< Carolyn Lerner and the Office of Special Counsel

Transcript

Friday, January 27, 2012

BROOKE GLADSTONE:

More than a year ago, we started to track the progress of the Whistleblower Protection Enhancement Act, legislation designed to strengthen protections for federal employees who expose waste, fraud or abuse and who are frequently punished or fired because they do. The Act was killed by an eleventh hour secret hold placed, we later learned, by Senate Republicans at the behest of the House leadership.

Well, that was then. Now, another version of the bill has emerged yet again in Congress. And in June, Carolyn Lerner was appointed the new head of the United States Office of Special Counsel, an independent office tasked with protecting federal whistleblowers. It's a task the Office has been pretty ineffective at in the past.

But Lerner is getting high marks from whistleblower advocates. She says that part of her job is fighting the negative image of whistleblowers.

CAROLYN LERNER:

Senator Grassley is fond of saying that whistleblowers are often treated like a skunk at a picnic. There's a feeling that people who come forward are often just kind of complainers.

Whistleblowers save the government money. They make our airplanes fly more safely. They keep our food safe. They protect our workforce and our country. We need whistleblowers, and it's important that people know about our agency.

BROOKE GLADSTONE:

Could you describe what the office is able to do on behalf of whistleblowers?

CAROLYN LERNER:

Well, we wear different hats. The first one is our Disclosure Unit. Any federal employee who wants to report waste, fraud or abuse or a health or safety issue, we then do a review and determine if there's enough evidence to warrant the Agency doing an investigation. A little less than 10 percent of the cases we then refer the case back to the Agency for a full investigation.

The second hat that we wear is the Investigation and Prosecution Division. When whistleblowers feel that they have been retaliated against, we have independent investigative authority to look at their claims and then, if necessary, prosecute them to the Merit Systems Protection Board.

BROOKE GLADSTONE:

What's the state of that board? They almost always find in favor of the agency. At least that's in the case for the last decade and a half. And, as a result, whistleblowers don't feel they can get a fair shake.

CAROLYN LERNER:

There are three members of that board. And you're right, that for many, many years it was very difficult for an employee to prevail there. The board is now a little bit more open to employees, and that's made it a little bit easier for us to bring cases there.

BROOKE GLADSTONE:

It's possible that the new attitude of that once-resolutely anti-whistleblower [LAUGHS] court could affect the future of a whistleblower we've had on the show, Franz Gayl, who was a civilian advisor to the US military who first quietly and then increasingly noisily exposed the lack of mine-resistant vehicles in Iraq in 2006. Delays in ordering those vehicles were costing a lot of lives.

When we spoke to him last, he was on administrative leave that looked to be permanent.

CAROLYN LERNER:

We were able to go to the MSPB and get a stay to stop his termination. During the stay the Department of Defense reinstated his security clearance. So he was temporarily prevented from being terminated. And that's an example of how we're trying to be a little bit more proactive by taking cases like that to the MSPB.

BROOKE GLADSTONE:

A woman named Diem Thi Le seems to be the current poster child for whistleblowers. You've been addressing her case.

CAROLYN LERNER:

Yes. She was pressured by her supervisors at the Defense Contract Audit Agency to rush through audits, even when there was evidence of waste and other misconduct. Her disclosures led to congressional intervention and widespread reforms, which have the potential to save the government billions of dollars.

Unfortunately, rather than being rewarded for her courage in speaking out, she was harassed, subject to a hostile work environment, unfair performance evaluations and it looked like they were ready to terminate her.

This is a very common practice when someone comes forward. But we were able to protect her job and she's very happily employed now. And I don't think there's any question about the value that she provided to our government.

BROOKE GLADSTONE:

What would the passage of decent whistleblower protection legislation mean for your office?    

CAROLYN LERNER:

There's a widespread belief that the current whistleblower protections are inadequate. We are really handcuffed. We can always weed out frivolous claims but, unfortunately, right now we're also required to close out a number of very good claims.

Under current law, employees are not protected for blowing the whistle in the course of their job duties. So that means employees can be fired for disclosing evidence of waste, fraud or abuse, if it was part of their job to do so.

BROOKE GLADSTONE:

Is what you're saying that if somebody finds waste, fraud or abuse in the course of doing their job and they exposed that they'll be in trouble, but if they pass somebody else's office and see waste, fraud and abuse and they report that but it's not part of their own job, then they're protected?

CAROLYN LERNER:

That's exactly right. It doesn't make much sense but that's where we are right now.

BROOKE GLADSTONE:

That's insane!

CAROLYN LERNER:

It happens with federal auditors, safety inspectors whose job it is to unearth problems; if they expose them and are retaliated against for having done so they are not protected.

BROOKE GLADSTONE:

Do you have any idea how we came to that path?

CAROLYN LERNER:

It's certainly not in the law, but it has been interpreted by courts that way.

BROOKE GLADSTONE:

What's their justification?

CAROLYN LERNER:

And this all goes back to how whistleblowers are perceived. I think that it is a very common perception that people who come forward and make complaints are troublemakers. Some of the time that may be the case. As I said, only less than 10 percent of the cases actually get referred for investigation.

So I don't think there's a problem with our being able to screen out the false claims or the claims that don't have merit. But we do have a problem with how people are perceived who do come forward. And that has to change.

BROOKE GLADSTONE:

Carolyn, thank you very much.

CAROLYN LERNER:

Thank you. It's been a pleasure to talk with you.

BROOKE GLADSTONE:

Carolyn Lerner is head of the U.S. Office of Special Counsel.