Disclosing Danger to Public Safety

The U.S. Court of Appeals for the Federal Circuit in a split decision ruled in favor of Teresa Chambers' challenge to her removal as Chief of the U.S. Park Police. The appeals court ruling found that public employees are protected when raising warnings about "a risk to public safety." Chambers v. Dept. of the Interior, No. 2007-3050 (Fed. Cir. Feb. 14, 2008). It was an incomplete victory for Ms. Chambers, however, as the court remanded the case back to the Merit Systems Protection Board (MSPB or Board) for a decision.

Ms. Chambers served as Chief of the Park Police, a component of the National Park Service, Department of Interior, from February 10, 2002, until she was removed on July 9, 2004. In 2003, the Office of Management and Budget decided not to seek increases in the Park Police budget. Dissatisfied with that decision, Ms. Chambers spoke with a reporter from The Washington Post and also with a U. S. House of Representatives Interior Appropriations Subcommittee staffer about the budget and its implications for the Park Police. The newspaper then published an article attributing several statements regarding the budget to Ms. Chambers, prompting her supervisor to first restrict Ms. Chambers from further communication with the press and then to place her on administrative leave pending review.

On December 17, 2003, the agency proposed to remove Ms. Chambers from federal service based on six charges of misconduct. In response, Ms. Chambers filed a complaint with the Office of Special Counsel (OSC), claiming reprisal for protected disclosures, and also appealed the merits of the removal. The Board ruled against her, and Ms. Chambers appealed her case to the court. On appeal, Ms. Chambers argued that the Board erred by denying her claim that, by removing her from service, the agency acted in retaliation for her protected disclosures. Specifically, she alleged that a number of her actions constituted disclosures of substantial and specific dangers to public safety under the Whistleblower Protection Act (WPA).

To prevail on a claim under the WPA, an employee must show that she disclosed information she reasonably believed evidences (i) a violation of law, rule, or regulation, or (ii) gross mismanagement, a gross waste of funds, an abuse of authority, or a substantial and specific danger to public health or safety. According to Ms. Chambers, she disclosed information she reasonably believed identified substantial and specific dangers to public safety, and the agency removed her in response. She argued that the Board applied an erroneous standard when reviewing the administrative judge's initial decision, and therefore reached the wrong conclusion with respect to her disclosures.

The court agreed with Ms. Chambers that the Board applied an incorrect standard when evaluating her WPA claim relating to disclosure of a risk to public safety. The court noted that the Board improperly blended the concepts of gross mismanagement and risk to public safety. The court noted that while Ms. Chambers certainly expressed a disagreement with a policy decision, she also potentially disclosed a danger to public safety that may have resulted from that decision. The Board improperly classified the personal opinions that Ms. Chambers shared with the reporter and congressional staffer regarding the funding level and priorities consciously set by policymakers for her agency, as different from disclosures of a danger to public safety.

Therefore, the court found that Ms. Chambers' opinions about the consequences of the policy decisions could have disclosed a danger to public safety. The court concluded that the Board should have considered those aspects of Ms. Chambers' disclosures directed to public safety and determined if she disclosed information which she reasonably believed evidenced a substantial and specific danger to public safety. However, the court ruled against Ms. Chambers in regard to her challenges to the merits of the charges against her, her claims of a violation of procedural due process and harmful procedural error, and upheld the penalty of removal. While the court remanded the case to the MSPB for a decision using the correct standard, given the comments of the dissenting judge that the result would be the same, the MSPB may still rule against Ms. Chambers on the ultimate decision challenging her removal.

* This information is provided by the attorneys at Passman & Kaplan, P.C., a law firm dedicated to the representation of federal employees worldwide. For more information on Passman & Kaplan, P.C., go to https://www.passmanandkaplan.com/.

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