Rarely these days, do I see an article of high merit coming out of mainstream media. Normally, those articles are reserved only for venues with more independent sources of revenue, like ProPublica, or TPMMuckraker. (Two of my favorites, by the way)

Well, strike that thought today. The Orange County Register has a blog entitled “OC Register, Your Taxpayer Dollars at Work,” and it has posted a superb article on the Merit Systems Protection Board and Whistleblowers.

Writes OC Register Watchdog Blogger Teri Sforza:

MacLean was fired from his job as a federal air marshal for disclosing sensitive information to the media. That text message, MacLean argued, wasn’t marked as sensitive information; it arrived on his mobile phone, not on his secure PDA. The government argued that the message didn’t need to be marked “sensitive;” all details regarding the deployment, number and operations of federal air marshals were protected information. (Several months after MacLean was fired, the government reclassified the contested text message as “sensitive security information.” Just in case?)

THE DECISION

So this week’s decision by the U.S. Merit Systems Protection Board - ”an independent, quasi-judicial agency in the Executive branch that serves as the guardian of Federal merit systems” - was mainly to settle the legal question of whether whistleblower protection extends to people who disclose sensitive security information (regardless of whether they believe such disclosure is in the public’s best interest).

Nope, the board concluded; whistleblower protection does not apply to the disclosure of sensitive security information. Such information cannot be revealed. Period.

In her article, Sforza astutely notes that :

• The ruling in his case - MacLean vs. U.S. Department of Homeland Security - could jeopardize whistleblower protections for other federal employees,
• The court topped each page of its decision with the screaming header ”SENSITIVE SECURITY INFORMATION,” and each footer with “ WARNING: This record contains Sensitive Security Information ….No part of this record may be disclosed to persons without a ‘need to know”…. Unauthorized release may result in civil penalty or other action….’”And that this decision was posted publicly online anyway, taken down, and then reposted with all that scary ”SSI/Warning” stuff removed. (You can see the original version here: maclean-decision-marked-ssi).

That last bit is funny, or ironic, or sad, depending on your vantage point, because MacLean was fired for disclosing “sensitive security information.”

Sforza continues on, holding back nothing:

Sen. Barbara Boxer thanked the federal air marshals who outed their bosses’ dumb ideas back in 2003; what does she think of all this now? We asked, but haven’t heard back.

. . . Mr. President? Sen. Boxer? Again we ask: Is MacLean hero, or villain?
 

Keep hot on the accountability trail, Ms. Sforza. Hold our elected officials accountable not just for words, but for actions in support of their words.   As recently as a few days ago, Senator Feinstein had also been publicly espousing whistleblower protection.  A few weeks ago, so had a DOJ spokesperson.  If it’s any consolation to those who stepped forward in the name of our country, it’s clear that the public wants ethical citizens on the inside of government, instead of outside, which is where most of them ended up during the dark years of the torture administration.  Now what they — and we — have to do is keep pushing to make it happen.

The honeymoon phase is over.

Look, there’s nothing not to like.  Obama is empathetic to the human plight.  His thoughts are deep and well-constructed.  He’s bright.  He’s ambitious.

He’s too ambitious.  He’s trying to fix what decades of abandonment and abuse have created in our democracy.  He’s trying to fix it all at once.

I’m extremely saddened by the decision recently issued by the Merit Systems Protection Board (MSPB) on Robert MacLean’s case.  It has essentially validated what we knew all along.  Rules and laws do not apply to the government; the government can change history — retraoctively.  Yet, at the same time, I know the MSPB case does not represent Obama, and very likely does not represent his views.  It probably represents the views of those Senior Executive Service (SES) career employees that Obama has no influence over.

And while Obama does what Obama does best (the greatest good for the greatest number), his renegade children misbehave.  He’s like the newly married stepfather of rotten kids raised by an abusive dad.  Right now, Obama is hitting the road promoting a universal health care plan.  We need this plan.  A health plan must encompass the entire population in order to be successful.  No individual can be left out.  Such a plan must be implemented in America in order to promote the values of democracy, as well as to help the country grow.

And yet, here in whistleblowerland, Mr. MacLean is being done wrong.  Obama’s message has not filtered to those who make the decisions at the Department of Homeland Security.  It has not filtered to the Merit Systems Protection Board and its members Neil McPhie and Mary Rose.  And throughout the country, Obama’s message is not being heard by SES civil servants accustomed to being beyond reproach. 

