U.S. OFFICE OF SPECIAL COUNSEL APPLAUDS DECISION CONFIRMING THAT EMPLOYEES WHO
DISCLOSE VIOLATIONS OF HIRING RULES ARE PROTECTED AGAINST RETALIATION
FOR IMMEDIATE RELEASE - 5/8/00
CONTACT: JANE MCFARLAND
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
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
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
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.