The Dark Side of the NPS--Part II

Submitting a Whistleblower Protection Act Complaint
and my experiences with the
DOI OIG's Whistleblower Protection Office,
DOI's Core Plus ADR Process
and eventually the
Office of Special Counsel

The Whistleblower Protection Act is supposed to protect people who report and disclose "waste, fraud, and abuse" in our government.

Unfortunately, it is not well enforced, it is repeatedly ignored and disregarded, and it is violated with a sense of impunity by many government employees---and by many in the National Park Service. Consequently, in far too many of our national parks there’s an undercurrent of fear and intimidation among the employees---a very real fear that if you ask questions about budgets or question management decisions, you will not be re-hired if you are a seasonal, you will not be given permanent status if your are a term employee, and you’ll be reassigned to a less desirable position if you have permanent status. In a word, there is fear where there is supposed to be "no fear." And there is retaliation when it’s not supposed to happen, when it’s illegal, and when it’s in clear violation of federal laws and regulations.

Here's what happened to us...

Sara and I had planned to return to Mesa Verde National Park during the 2011 summer season. We had had three emails from our supervisor, Linda Martin, indicating we could plan on returning, we had told our friends that we would be returning, and we had made plans to return.

And why not? Mesa Verde NP is a wonderful place to work: people from all over the world travel out of their way to visit the park; there are hundreds of fascinating ways to make connections with the archeological resources and to share a compelling story of human history; there are interesting and dedicated co-workers committed to the ideals of the Park Service; and the environs are drop-dead gorgeous. After every summer, Sara and I had received compliments and letters of appreciation from visitors, and we had had very good evaluations from our supervisors. But in addtition, I had begun to ask questions about the park's budget and eventually filed a FOIA request "by the book" after conversations with and guidance from the FOIA Officers of the Department of the Interior and FOIA Officer of the National Park Service; and in the process I had reported and eventually disclosed instances of "waste, fraud, and abuse" to the Office of Inspector General... as we are supposed to do (see page 4 of the DOI Ethics Guide for 2010 or section (b) (11) on page 2 of the Standards of Ethical Conduct for Employees of the Executive Branch).

But that was all the past; in 2009, I had filed my FOIA requests, I had written the Office of the Inspector General, and the former superintendent at Meas Verde NP, Larry Wiese, had retired. Everything had happened in 2009. (To read more about what happened in 2009---including my letter to the OIG and its final report---go to The Dark Side of the NPS .)

Meanwhile, it was 2011. In September 2010, a new Superintendent had been appointed; and Tessy Shirakawa, the former Chief of Interpretation, had retired. And friends had reported there was a new atmosphere of openness and a new willingness to change and improve at Mesa Verde, and we were looking forward to another wonderful season at Mesa Verde.

Curiously, I had never heard back from the Office of the Inspector General after writing them and being interviewed by their investigator, I didn’t know if my concerns in 2009 had been justified; and I didn’t know if I had done the right thing in reporting what I thought was "waste, fraud, and abuse." Eventually my curiosity led me to contact the OIG and ask for a copy of the final report of its investigation. I was told that would be easy and that I just had to file a formal FOIA request and it would be sent to me---in a redacted version. Consequently, on January 5, 2011, I filed a FOIA request with both the NPS and the OIG asking for a copy of that final report.

In a quick response to my FOIA request, Charis Wilson, the FOIA Officer of the NPS, sent an email on the same day, January 5, 2011, to Sandra Evans, the FOIA Officer of the OIG’s office, suggesting that the OIG’s office should respond to my FOIA request since it had written the original document. Unfortunately, and for some reason which I still don’t understand, Charis Wilson sent a copy of that email---dated January 5, 2011---to both Bill Nelligan, the Deputy Superintendent at Mesa Verde NP, and to Jack O’Brian, the NPS Intermountain FOIA Officer. And then less than an hour after her first email, she sent another email to Sandra Evans with copies to Bill Nelligan and Jack O'Brian with information about my new FOIA request.

Nine days later, on January 14, 2011, Linda Martin called us to say she had been "ordered by the new Superintendent of Mesa Verde, Cliff Spencer, not to re-hire me." We asked about whether Sara could be re-hired, and Linda said she wasn’t certain...since Cliff Spencer had only mentioned me in his order. Linda said she would check...and four days later, on January 18, 2011, she called Sara and said she had been "ordered by the new Superintendent not to rehire Sara."

Was this retaliation? Was it a violation of the Whistleblower Protection Act, and in Sara’s case, was it also a violation of Title VII of the Civil Rights Act? We think so. Simply stated, we think....

We don't know---and we probably will never know---how Cliff Spencer got involved in Linda Martin's plan to re-hire us. Nevertheless, in the end, I think Cliff probably read a copy of the OIG’s report which would have been available to him as the park’s new Superintendent... and in that report, it clearly states that the investigation of the former Superintendent, Larry Wiese, and of Mesa Verde NP was initiated because of the letter I had sent to the OIG reporting and disclosing what I thought were a number of instances of "waste, fraud and abuse".

