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    The U.S. Office of Special Counsel (OSC), the agency responsible for investigating and prosecuting complaints by federal employees alleging the commission of prohibited personnel practices, today praised the May 4th decision of the Merit Systems Protection Board (MSPB) confirming that employees who disclose violations of merit promotion rules are protected against reprisal by the Whistleblower Protection Act (WPA). Ganksi v. Department of the Interior, MSPB No. PH-1221-98-0111-M-1 (May 4, 2000). The Board’s May 4th decision represented a reversal of the Board’s previous ruling in the same case, which had held that such disclosures are not protected by the WPA. The May 4th decision endorses OSC’s position that the WPA must be broadly construed and that it provides protection against retaliation for those who disclose the violations of any law, rule or regulation, including those that govern the hiring and selection of federal employees. 

    At issue in Ganski was the allegation of an employee of the Department of the Interior that she had suffered retaliation for disclosing to upper level management that another employee had been selected for a position in violation of the agency’s merit promotion rules. Ms. Ganski had disclosed to upper level management her belief that the job was not advertised and posted, as required by agency regulation. She also alleged that the hiring process had been manipulated; specifically, she claimed that agency officials had created a bogus temporary position for the individual it ultimately selected and then non-competitively converted that position to a permanent one, based upon the selectee’s newly-acquired experience.

    When the matter first came before the Board, in 1999, the Board (with then Vice Chair Slavet dissenting) held that—although Ms. Ganski’s disclosures concerned the violations of laws, rules or regulations—her disclosures were not protected by the WPA because they did not involve “the type of fraud, waste, or abuse that the WPA was intended to reach.” Ganski v. Department of the Interior, 83 M.S.P.R. 301 (1999). Ms. Ganski appealed this decision to the United States Court of Appeals for the Federal Circuit.

    While the matter was pending before the Federal Circuit, at the urging of OSC, the United States Department of Justice (representing the Department of the Interior) was preparing to take the highly unusual step of siding with Ms. Ganski in favor of reversal of the MSPB’s decision. In the meantime, the Court granted a motion filed by the MSPB to remand the matter back to allow it to reconsider its earlier ruling.

    On remand, the Board held that its prior decision, which found that disclosures of violations of hiring rules were not protected by the WPA, was incorrect. It held that a disclosure is protected if it involves the violation of any law, rule or regulation. The Board concluded that its earlier narrowing of the scope of protection was contrary to Congressional intent. 

    Special Counsel Elaine Kaplan stated that she was “pleased and gratified by the Board’s willingness to reconsider its earlier decision and by its ruling on remand.” She observed that, “the Board’s decision properly rejected any narrowing of the Whistleblower Protection Act’s scope.” “In fact,” Special Counsel Kaplan said, “Ms. Ganski’s disclosures involve precisely the sorts of public interests which the WPA was designed to serve. It is crucial to the enforcement of the rules governing the merit hiring that employees who disclose violations of those rules have confidence that they will have recourse if they suffer reprisal as a result. The Board’s May 4th decision,” she said, “provides that confidence.”

    Special Counsel Kaplan observed that she believed that “OSC’s involvement in this case played an extremely significant role in obtaining a correction of the Board’s initial legal error. Had OSC not become actively involved” she said, “it is unlikely, at best, that the Justice Department would have supported reversal of the Board, and equally unlikely that the MSPB would have decided to re-examine its initial decision.”

    The Board’s ruling does not address the merits of Ms. Ganski’s complaint of reprisal. While OSC has supported Ms. Ganski on the issue of whether her disclosure was protected, it has taken no position in the litigation on whether, in fact, Ms. Ganski suffered retaliation as a result of her disclosures. Under the Board’s ruling, Ms. Ganski will now be entitled to a hearing on that question.