The Foreign Service Journal, September 2021

THE FOREIGN SERVICE JOURNAL | SEPTEMBER 2021 47 or regulation. As regards disclosures that involve classified infor- mation, employees should be particularly careful to use lawful channels, such as their agency’s Office of the Inspector General. How Protections Work Three general observations about how whistleblower protec- tions work are worth briefly sketching here: First, whistleblowers are typically required to exhaust “administrative” options or processes before they can go to court. The State Department’s OIG provides this guidance: “Federal employees may make a protected disclosure to the Office of Special Counsel, OIG, or another employee designated by the [agency].” Given that federal employees do not have access to courts except for limited review of administrative decisions, Civil Service employees often must first bring their concerns to the U.S. Merit Systems Protection Board, while Foreign Service employees can avail themselves of the grievance procedures set forth in 3 FAM 4400. Second, the complaining individual should not worry about having absolute certainty before raising a concern: They need only have a “reasonable belief” that there has been serious wrongdo- ing—even if it later emerges that the employee was mistaken. Third, if somebody alleges they are a victim of retaliation— which might include being given a poor performance evalua- tion, being overlooked for promotion or being harassed in some fashion—for having reported others’ misconduct, such a person simply has the burden of establishing a prima facie case of retali- ation to have the burden shifted to the employer to prove the absence of retaliation or retaliatory motive. In short, although U.S. whistleblower law is complex, it delin- eates a path for people to follow when they believe that waste, fraud or abuse has happened, and the law seeks to help those who might suffer retaliation for doing their duty by reporting misconduct. Yet people may wonder whether their agency’s OIG (or similar office) can handle their cases discreetly. Certainly, it is natural for anyone who wants to blow the whistle to worry about whether their career will be stymied or ended, even if their alle- gations prove to be correct. Where Can You Turn? Given that it may take time and determination to see a whistle- blower disclosure to a successful conclusion—and given that, in the meantime, one risks retaliation and/or career damage—the decision to blow the whistle is a very important and sensitive one. Equally, all of us who work (or have worked) in the U.S. govern- ment know that our principal duty is to serve the American people by preserving and protecting the Constitution. Our natural inclination is, therefore, to want to fight the good fight, including reporting, and pursuing accountability for, misconduct. To navigate the decision-making process, Foreign Service employees (and other U.S. government employees) can turn to several resources: American Foreign Service Association. AFSA offers a strong labor-management team that is available for consultation and assistance, as well as a series of guides offering basic information on a wide variety of subjects that are often matters of concern. Office of the Inspector General. At the Department of State & USAGM, contact the inspector general at WPEAOmbuds@ stateoig.gov. At USAID, contact the inspector general at oigombud@usaid. gov. At the Foreign Commercial Service, contact the inspector general at wpo@oig.doc.gov . At the Foreign Agricultural Service & APHIS, contact the inspector general at OIGWPC@oig.usda.gov. Public Interest Organizations. GAP’s publication, Truth- Telling in Government—Guide to Whistleblowing for Federal Employees, Contractors, and Grantees , contains a list of several other public-interest organizations that may be able to offer guidance (see bit.ly/GAP-truth-telling) . GAP, unlike most such organizations, can offer legal repre- sentation to whistleblowers—such that attorney-client privileges attach—in proceedings, once potential whistleblowers complete an intake process. AFSA Teams Up with GAP In the Journal’ s May 2020 issue, AFSA President Eric Rubin underscored the role of AFSA as a “bulwark” for defending members of the Foreign Service across six agencies, in particular against being silenced or becoming “political pawns.” So when the opportunity arose, AFSA and GAP teamed up to offer AFSA members a webinar, and now this short primer, on whistleblow- ing protection processes. AFSA recognizes that no matter the administration, miscon- duct that may prompt whistleblowing is a never-ending challenge. At the same time, although whistleblowing will always require courage and perseverance, resources are available to help you navigate the moral, professional and legal issues that arise. For more information, see the webinar organized by AFSA and the Government Accountability Project in March, available at bit.ly/AFSA-GAP-webinar. n