From the usage report on my web server, we also know that someone using the NPS server in the Intermountain Region spent a fair amount of time on my web site during the days immediately following January 5th and before January 14th...looking at the page which describes in detail my FOIA activities in 2009 (see Bruce’s FOIA requests in 2009. That page of my web site also discloses what some would consider a number of instances of waste, possible fraud, and the abuse of power.

In his conversation with Linda Martin about why I should not be re-hired, Cliff Spencer made a reference to something I had written on that web page---on the very bottom of the page---indicating he must have been aware of the disclosures on my website before making his decision, or that someone else had talked to him ---someone who was familiar with the disclosures on my web site.

In the final analysis, we know neither Cliff Spencer nor Bill Nelligan had talked with Linda Martin about re-hiring us before January 5, 2011---in fact, up until then she had written us that we could plan on being rehired. Consequently...we believe either Charis Wilson's two emails on January 5th initiated conversations between Bill Nelligan and/or Jack O'Brian with Cliff Spencer, or Betty Lieurance or Scott Travis began talking with Cliff Spencer about us.....and we believe those converstaions led Cliff Spencer to review the disclosures I had made in my FOIA requests, on my web site, and in my letter to the Office of the Inspector General which resulted in an formal investigation of Mesa Verde NP. And then "because of" those activities, he ordered Linda Martin not to re-hire us.

Needless to say, we were disappointed, and so we immediately called Cliff Spencer and spoke with him. All he would say is that "re-hire was not a guarantee" and that the "park was going in a new direction." We said we knew re-hire was never a guarantee---but in Mesa Verde’s case, we knew the park was hiring as many rangers as it had in the past, that it was following the tradition of hiring former rangers who had left with good recommendations, and that the staff was being re-hired by Linda Martin...who was using the same criteria she had used for years.

He then said, "The park is going in a new direction." We asked what that was: could he describe it? Could he describe what criteria of the "new direction" we didn’t meet? And could he describe how we failed to meet the objectives of the "new direction?" He simply said the park was going in a new direction. (Later we learned the park’s hiring policy apparently had not changed, it re-hired all the former rangers who had left with good recommendations as it has done for years, and it hired more returning rangers than ever before---perhaps because many, like us, may may have wanted to work for Linda Martin one last time before she retired.) When we mentioned to Cliff that we thought the only thing that set us apart from all the others who had been rehired and from those who were going to be rehired was that I had filed a FOIA request concerning the park’s finances and that I had written a letter to the OIG, and in Sara's case, that she was married to me, he denied it. And when I said we thought our not being re-hired might be a violation of the Whistleblower Protection Act....he hung up.

(Incidentally, it is true that "rehire is never a guarantee" and that no park has to rehire former seasonal staff. On the other hand, every federal employee is guaranteed the protections of the Whistleblower Protection Act and the Civil Rights Act. )

In the final analysis, we were very disappointed.........

Fortunately, we had enjoyed our previous summer at the Statue of Liberty and Ellis Island, we had continued to volunteer there during the winter months, and so we called and asked if we could be re-hired; and we were. And from April 24th until September 15th, we spent another wonderful and very busy season working at the Statue of Liberty and Ellis Island.

Filing a Whistleblower Protection Act Complaint....
and why the Whistleblower Protection Act and the No Fear Act simply are not working

On February 3, 2011, we contacted the Whistleblower Protection section of the Office of the Inspector General---and on February 8th, we had a long conversation with Laurie Larson-Jackson, the Associate Counsel who deals with Whistleblower Protection Act complaints. Following our phone call, we also sent her:

  • a Chronology of Events : a detailed summary of our experiences as Park Rangers leading up to filing our Whistleblower Protection Act complaint
  • an explanation of the Basis of our Complaints
  • and copies of our SF-50’s—confirming that we were "covered employees," that we had not worked as either volunteers or outside contractors, and that a violation of the the Whistleblower Protection Act had occurred.

Some of the Legal Aspects of Filing a Whistleblower Protection Act Complaint
e.g. the Legal Mumbo Jumbo underlying our complaint.

We sent Laurie Larson-Jackson this information because ...."In order to trigger the protections of the WPA, a case must contain the following elements: a personnel action that was taken because of a protected disclosure made by a covered employee"----this and what follows comes from the The Whistleblower Protection Act: An Overview:

"When Congress first enacted the Whistleblower Protection Act (WPA) in 1989, it stated that the intent of the legislation was to:

strengthen and improve protection for the rights of Federal employees, to prevent reprisals, and to help eliminate wrongdoing within the Government by---(1) mandating that employees should not suffer adverse consequences as a result of prohibited personnel practices; and (2) establishing ... that while disciplining those who commit prohibited personnel practices may be used as a means by which to help accomplish that goal, the protection of individuals who are the subject of prohibited personnel practices remains the paramount consideration.1

The operative statutory protections of the WPA are embodied in its definition of "prohibited personnel practices":

§ 2302. Prohibited personnel practices (b) Any employee who has authority to take, direct others to take , recommend, or approve any personnel action, shall not, with respect to such authority ...(8) take or fail to take, or threaten to take or fail to take, a personnel action with respect to any employee or applicant for employment because of ...

