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U.S. Office of Special Counsel

1730 M Street, N.W., Suite 300

Washington, D.C. 20036-4505


(202) 653-7984      

    Today, the U.S. Office of Special Counsel (OSC) announced the issuance of a favorable decision by the Merit Systems Protection Board (MSPB) on January 28, 1999, affirming the 10-day suspension of a federal supervisor who reprimanded an employee for exercising his rights under the Whistleblower Protection Act (WPA).

At the time the reprimand was issued, the supervisor was the acting chief of the Materials and Waste Management Branch of a military installation in Oklahoma. This branch was responsible for the control and removal of hazardous waste and materials as well as other solid waste for several military installations located in both Oklahoma and Arkansas. The installation’s Environmental Health Technician served under the supervision of the acting chief.

    During a construction project at the installation, after the removal of underground storage tanks, heavy spring rains filled the empty pits with water. Upon examining the site and certain laboratory data, the Environmental Health Technician found what he believed was petroleum fuel contamination. 

    The next day, a work crew began pumping water from the pits into a ditch that drained into an adjacent creek. The Environmental Health Technician telephoned the Oklahoma Corporation Commission, which advised him that the pumping was inappropriate. Although he immediately reported the pumping of contaminated water to his second-line supervisor, the pumping continued the next day. The Environmental Health Technician then reported the contamination to the U.S. Coast Guard National Response Center and the Oklahoma Department of Pollution Control. 

    Upon learning that the Technician had gone to outside authorities, the supervisor reprimanded him in writing, warning that, “effective immediately,” he must “no longer give notice to any regulator whether state or federal unless explicitly authorized by myself” or certain others in the chain of command.

    The OSC filed a complaint with the MSPB, charging that the supervisor had violated the Whistleblower Protection Act by formally warning a subordinate not to exercise his statutory right to disclose information that he reasonably believed evidenced a violation of law, rule or regulation, or a substantial and specific danger to the public health. Last year, acting on OSC’s complaint the Chief Administrative Law Judge (CALJ) of the MSPB imposed the 10-day suspension, which the full Board has now affirmed. MSPB Docket Number CB-1215-94-0036-T-1

    Special Counsel Elaine Kaplan said that she was “pleased by the Board’s decision” which, she said, “should both encourage federal employees to exercise their rights under the Whistleblower Protection Act and discourage their supervisors from attempting to prevent them from doing so.” Kaplan added that the purpose of the supervisor’s reprimand was “to curtail appropriate and protected activity -- the disclosure of government wrongdoing.” “Placing restrictions on a whistleblower regarding the timing or means of making disclosures” Kaplan said, “is in direct conflict with the purpose of the whistleblower protection legislation, which is to protect disclosures made to any person.”