I still stand by America.  I still stand by Obama.  In the words of Martin Luther King Jr, “We, as a people, will get to the promised land.” 

I’m just bummed about the pothole we hit on the road this week.

Last week, Senator Jay Rockefeller (D-WV) introduced a bill to limit the use of pseudo-classified labels such as “sensitive security information.”  As some readers may recall, former Federal Air Marshal Robert MacLean was terminated for disclosing SSI, even though it was not labeled SSI at the time.

Yesterday, the Merit Systems Protection Board (MSPB) accidentally disclosed SSI, then did what any quick-thinking renegade might.  It removed the label — because it could.  (Besides, after ruling on the disclosure of retroactive SSI, one might wonder if MSPB might then have to fire itself.)

As the Project on Government Oversight has noted, the use of SSI is growing, and now includes private entities hoping for the same privilege  the government has claimed.  The use of poorly-defined (one might even say, arbitrary) SSI threatens transparency and hinders ethics.

 The Government Accountability Project has released a detailed analysis of the MacLean v. Department of Homeland Security decision.  Legal Director Tom Devine stated, “Until Congress acts, the Whistleblower Protection Act is dead. The MacLean decision means government agencies can fire employees for any disclosure otherwise protected by the WPA. The decision reduces the WPA to a voluntary guideline that agencies can cancel at will by issuing blanket gag regulations.”

Hurry, hurry, step right up! Get your special version of this personal information management (PIM) software. Richard Nixon only wished technology was so advanced in his Presidency.

Yes! This special version of calendaring software automatically deletes your appointments. You don’t have to lift a finger to make it happen. And best of all, it can never be retrieved again!

I must say, both the Judge and I were incredulous, but hey, if counsel Andrew Schultz wants to sign it under the penalty of perjury — it must be TRUE!  (At today’s hearing, FIVE federal employees showed up to demonstrate their support for the “underdog” executive branch.  Best of all, the Department of Justice made Andrew Schultz (DOL) personally explain all of the most ridiculous parts of their argument to the judge.)

From Ashbury Press:

I just wanted to alert you that we just updated the database to show fed employees, location, job title, salary and bonuses for FY 2008. We also have a link to the older 2007 data on the site.

The database URL is still the same at http://php.app.com/fed_employees/search.php.

** This site still remains one of the most popular links.  Information on the individual salaries of all non-classified federal employees is available, and now Ashbury Press has added Postal Service wages too.

Guest Posting from Shanna Devine on behalf of the Make it Safe Coalition:

So, how’s this for uncanny timing? I’m set for a hearing next week on the Department of Labor’s mass destruction of evidence,/1  and here is today’s news:  whistleblower Teresa Chambers, the Park Service Chief forced out during the Bush Administration, won her privacy act appeal. The Department of Interior destroyed her favorable performance record, and the DC Court of Appeals ruled that the Agency’s actions violated the law.

An excerpt from PEER.ORG:

CHAMBERS WINS APPEAL AGAINST U.S. INTERIOR DEPARTMENT — Privacy Act Violation for Bush Officials Destroying Favorable Personnel Evaluation

Washington, DC — In a unanimous ruling, the U.S. Court of Appeals for the District of Columbia today upheld the claim of former U.S. Park Police Chief Teresa Chambers that records exonerating her may have been illegally destroyed by Bush administration officials. The ruling also sets a precedent for using the Privacy Act to redress improper shredding of personnel files and other records, according to Public Employees for Environmental Responsibility (PEER).

Score one for returning America to the democracy we once knew.  Click here for the full release.

/1 update on my own saga: the Department of Justice (DOJ), after realizing that their written statement incriminated the government in serious wrongdoing,  is now trying to backtrack on its letter.  What transpires on June 24 is sure to be “interesting.”

I don’t have a whole lot of time to write, but the buzz I’m getting from advocacy groups and whistleblowers is that they are encouraged by what they heard from Congress and from the Administration regarding whistleblower protection.

For those catching up on the news, a hearing was held on proposed amendments to the the whistleblower act, and our friends from the Government Accountability Project (GAP), Project on Government Oversight (POGO) and Public Citizen were there. You can read more at Danielle Brian’s (POGO) twitter page.

P.S.  Regarding the Merit Systems Protection Board (MSPB), Tom Devine of GAP managed to get in a few words reminding Congress to push the administration to appoint new board members to MSPB.

