Mark Flatten, in a series of articles in the Washington Examiner, has been investigating the fate of whistleblowers, especially those connected with Veterans Affairs. It turns out they usually suffer persecution of various kinds, including prosecution by the agency’s own Inspector General, for dubious causes. As well as other forms of intimidation, as in the good old fashioned “you’re fired.” What a surprise. Government bureaucracies punish those who don’t follow the official story. Whistleblowing apparently has its roots in 13 century English law, through Qui Tam; a common law writ that allowed those who aided in the prosecution of corporations or governments to be awarded the penalties assessed. In America, the False Claims Act of 1863 allowed for the filing of claims against government contractors. Most claims have been filed against military contractors and in the health care field. So it makes sense that much of recent whistleblowing activity has taken place at or around the activities of VA hospitals.

In the wake of what seems to be multiple cases of clear retaliation against such whistleblowers, one has to ask how effective can the Whistleblowing Protection of 1989 be? In what is at best a quasi-judicial and in-house system, can you really expect those who provide information to the media that may impact strongly on a government agency to receive anything but intimidation, exclusion and abuse? This is by no means to suggest that whistleblowing be ignored or punished with impunity, but how to effectively protect those who inform is a tricky question. One answer would be to take the information straight to the judicial system rather than have it fester in an internal review. Would this be feasible? Would the courts find themselves inundated with charges stemming from resentful employees? One has to remember that the Supreme Court has placed limits on the first amendment rights for government employees, especially those in the intelligence sector. Writing in Forbes magazine in 2010, Steve Pearlman, an attorney experienced in employment litigation, suggested that Dodd-Frank encouraged whistleblowers to head straight to 3rd parties like the SEC rather than resolve the issue internally. Part of the reason for this are the financial incentives offered to them, much like in the days of Qui Tam in 13th century England. Pearlman of course advocates in the same article for an open culture within corporations where financial misconduct is weeded out by well meaning complainers. Given the fate of recent whistleblowers at Veterans Affairs, can you blame them for wishing they had headed straight to a third party? And do government regulations even allow their own employees to do that? It will be a long time before we can expect ethical internal reviews in response to any employee complaint regarding unethical or illegal activity. But it remains, more than a worthwhile, a necessary goal.

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