(A) any disclosure of information by an employee or applicant which the employee or applicant reasonably believes evidences ---(i) a violation of any law, rule, or regulation, or (ii) gross mismanagement, a gross waste of funds, an abuse of authority, or a substantial and specific danger to public health or safety, if such disclosure is not specifically prohibited by law and if such information is not specifically required by Executive Order to be kept secret in the interest of national defense or the conduct of foreign affairs; or

(B) any disclosure to the Special Counsel, or to the Inspector General of an agency or another employee designated by the head of the agency to receive such disclosures, of information which the employee or applicant reasonably believes evidences ---(i) a violation of any law, rule, or regulation, or (ii) gross mismanagement, a gross waste of funds, an abuse of authority, or a substantial and specific danger to public health or safety."

(Because they pertain to our case, I've emboldened certain sections.)

  • The Whistleblower Protection Act: An Overview was written in 2007 by the Congressional Research Service and prepared for members and committees of Congress. It describes in detail how ..."in order to trigger the protections of the WPA (Whistleblower Protection Act), a case must contain the following elements: a personnel action that was taken because of a protected disclosure made by a covered employee."

    • Covered Employees:... "Generally current employees, former employees, or applicants for employment to positions in the executive branch of government....are considered covered employees."
      • Sara and I can be described in two of these categories: we were former employees and we were applicants for employment.

    • Protected Disclosures:..."Any disclosure of information" that a covered employee "reasonably believes" evidences "a violation of any law, rule, or regulation" or evidences "gross mismanagement, a gross waste of funds, an abuse of authority, or a substantial and specific danger to public health or safety" is protected.... Moreover, "any disclosure" made to the Special Counsel or to the Inspector General of an agency or another employee designated by the head of the agency to receive such also protected." "The WPA protects "any" disclosure evidencing a reasonable belief of specified misconduct...".

      Once again, it seems my disclosures fit two of these definitions of "protected disclosures:"

      • My FOIA requests and the process of filing a FOIA request with the NPS disclosed what I "reasonably believed" were "violations of law, rule and regulation" and evidence of gross mismanagement, a gross waste of funds, and an abuse of authority.
      • Furthermore, I clearly had written the Office of the Inspector General of the DOI disclosing what I reasonably believed were instances of "a violation of any law, rule, or regulation" or evidences "gross mismanagement, a gross waste of funds, an abuse of authority."

    • A Personal Action obviouly had been taken against us. In point of fact, Cliff Martin had ordered Linda Martin not to re-hire us as seasonal Park Rangers, and so we were not re-hired for the 2011 summer season.

  • It is significant that the current WPA changed the burden of proof for victims of retaliation.

    • "The WPA changed the CSRA’s definition of prohibited reprisals against whistleblowers in such a manner that personnel actions taken "because of" protected conduct are prohibited, rather than personnel actions taken "as a reprisal for" protected conduct, as the original statute provided. The amendment was made because the phrase, "as a reprisal for" had been interpreted to require a showing of an improper, retaliatory motive on the part of the acting official."
    • "The WPA made it easier for a complainant to prove retaliation for whistleblowing in a corrective action before the MSPB. The Special Counsel need only prove by a preponderance of the evidence that the disclosure was a "contributing factor" in the personnel action, instead of a "significant factor."
    • In what is probably the most significant change from its statutory predecessor, the CSRA, the WPA increased the standard by which an agency must prove its affirmative defense that it would have taken the personnel action even if the employee had not engaged in protected conduct. Once the complainant’s prima facie case of reprisal has been established by showing that the whistleblowing was a contributing factor in the personnel action, the government is required to demonstrate by "clear and convincing evidence" that it would have taken the same personnel action even in the absent of such disclosure.(5 U.S.C. § 1214(b)(4)(B)) Under the CSRA, the government’s standard of proof was a "preponderance of the evidence." "Clear and convincing evidence," although a lesser standard than the criminal standard of "beyond a reasonable doubt," is greater than "preponderance of the evidence."

  • Finally, Sara had not been involved in any of my FOIA activities, she had never written the OIG’s office, nor had she participated in any of the disclosures in which I had been involved. It appears the only reason she was not re-hired was because she has been married to me since 1969.

