Merit Systems Protection Board Guts National Security Whistleblower Protection

WEBWIRE – Wednesday, June 24, 2009

National Whistleblowers Center Calls for Immediate Review of Lame Duck MSPB Appointees

Washington, D.C. June 24, 2009. On June 22, 2009, the Merit Systems Protection Board (MSPB) issued a long awaited ruling in Robert J. MacLean v. Department of Homeland Security Agency. Mr. MacLean blew the whistle on the Department of Homeland Security’s Transportation Security Agency (TSA) plan to improperly remove U.S. Air Marshals from long distance flights during a heightened terrorist alert. Mr. MacLean was concerned that the TSA’s plan posed a serious threat to public health and safety. After Mr. MacLean’s internal warnings were ignored, he made a public disclosure that was protected under the Whistleblower Protection Act. The Department of Homeland Security (DHS) subsequently fired Mr. MacLean in flagrant violation of the law. However, in order to win their case, DHS retroactively classified his disclosure as Sensitive Security Information. The MSPB declined to review this retroactive classification and upheld Mr. MacLean’s termination. A copy of the decision can be found by clicking here.

Stephen M. Kohn, Executive Director of the National Whistleblowers Center issued the following statement:

“The MSPB’s decision has placed the public health and safety of every American at risk. Mr. MacLean had a right and a duty to disclose the improper plans of the TSA to remove air marshals from long distance flights during a heightened terrorist alert simply to save money. Mr. McLean did his job and the responsible officials who removed him should have been disciplined. Instead, DHS chose to retaliate against the messenger and fired Mr. MacLean. His termination blatantly violated the law and he should have been reinstated with full back pay. However, after illegally terminating Mr. MacLean DHS decided to re-categorize evidence of its own misconduct as Sensitive Security Information. The MSPB whose mission is to protect federal employee whistleblowers has now upheld Mr. MacLean’s termination.”

“Every federal employee who exposes a threat to public health and safety caused by security related abuses risks being fired. With this decision, the employees also risk having their agency retroactively classify their disclosure and strip them of their whistleblower rights. The MSPB decision demonstrates a troubling insensitivity to the real life dilemmas faced by federal employee who must balance their need for a paycheck with their need to serve the public interest. This decision will have a chilling effect on all federal employees.”

“Mr. MacLean has not only lost his job, he must now state on any employment application that he was fired for releasing Sensitive Security Information. His actions to protect the public have not only destroyed his life, but have also jeopardized the financial and emotional security of his wife and two daughters, ages 5 and 7.”

“It is a tragic day in this country when a civil servant who simply wanted to prevent the improper removal of federal air marshals from long distance flights has lost his career and now faces additional hardships in trying to support his family.”

“It is deplorable that the men and women on the front lines of the war against terrorism who are trying to prevent the next 9/11 get such shabby treatment under the law.”

“The National Whistleblowers Center calls on President Obama to order the immediate reinstatement of Mr. MacLean with full back pay and promptly review the composition of the lame duck MSPB. Furthermore, the NWC calls upon President Obama to immediately and publicly request Congress to amend the Whistleblower Protection Act consistent with the his campaign promises of jury trials and coverage for national security employees. These amendments would have provided legal protection for Mr. MacLean and thousands of other federal employees who face similar choices.”