Hearing Ordered in Whistleblowing Case

In Swanson v. General Services Administration, 2008 MSPB 246 (Dec. 4, 2008), the Board overturned an administrative judge's decision which had held that Mr. Swanson was not a protected whistleblower. This issue turned on whether Mr. Swanson has presented evidence of a reasonable belief that the agency official on whom he "blew the whistle" engaged in gross mismanagement. The Board held that he did.

Mr. Swanson worked for GSA's Office of Enterprise Development (OED), Small Business Office (SBO), in Ft. Worth Texas. In his complaint to the Office of Special Counsel (OSC), Mr. Swanson alleged that he suffered reprisal in being assigned menial tasks after reporting that the acting regional administrator had "undermined both the integrity and ability of the SBO to perform its mission effectively by eliminating all but two positions for the entire region." Mr. Swanson also alleged that his supervisor employed "bullying tactics" to get him to take certain actions further reducing the SBO's effectiveness. The administrative judge originally scheduled a hearing, but then reversed her decision on the grounds that Mr. Swanson's statements to the OSC were insufficient to satisfy his exhaustion requirement. The Board disagreed with the administrative judge. The Board found that Mr. Swanson had specified to the OSC, with reasonable clarity and precision, the content of his disclosure, the individual to whom it was made, the nature of the retaliatory personnel actions, and the individuals responsible for those actions. Thus, the Board found that the exhaustion requirement to the OSC had been met.

The Board then went on to consider whether Mr. Swanson made a nonfrivolous allegation that his disclosures were protected. In so doing, the Board held that, accepting his allegations as true, Mr. Swanson had a reasonable belief that the information he disclosed evidenced gross mismanagement. Gross mismanagement means management action or inaction that "creates a substantial risk of significant adverse impact on the agency's ability to accomplish its mission." Gross mismanagement, the Board reminded, does not require an element of blatancy. Rather, the Board held that, if the agency official Mr. Swanson complained about undermined the ability of the agency to perform its mission by drastically cutting the number of employees, a reasonable person could conclude that the official committed an act of gross mismanagement. Lastly, in a footnote, the Board also noted that while Mr. Swanson did not describe the "bullying tactics," intimidation of employees may constitute an "abuse of authority." Reporting an abuse of authority is another protected whistleblowing activity.

This case represents a good reminder to employees of what minimal information must be provided to the OSC in order to exhaust the OSC process to provide the MSPB with jurisdiction in a whistleblower appeal. Further, this case shows the Board's willingness to consider complaints of reprisal for disclosing gross mismanagement or abuse of authority. There are not many Board cases that have found reprisal for disclosing such wrongdoing.

* 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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