    • Both the Whistleblower Protection Act and Title VII of the Civil Rights Act expressly prohibit this kind of discrimination against a family member of a whistleblower. In fact, on January 24, 2011, the US Supreme Court made a unanimous decision concerning cases like ours....establishing clearly and definitively how illegal it is to discriminate against a family member of a whistleblower:The Supreme Court Decision of January 24, 2011.

    • One of the few NPS Whistleblower cases that can be found on the internet is very similar to ours because it involved a seasonal worker in 1999 who disclosed safety problems at Crater Lake NP. The next season, he and his wife...who also was a seasonal worker at the park ...were not re-hired. They filed a Whistleblower Protection Act complaint, it took two to three years to adjudicate, but eventually, they both were re-hired: A Similar Whistleblower Protection case from 1999 and its Resolution

So What Happened and What’s Happening

Our Experiences with the Whistleblower section of the OIG

We initially contact the Whistleblower section of the DOI's OIG's office on January 31, 2011. We were concerned about not being re-hired anywhere, we were hesitant to file a formal complaint for fear of having more problems in being re-hired by another park, and quite frankly, we were hoping the OIG would react more quickly and proactively. Here are some of our first emails with the OIG's Whistleblower section:

According the OIG's website, the Inspector General may respond to possible WPA complaints in several ways. It can:

  1. Conduct an informal or formal inquiry to determine if reprisal is taking place;
  2. Advise the appropriate Assistant Secretary or Bureau Director to intervene if reprisal is occurring or threatened; and
  3. Assist the employee in seeking relief through the U.S. Office of Special Counsel or other appropriate authority if the reprisal continues.

In another email to Laurie Larson-Jackson, the OIG’s Associate Counsel responsible for Whistleblower Protection Act complaints, we had written, "You had mentioned that a formal complaint must be filed with the OSC...but quite frankly, we would prefer to see if our situation could be resolved through mediation ....before going through the process of filing a formal complaint with OSC. Consequently, is there a chance of pursuing option #2 above.....before we file a complaint with OSC?"

In fact, we had hoped the OIG’s office would conduct step 1; and we had presumed they would find we had a fairly good case. And then we had hoped the OIG would pursue step 2....thereby resolving our complaint quickly and avoiding the necessity of filing a formal complaint with the Office of Special Counsel which is a separate federal agency charged with investigating and prosecuting Whistleblower cases. For some reason, Laurie chose not to pursue options #1 and #2, and in the end, she simply recommended that we consider option #3. Specifically, she decided that:

  • Sara and I should contact the DOI’s Core Plus mediation group, and at the same time,
  • we could file formal complaints with the OSC.

Our experience with the OIG’s Whistleblower section provoke several questions:

  1. Why didn't the OIG’s counsel use options #1 and #2?
  2. After a brief review of the case, why didn’t the OIG’s office contact both Cliff Spencer and the Regional Director of the Intermountain Region (NPS), John Wessel, and inform them that a possible Whistleblower Protection Act violation had occurred---thus giving them the option of reconsidering Cliff’s orders to Linda Martin? This might have resolved the case quickly and avoided the much more formal and legal OSC process. Why wasn't this done?

  3. Why didn’t the OIG pursue the case internally? According to the federal "No Fear Act," each and every agency of the government is supposed to do what is necessary to enforce the Whistleblower Protection Act. Each agency is supposed to ensure that the WPA is not ignored or violated. In "passing the buck" quietly to the OSC, wasn't the DOI’s Office of Inspector General failing to meet its obligations under the law?

Quite frankly, one of our ongoing concerns has been how long it takes to process and resolve a legitimate Whistleblower Protection Act complaint. Simply stated, there doesn't seem to be any sense of urgency about the process. And we believe that is wrong---and very wrong---for two reasons:

  1. As we kept reminding Laurie Larson-Jackson and others during the process, we were able to get jobs and return to the Statue of Liberty and Ellis Island. But what if we had been one of the many young seasonal workers who after not applying for any other park positions because we thought our job was secure, suddenly found ourselves unemployed and without a job? Doesn't the Park Service have an obligation to respond as quickly as possible, and to try every possible option to resolve problems quickly and efficiently? Doesn't it have an obligation to make sure the process doesn't encourage victims just to give up?

  2. From what we could determine, John Wessel, the Reginal Director of the Intermountain Region of the NPS, didn't know about our complaint, and wouldn't be informed of it. And that's wrong. Very early in the process---and certainly as soon as a case begins to look legitimate---the supervisor of anyone accused of violating federal laws like the Whistleblower Protection Act should be informed. This would work as an effective deterrent. And how can the Whistleblower Protection Act and the "No Fear Act" work ...if no one feels their wrong doing will be reported to their supervisors?

