GAP's role in creating current protections

How and why the current protections are inadequate

What the proposed legislation would achieve

History of attempts to pass new whistleblower law

The current legislative progress and likely timeline

Champions, opposition and fence sitters in congress

Pitfalls: how the law could be derailed by process and amendments

To Listen to Recordings of our Previous Conference Calls, on the Paul Wolfowitz Scandal at the World Bank and our work with drug safety whistleblowers at the FDA, visit our conference call web page.

Whistleblowers Dirty Dozen: Betrayal by Congresspersons

National Security Whistleblowers Coalition  www.NSWBC.org

Campaign for whistleblower rights and protections for National Security employees

http://nswbc.org/Reports%20-%20Documents/Whistleblowers'%20Dirty%20Dozen.pdf

List of politicians who have stood against Whistleblower protections and explanation/report.

Workplace Fairness: It's Everyone's Job

Corporate Whistleblowers/Sarbanes-Oxley...information and advice

http://www.workplacefairness.org/corpwhistleblowers

American Civil Liberties Union

ACLU statement that whistleblower protections are lacking and that there are critical shortcomings in current law. 

http://www.aclu.org/safefree/general/24151prs20060214.html

More on National Security Whistleblowers...5/14/07

http://www.aclu.org/safefree/general/29682res29970514.html

The Whistleblower Program- OSHA

U.S. Department of Labor, Occupational Safety and Health Administration

Office of Investigative Assistance:  The Whistleblower Program

http://www.osha.gov/dep/oia/whistleblower/index.html

A Report on Fed. Employees who disclose acts of...

CRS Report for Congress - 2005

A Report on Federal Employees who disclose acts of...

http://www.fas.org/sgp/crs/natsec/RL33215.pdf

Organizations Who Help Whistleblowers

This is a growing and changing list of Resources for Whistleblowers.  I will update it as I find more useful links to post.

Organizations Who Provide Help and Information for Whistleblowers

1.  http://parentadvocates.org    Parent Advocates, main site

2.  http://pogoblog.typepad.com    Project On Government Oversight (POGO) blog site

3.  http://www.pogo.org    Project On Government Oversight  (POGO), main site

4.  http://www.whistleblower.org  Government Accountability Project (GAP), main site

5.  http://www.taf.org   Taxpayers Against Fraud main site; http://www.taf.org/contact.html (contact using this information page)

6.  http://www.whistleblowers.org/  National Whistleblower Center