Senate hearing transcripts and video available [here]

Just got back from a conference. Wow. The Department of Labor claims that it has already destroyed the evidence ordered by the court. I can’t wait to see it in writing. . .

It was pretty funny to see the Department of Justice Assistant US Attorney sitting there, trying not to gape.

Let’s see how they spin this one in its communication. As readers are aware, it wouldn’t be the first time that they’ve spoliated evidence.

The big news today is Congress’ impeachment hearing of Texas Federal Judge, Samuel Kent.  Kent — at the time (and apparently still) a sitting judge, was indicted on obstruction of justice in exchange for the government dropping the more serious charges of sexual assault. Today’s hearings are necessary, because under the law only an impeachment can halt salary and retirement benefits to an Article III judge.

Kent has submitted his official resignation — to take effect June 2010, one year after he reports to prison.  But before anyone gets upset over the idea that he would collect a full salary of $174,000 a year and benefits until the resignation takes effect, his attorney, Dick DeGuerin asks Congress to have mercy on poor Judge Kent, a man described kindly in the Almanac of the Federal Judiciary as, “pompous” and “bombastic.”

You see — according to Attorney DeGuerin — Judge Kent is a human, and as a human, he experienced trauma in his life.  He lost his first wife to cancer and has battled alcoholism.  This is what made him grope his subordinates.  It really wasn’t his fault.  In fact, Judge Kent, in a written statement, has blamed his behavior on alcoholism, an unspecified personality flaw and the sense of loss he suffered during and after the death of his first wife from brain cancer.

From the bottom his his heart, Kent instrospectively wrote, “Perhaps I was attempting to meet an unfilled need for affection.”

With regard to lenience, I doubt this is what Obama meant by having empathy for others.  I think what Obama meant is that judges should have empathy for others, and not that society should have empathy for emotionally-sick judges.

This situation has personal meaning for me.  I completely understand the sentiments of Donna Wilkerson, one of the women who came forward to report his behavior. CNN wrote:

In the most emotional moment, Wilkerson described trying to tell her teenage daughter to never endure any sexual misconduct, even if it meant harsh consequences such as losing her job.

“How could I look her in the face and tell her these things when I couldn’t do it myself,” she said, her voice cracking. “So I had to come forward. I had to do the right thing.”

Her concerns are not unlike ones I expressed earlier.  Ms. Wilkerson came forward to support statements made by Kent’s former case manager, Cathy McBroom, the employee who lodged the initial complaint.  Ms. McBroom’s comments are eerily similar to something I recall:

McBroom, a court employee who lodged the original complaint against Kent in 2007, described similar incidents. She said some occurred within obvious earshot of security guards, but she believed no one would help because of Kent’s power in the courthouse.

“I even said, ‘Judge, the guards are right outside. I know they can hear us,’” she recalled about one incident. “He said, ‘I don’t care who hears us.’ He wasn’t afraid of that at all, and that made me more frightened. I guess he thought he was powerful enough that no one would come to help me, and he was right.”

and from an article at law.com:

Cathy McBroom, Kent’s former case manager, told Vinson, “I will forever be scarred” by what happened to her in Galveston.
She said that she would avoid Kent at the courthouse when he was intoxicated. “Being molested and groped by a drunken giant is not my idea of an affair,” McBroom said, noting that Kent falsely told others that she was pursuing him.

And yet, I do actually feel empathy for Judge Kent.  Perhaps somewhere along the line he really did snap.  However, the bottom line is this: If you need emotional help, please seek it.  There is no stigma attached to being responsible for your own actions.  This is particularly true if you are tasked with the judicial temperament of our Country.

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Note: The House Judiciary Committee site has posted Kent’s letter.  In it, Kent follows his “unfulfilled need for affection” statement with, “I allowed myself to maintain unrealistic views of how they [Wilkerson and McBroom] perceived me and my actions.  I sincerely regret that my actions caused them and their families so much emotional distress.”  He then goes on to write, “I believe that if I had sought and received proper therapy following the death of my first wife, Mary Ann, and proper treatment for my alcohol abuse, none of these problems would have ever occurred.”  These are wise words too late.  In the wake of his poor judgment, he has left behind a trail of victims.  McBroom’s marriage failed and Wilkerson reported a tremendous burden on her own marriage.  Both of these women in their 50’s were in the prime of life, where they should have been rejoicing in typical milestones rather than dealing with an uncontrolled Kent.