Our Experiences with DOI’s Core Plus Mediation Program---the DOI’s version of Resolving Problems through an Alternative Dispute Resolution (ADR) process

Representatives of the DOI’s Core Plus program were very quick to respond to us....but then the process began to bog down. First, it took a while before Cliff Spencer chose to participate. Then Matt Wheeler of the Solicitor's Office for the Denver region of the National Park Service got involved. We were told the Solicitor's Office had been called by Cliff and that the Solicitor's Office wanted to make sure the OSC was involved in any final agreement that we might reach in the Core Plus negotiations---and that’s where things started to get both very confusing and very disappointing.

I asked Matt Wheeler from the Solicitor's Office, "Who was he representing: the National Park Service, Cliff Spencer, or Sara and me?" Since he had been called in by Cliff---was he serving as a "defense counselor?" Since Sara and I had been "victimized"---was he trying to help in making sure a wrong would be righted? Or, since a Park Service employee had violated the law, was he acting to make sure the Park Service corrected a mistake made by one of its employees---or was his interest just to make sure the spirit and intent of the Whistleblower Protection Act and No Fear Act were being following during the remediation of our case? When asked, Matt Wheeler simply said he was representing the interests of the National Park Service and the government.

Eventually, the Core Plus Process came to a grinding stop. From the very beginning, we had wanted three things:

  1. We had wanted some kind of public acknowledgement that Cliff Spencer had violated the Whistleblower Protection Act and in Sara's case, Title VII of the Civil Rights Act. We felt very strongly about this since many rangers hear about instances of retaliation but most feel the Whistleblower Protection Act is seldom---if ever---enforced; and except in rare cases like the Teresa Chambers case, news about Whistleblower Protection Act violations and enforcement is scant if not non-existent---perhaps because there is no news about its enforcement. Meanwhile, many rangers at Mesa Verde and other parks---many who have read these pages and know what we did and what happened to us---needed to know that in the end, "the system does work" and our laws are enforced. To be sure, "if it walks like a duck, swims like a duck, and quacks like a duck, it's probably a duck." In the opinion of many, our case---no matter how it is presented or analysed or dissected from a legal perspective---has seemed from the very beginning like a clear and prima facie case of reprisal--a text-book Whistleblower Protection Act case. And now many are waiting to see what happens. And they are wondering...does the Whistleblower Protection Act have any teeth or substance, or is it just the subject of a mini-course every federal employee has to take every year...which then can be forgotten because it has no purpose, it's never enforced, and it's totally ignored.
  2. We had wanted a guarantee that we could return to Mesa Verde NP as seasonal Park Rangers in either of the next two summers (2012 or 2013) and we had wanted to be offered park housing again in the White House Loop.
  3. We had wanted to be reimbursed for the $360 it had cost us to change the airline tickets we had purchased.

Matt Wheeler from the Solicitor's Office of the Park Service’s Denver Region maintained that the final agreement had to be confidential. We argued that the federal guidelines for any kind of ADR process stipulate that confidentiality must be maintained throughout the process and that all records and discussions during the process must be kept confidential----but the final agreement of an ADR process is explicitly exempted and excluded from rules of confidentiality (see 5 U.S.C. 571 (5) ...or pages 30-32 of The Guide for Federal Workplace ADR Program Administrators) . Regardless of the law, Matt Wheeler would not let Cliff or the NPS participate in a process in which the final agreement included any kind of public acknowledgment that Cliff had violated the Whistleblower Protection Act---or any form of a statement which would let everyone know what had happened, and how it had been resolved.

Once again, we had lots of questions:

  • Who was the NPS's Solicitor really representing? Cliff Spencer--who in our opinion clearly violated both the WPA and Title VII of the Civil Rights Act; the NPS--whose employee had violated the law and who some might feel had an obligation to correct the violation; or Sara and me--former employees of the NPS who had been denied employment by someone who had violated a law passed by Congress specifically designed to protect federal employees from retaliation? In the final analysis, who was the Solicitor representing?

  • If he was representing just the interest of the NPS, then the intents and purposes of the Whistleblower Protectin Act and the "No Fear Act" seem to be in conflict with his demand that the final agreement be kept confidential. Specifically, if violations of the law are put under a gag order, if the public reputations of those who are guilty are protected by confidentiality agreements not required by federal law or regulation, and if disciplinary action is not used and then publicized as a a disincentive to others, how will the NPS ever establish an atmosphere where employees feel the WPA is being enforced and that they can work without fear from illegal and/or inappropriate retaliation?

  • I asked Matt Wheeler again and again, "Other than some kind of public acknowledgement of wrongdoing, how can we communicate ...that in our case... the Whistleblower Protection Act worked. He had no answer---perhaps because his primary concern wasn't in communicating that the Whistleblower Protection Act is being enforced or that the "No Fear Act" works in the NPS.

