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The views expressed are those of the author and do not necessarily reflect the views of ASPA as an organization.
By A. Hannibal Leach
June 21, 2016
Figuring out the best decision to make in the workplace just became much more difficult for federal employees. In the recently decided case, Rainey v. State, the U.S. Court of Appeals upheld administrative action taken by the State Department against an employee because he refused to follow an order which violated federal rules. This statutory interpretation case has far implications for federal employees and public agencies. I examine this case and some of its potential implications below.
Rainey v. State involved an employee at the United States Department of State and his refusal to follow an order which violated federal regulations. The employee, Timothy Rainey, was ordered by his supervisor to command a contractor to reinstate a fired subcontractor. Mr. Rainey refused this order because it violated the Federal Acquisition Regulation. Following this refusal, Rainey was relieved of his duties as a contracting officer and given a negative performance review by his supervisor. Mr. Rainey subsequently appealed these actions taken against him to the Merit Systems Protection Board (MSPB), citing the State Department acted in violation of the Whistleblower Protection Act (WPA). The MSPB declared the supervisor’s reprisals were lawful and the U.S. Court of Appeals affirmed.
This case is unique because it is one of the first challenges to the recently enacted enhancements of the WPA of 1989. In 2012, President Obama issued Presidential Policy Directive 19 (PPD-19), entitled “Protecting Whistleblowers with Access to Classified Information.” It was signed in order to give government employees more protections to report fraud, waste and abuse, as well as to provide federal managers and employees more direction regarding how to interpret and apply the WPA. The relevant portion of the Whistleblower Protection Acts shields employees from retaliation “for refusing to obey an order that would require the individual to violate a law.” The U.S. Court of Appeals reasoned the Act protects employees from laws or statutes, not rules or regulations. Federal employees are bound to uphold the Constitution and the laws of the land (statutes).
This ruling by the U.S. Court of Appeals raises many concerns regarding compliance in public agencies. It also leaves citizens and stakeholders in want of more assurance that federal agencies will abide by their own rules and regulations. A ruling such as this could potentially take away some of the veracity out of the WPA because it communicates to people in the federal workforce that rules and regulations are not important. Employees seeking to end waste, fraud, and abuse will be at risk if agencies work in contravention of established regulations because of the potential reprisals that may follow if they choose to expose such activities.
For a federal workforce seeking to become more cost efficient and effective, this ruling illustrates just how far it is from these goals. The Government Accountability Office (GAO) reports the federal government lost over $124 billion in fraud, waste and abuse in 2014 alone. Staggering as this may sound, punishing employees for refusing to violate well-established rules and regulations places these figures at great risk of being eclipsed in 2016.
This case is also significant because it sets a very bad precedent and portends of similar acts to follow. To punish an employee for NOT violating a regulation is far from the message our court system would like to send. It is now more important than ever for federal employees to become increasingly knowledgeable and vigilant concerning their roles and expectations in the workplace. The onus is on the employee to follow all applicable laws, rules, and regulations governing the course of their assignments.
Public managers also have a role to play in bringing about better workplace compliance. They too should ensure their directives are not in contravention of federal rules, guidelines or regulations. To encourage employees to strive for safe and healthy work spaces, public managers will do well to keep their activities and orders given to others within requisite bounds.
Public agencies meet their goals and objectives when their organizational culture fosters trust and communication among its members. It is sometimes difficult to apply a one size fits all stamp to different organizations of varying character and mission types. In many cases, rules and regulations may be outdated and inapplicable to current realities. Following such rules could be more dangerous than simply ignoring them. In such instances, the situation must be duly communicated to the relevant personnel, and official procedures to have the regulation in question changed should be commenced.
To help alleviate much of the consternation stemming from this ruling, the U.S. Supreme Court could accept an appeal from this case on a writ of certiari. Unfortunately, because the Court only has eight members, this decision may deadlock with the justices hopelessly voting along ideological lines. Let us hope that this legal gap doesn’t ruin the progress in federal workplace comity this nation has witnessed within the last few years.
Author: A. Hannibal Leach, MA, MPA, was previously employed as a congressional aide in the office of former Congressman Bart Gordon. He is the current president of the Center for Strategic Affairs and Public Diplomacy, a think tank that provides management consulting services. His scholarly research focuses on American Politics, political institutions, as well as Congress and its relationship to the conduct and formation of U.S. foreign policy. You can reach Mr. Leach at [email protected]