Whistleblower Protection: Additional Actions Would Improve Recording and Reporting of Appeals Data
Fast Facts
How can we better protect federal whistleblowers?
The Whistleblower Protection Enhancement Act of 2012 seeks to strengthen the rights of and protections for federal whistleblowers.
We found that the Merit Systems Protection Board—which rules on whistleblower appeals—received more of these appeals after the act was enacted. We also found weaknesses in their recording and reporting of these appeals.
We recommended that MSPB update its data entry user guides and add a quality check to ensure accurate reporting of whistleblower appeals.
Annual Numbers of Two Kinds of Whistleblower Appeals Before and After Enactment of Whistleblower Protection Enhancement Act of 2012
Bar chart showing increases in the number of individual right of action appeals in FYs 13, 14 & 15
Highlights
What GAO Found
Of the two types of whistleblower appeals—individual right of action (IRA) and otherwise appealable action (OAA)—Merit Systems Protection Board (MSPB) data show higher numbers of IRA appeals received by MSPB after enactment of the Whistleblower Protection Enhancement Act of 2012 (WPEA). In an IRA appeal, an individual has been subject to a personnel action, such as a reassignment, and claims the action was reprisal for whistleblowing. In contrast, the number of OAA appeals decreased after WPEA. In an OAA appeal, an individual has been subject to an action directly appealable to MSPB, such as a demotion, and claims that the action was taken because of whistleblowing. WPEA, among other things, clarified the scope of protected disclosures which may have contributed to a higher number of IRA appeals. WPEA did not alter MSPB's jurisdiction over OAAs.
Annual Numbers of Two Kinds of Whistleblower Appeals Before and After Whistleblower Protection Enhancement Act's Enactment in 2012
MSPB has taken steps to collect and report whistleblower appeals data. GAO identified a number of weaknesses in MSPB's data collection. Some were due to shortcomings in data coding that resulted in over reporting appeals closed. Further, MSPB has not updated its data entry user guides to reflect new reporting requirements nor has it instituted checks to ensure data accuracy, which are inconsistent with internal control standards.
Subject matter specialists varied in their opinions about the benefits of granting summary judgment authority—a procedural device used when there is no dispute as to the material facts of the case—to MSPB. Benefits cited included a more efficient process; but negatives included the loss of a whistleblower's right to a hearing. Similarly, the specialists provided a mix of opinions about granting jurisdiction for cases to U.S. District Courts. A benefit cited was access to a jury trial, while a negative cited was the increased workload of the courts.
Why GAO Did This Study
Federal employee whistleblowers—individuals who report violations of law or certain agency mismanagement— may risk reprisals from their agencies. WPEA seeks to strengthen the rights of and protections for federal whistleblowers.
WPEA includes a provision for GAO to report on the law's implementation. This report (1) describes changes in the number of whistleblower reprisal appeals filed with MSPB, as well as the outcome of appeals, since WPEA's effective date; (2) provides subject matter specialists' views about granting MSPB summary judgment authority for whistleblower cases; and (3) provides subject matter specialists' views about granting jurisdiction for a subset of whistleblower appeals to be decided by a district court of the United States.
GAO obtained data from MSPB on whistleblower appeals received and closed from fiscal years 2011 through 2015. This period begins approximately 2 years prior to WPEA's effective date of December 27, 2012, and continues through the end of fiscal year 2015. GAO also conducted six focus groups with subject matter specialists that include whistleblower advocates and agency labor relations officials.
Recommendations
GAO recommends that MSPB help ensure the accuracy of its reporting on whistleblower appeals received and closed by (1) updating its data entry user guide to include additional guidance and procedures, and (2) adding a quality check in its data analysis and reporting process to better identify discrepancies. MSPB agreed with these recommendations.
Recommendations for Executive Action
| Agency Affected | Recommendation | Status |
|---|---|---|
| Merit Systems Protection Board | To help ensure the accuracy of MSPB's reporting on whistleblower appeals received and closed, the Chairman of MSPB should update MSPB's data entry user guide to include additional guidance and procedures to help improve the identification of appropriate whistleblower appeal closing codes to use. |
MSPB provided GAO with the agency's recently issued internal guidance intended to help ensure the accuracy of MSPB's reporting on whistleblower appeals. On January 24, 2022, MSPB's offices of Regional Operations and Clerk of the Board released "Guidance for Coding Claims of Whistleblowing and Protected Activity Raised under 5 U.S.C. ? 2302(b)(8) and (b)(9)." The guidance builds upon MSPB's 2021 policy on "Data Quality and Appeals Under the WPEA" and associated training in the interim by increasing the consistency and accuracy with which whistleblower claims are coded agency-wide under the WPEA and subsequently reported. In its transmittal email from the Acting Director, Office of Regional Operations, to regional and field office staff, the Acting Director stated that the guidance is intended to increase the consistency and accuracy with which whistleblower claims are coded agency-wide under the WPEA and subsequently reported, and it should be followed by all MSPB adjudication staff members, in the regions and at headquarters, who have a role in capturing, adding, or reviewing whistleblowing data.
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| Merit Systems Protection Board | To help ensure the accuracy of MSPB's reporting on whistleblower appeals received and closed, the Chairman of MSPB should add a quality check in MSPB's data analysis and reporting process to better identify discrepancies or other anomalies in data queries and the resulting datasets. |
MSPB agreed with our recommendation. MSPB provided on July 14, 2021, a copy of its newly issued (7/13/21) data quality policy that includes a workflow for capturing and reviewing Whistleblower Protection Enhancement Act data. The policy includes requirements for regular reviews and supervisory oversight to reduce inconsistent data collection and entry practices in an effort to lead to higher data quality. In addition, the policy establishes quarterly quality checks of data entry to further help ensure data consistency.
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