  • As with many laws, part of their purpose is to protect victims, but another part is to create disincentives for anyone considering violating them. Consequently, there’s value in broadcasting occasionally that our laws are being enforced and that people who violate them will be punished and/or disciplined. There’s value in giving those who have suffered retaliation some hope that the system works, and giving those who might be prone to violating the laws reasons for not breaking the law. What are the NPS and its officers and Solictors doing to create a culture of "zero tolerance" for violations of the Whistleblower Protection Act?

  • And what is the National Park Service doing to create an atmosphere where there is "no fear" from retaliation ---as mandated by the "No Fear Act?" Unless it enforces these laws openly, publicly, and without any attempt to cover up, how will an atmosphere with no fear of retaliation ever be achieved?

Ironically, federal employees are mandated every year to take a short review course about the Whistleblower Protection Act and the "No Fear Act." In spite of this---in spite of the fact that we all review the Whistleblower Protection Act and the No Fear Act every year, Cliff Spencer apparently felt he could do what he did with impunity. And probably he felt he could retaliate against us and order Linda Martin not to re-hire us because he’s hasn't heard of any supervisors or Superintendents being prosecuted or punished for violating the WPA. How can that be changed? How can other supervisors and Superintendents get the message that they just can't violate the Whistleblower Protection Act without fear of punishment if they never hear of any enforcement actions?

Admittedly, Matt Wheeler, the Solicitor for the NPS, might have had another scenario in mind. For example, he might have hoped we could proceed with mediation and then settle the case---all under a "gag order" of confidentiality---with the understanding that we could return for a season as Park Rangers at Mesa Verde, that we would be reimbursed for our travel expenses, and that Cliff would agree to be transferred quietly to another position within the NPS. And what would have been wrong with that?

In fact, that’s a solution that happens often. Someone who is found guilty of violating a law or regulation is quietly and without fanfare transferred to another park---not unlike how priests who were guilty of crimes against children for years had been transferred quietly to other parishes. But is that a good solution? Does it do anything to communicate to everyone in the National Park Service that violations of the Whistleblower Protection Act will not go unpunished? And if not punished, won’t the perpetrators of retaliation feel they can continue with impunity?

In September we had our last conversation with the representatives of the DOI’s CORE PLUS program because we couldn't resolve our feeling that there had to be some kind of public acknowledgement that laws had been violated.....and we all decided to let the case continue with the Office of Special Counsel.

Moving on to the Office of Special Counsel was a significant step...because it meant we couldn't resolve what was a simple and clear-cut violation of the Whistleblower Protection Act within the Department of Interior; and we felt that was very sad. To be sure, up until this stage all our conversations had been with various departments and people who work for the Department of Interior---the DOI's Office of Inspector General, the DOI's CorePlus program, the DOI's Solicitor to its Denver office. In contrast, the Office of Special Counsel is an independent agency of the federal government ---created specificly by Congress to investigate and prosecute cases like Whistleblower Protection Act violations. In our case we had to go to the Office of Special Counsel because the Department of Interior seems to be more interested in delaying cases than in resolving them quickly, it seems to be more interested in protecting the reputations and careers of middle and upper management violators of laws like the Whistleblower Protection Act than in defending those who have been victims of retaliation, and it seems to be more interested in hushing up problems than in enforcing certain laws and in creating an atmosphere of "No Fear" within the agencies and departments of the DOI.

Our Experiences with the Office of Special Counsel

We filed our formal complaints with the Office of Special Counsel on May 9, 2011. At first there's a screening process, then the complaint is passed on to the OSC's own ADR group, and finally it is received by an investigating attorney from the OSC's Investigation & Prosecution Division.

It took until the third week in July before the screening process began, and then several weeks later the OSC's ADR group contacted us. Unfortunately, we didn't get very far with any kind of ADR (Alternative Dispute Resolution) because of the same issue we had with the DOI's CORE PLUS mediators. Specifically, the ADR representative wanted the final negotiated agreement to remain confidential (e.g. there would be a gag order.)

Again, I indicated that 5 U.S.C. 571 stipulated that the ADR process had to be confidential throughout the process, but that the final agreement was excluded from those confidentiality, non-disclosure requirements. Again in the end, we agreed to disagree....and the case moved on to the Investigation & Prosecution Division.

Sara and I finally were interviewed by the Investigation and Prosecution Division of the OSC on October 26, 2011, later certain documents were requested from Mesa Verde NP, and then we see how long the process would take!

An Addendum

December 2, 2011: An Email from the Solicitor's Office...David vs. Goliath?

Throughout the process of filing our Whistleblower complaint with the Department of Interior and eventually filing a formal complaint with the Office of Special Counsel, we were never sure if John Wessels, the Regional Director of the Intermountain Region of the National Park Service, knew about our case; and if he knew, when he was told about it. Although we felt he should have been notified quickly that one of the superintendents within his region had been accused of violating the Whistleblower Protection Act, and that a formal complaint had been filed first with the DOI’s OIG, and later with the OSC.....we weren’t sure if and when he had been notified. Simply stated, I’d become increasingly curious about how the process works within the Department of Interior. When are supervisors notified of alleged violations? What triggers the notification of supervisors? And in our specific situation, when was John Wessels aware of our case?

On November 29, 2011, I sent John Wessels an email asking when he had been notified of our case. And on December 2, 2011, I received a response......but not from John Wessels. The response came from Matthew Wheeler, the Solicitor for the Department of Interior in Denver, and the response reveals a lot about how the Department of Interior responds to Whistleblowers. Here is a link to Matt Wheeler’s response to my email to John Wessels...including my original email to John Wessels.

  • "The Defense Attorney"--- During one of my earlier conversations with Matt Wheeler, I had asked: who was he representing-—Cliff Spencer as Cliff’s “defense attorney,” or Sara and me as the apparent victims of retaliation by a National Park Service employee, or the NPS and DOI as the agencies within which two federal laws had been violated by an employee. Matt Wheeler was fairly vague in his answers.....but from this recent email, it seems Matt Wheeler is acting more like a defense attorney ---and as a defense attorney for Cliff Spencer and “The Agency”.

    What's very disappointing is that Matt Wheeler, a Solicitor of the Denver Office of the Department of Interior, seems more interested in defending or protecting a superintendent accused of violating the Whistleblower Protection Act and the Civil Rights Act than in protecting and defending the Department of Interior from violating its own obligations under the Whistleblower Protection Act and the "No Fear Act." To be sure, if he or others within the Department of Interior don't try to protect us, defend us, or make any effort to enforce the WPA or CRA in our case, and if they don't try to make sure what happened to us doesn't happen to others, then how can the Department of Interior say it's working to create an agency where no one should fear retaliation, and where the Whistleblower Protection Act is enforced? Quite frankly, we are getting the impression that within the Department of Interior the Whistleblower Protection Act is enforced only when the Department is forced to follow the law---because of suits filed within other agencies of the government (like the Office of Special Counsel) or by litigation (as in the recent and well publicized Teresa Chambers case). And isn't that sad?

  • "The Agency:" --- Matt Wheeler seems to have lumped Cliff Spencer, John Wessels, the NPS and the DOI all into one group---e.g. "The Agency". To be sure, my email was sent to John Wessels; sent to him personally and as one person asking questions of another person, and asking about how the process works, and about how quickly someone in his positions is notified of an alleged violation of law by someone for whom he is the immediate supervisor. Nevertheless, John immediately forwarded my email to Matt Wheeler, and Matt Wheeler responded on behalf of "The Agency." So who all is included in "The Agency?"

    In our minds, we had filed complaints against Cliff Spencer ---not against John Wessels, the NPS or the Department of Interior. And yet, in his email, Matt writes, "The Agency" is in receipt of your inquiry.....the Agency respectfully declines to answer your questions." By filing a Whistleblower complaint against Cliff Matt Wheeler and the Department of Interior view our case as a complaint against just one person ----or as a complaint against "The Agency"---and everyone in it?

  • "David vs. Goliath"---It’s easy to begin to get a sense of "David vs. Goliath" ---it’s easy to begin to feel that you’re all alone, and that battle lines are being drawn with you on one side, and with the entire "Agency" on the other side. And whereas you are standing alone, the person who seems to have violated two laws is being defended and helped by all the staff and resources of the National Park Service and the Department of Interior.

    In the beginning, we assumed everyone in the Department of Interior and the National Park Service would respond quickly; we assumed they would try to determine as quickly as possible whether our complaint was valid; and if our complaint was found valid, we assumed the Department would do what was necessary to enforce the laws of Congress. Instead ...from the very beginning, the Department responded very slowly, it never tried to validate our complaint or investigate the validity of our complaint, and it just seems more interested in defending its people and its reputation than in enforcing some laws of Congress.

At this stage, if it wasn’t for the Office of Special Counsel, we would feel all alone and abandoned. For instance, whereas one part of the DOI’s Office of Inspector General quickly responded to my letter in 2009 describing instances of waste, fraud, and abuse at Mesa Verde, the OIG's Whistleblower section never seemed interested in investigating our case, in looking at the facts, or in offering an opinion as to whether our complaint was valid. Why? In our opinion, the OIG’s specialist on Whistleblower cases should have done a preliminary investigation of our case, and rendered a quick assessment; she should have decided whether we had a valid complaint not. And if our complaint wasn’t valid, she should have explained to us why it wasn’t valid. In contrast, she admitted she had never called anyone at Mesa Verde, she didn’t do a formal or informal investigation of our case, and she never gave us an opinion as to whether our case was valid. She simply “forwarded” our case to the DOI’s CorePlus group and also suggested we could file a complaint with the Office of Special Counsel. Later, during the CorePlus process, we spoke with Matt Wheeler, the Solicitor from the DOI’s Denver office---and he too seems to have had absolutely no interest in whether the Whistleblower Protection Act had been violated---in fact, it seemed to us that he already was playing the role of a defense counselor.

Simply asked, is it only the Office of Special Counsel who has responsibility for enforcing the laws of Congress as they pertain to Whistleblowers, or does each and every Agency of the government have a responsibility? Is the Department of Interior’s responsibility for enforcing the "No Fear Act" limited to having employees take a short online Whistleblower course every year, or does it have a greater responsibility for creating an atmosphere where no one fears retaliation for exposing waste, fraud, and abuse? And how do you create an atmosphere where there is a "zero tolerance" for discrimination and illegal retaliation if no one within an Agency is interested in enforcing the laws, prosecuting or disciplining violators, and helping those who have been victims of discrimination and/or retaliation?

In the final analysis, Matt Wheeler’s response to me revealed a lot---perhaps too much. It revealed a mindset within the Department of Interior that is disappointing to anyone who would presume impartiality within an "Agency" of the government, it revealed an inclination to "circle the wagons" and stand together to defend any DOI employees no matter how good or bad, instead of an inclination to stand for fairness, just application of laws and regulations, and compassion for those who have suffered discrimination or retaliation, and it revealed a mindset that’s willing to waste a lot of time and money, instead of just doing what’s right and resolving problems quickly and openly and with transparency.

A Summary of Significant Dates:

JANUARY 14, 2011---Linda Martin called Bruce to say he would not rehired for the 2011 season.

JANUARY 18, 2011---Linda Martin called Sara to say she would not be rehired for the 2011 season.

FEBRUARY 3, 2011--Our first contact with Laurie Larson-Jackson of the Whistleblower section of the Department of Interior who did virtually nothing.

MAY 9, 2011---Our first contact with the Office of Special Counsel.


JANUARY 14, 2013---Because the DOI and NPS had been so unwilling to enforce the WPA or follow several guidelines of the OPM, I wrote the following Letter to the Office of the Inspector General of the Department of Interior concerning DOI Violations. In sum, this is a formal "disclosure" which I also sent to the Office of the Attorney General alleging that the DOI is not enforcing the WPA and the No Fear Act and not following guidelines of the OPM as they pertain to disciplining violators of the WPA and protecting victims of retaliation.

JANUARY 25, 2013---The OSC called to say the final draft of their report had been completed, and that now they would begin begin settlement discussions with "the Agency" for both corrective action and disciplinary action. And so there was progress! During those negotiations between the OSC and the DOI (and NPS), we hoped those representing the DOI would agree that what happened to us was a clear, simple, and blatant violation of the WPA, and that they would recommend some kind of significant disciplinary action---something that could have been a real disincentive to those contemplating violating the WPA. To date that hasn't been happening in the DOI and NPS. They haven't been doing what they could to enforce the No-Fear Act or the WPA, or follow the Disciplinary Best Practices and Advisory Guidelines Under the No Fear Act. They haven't been willing to disciplining violators, and they haven't been willing to publicized cases where supervisors have been found guilty. And they try to say that can't do anything---any reprimands or any discipline---once a case has been filed with the OSC....which simply isn't true.

AUGUST 2013: NPS officially agreed to a settlement involving both corrective action and disciplinary action...but wants a final written agreement to be signed.

SEPTEMBER and OCTOBER 2013: NPS lawyers continued working on the details of the final written settlement agreements. (Admittedly for several weeks in October 2013 the government was "shut-down.")

NOVEMBER 27, 2013---We finally recieved a signed Settlement Agreement and on December 2nd we signed it, and now everything is settled...and after 1028 days the legal process is over.

In the end, we got what we wanted: reimbursement for the cost of changing our air plane tickets in 2011 ($220.58); a guarantee of jobs as seasonal Park Rangers next summer; and recognition that Cliff Spencer, the Superintendent at Mesa Verde, had violated the Whistleblower Protection Act and was wrong in ordering Linda Martin not to hire us.

And for those who have been keeping track, the final agreeemnt was sent to us 1028 days after we first contacted the Whistleblower section of the IG's office, and 933 days after we first contacted the OSC. Is this how the Whistleblower Protection Act is supposed to work?


One last note: In late 2012, the new and revised Whistleblower Protection Enhancement Act was enacted by Congress and signed into law by President Obama. There have been many reactions to the final bill---most glad that many revisions and modifications were adopted, and some unhappy that the bill didn't go far enough to protect Whistleblowers. Unfortunately, the bill may be very good, but nothing will change until the administration enforces the law. A recent "Op-Ed" submission by Bruce:

The Whistleblower Protection Enhancement Act of 2012: Will Anything Change?

Return to:

The Dark Side: Part 1---Filing a FOIA Request in 2009

Another Season at the Statue of Liberty and Ellis Island---2011
Opening Main Page of the Schundler Family Website

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