TO: Chapter Presidents

-2-

January 12, 2009

M E M O R A N D U M

TO: Chapter Presidents

RE: Adverse Whistleblower Decision

SUMMARY: On remand from the Court of Appeals, the MSPB has reaffirmed an earlier decision upholding the removal of former Park Police Chief Teresa Chambers, denying her claim of whistleblower retaliation.

The Merit Systems Protection Board (MSPB or Board) has issued a very disappointing decision upholding the removal of Teresa Chambers, the former Chief of the U.S. Park Police. Chief Chambers was removed for making statements to the media and a congressional staff member about her concerns that inadequate Park Police staffing and budgeting were putting the public at risk. She claimed that her removal violated the Whistleblower Protection Act, 5 U.S.C. § 1221(e) (WPA). The MSPB had earlier upheld her removal in a decision that she then appealed to the United States Court of Appeals for the Federal Circuit. NTEU submitted an amicus brief on behalf of Chief Chambers in that case, because it involved important whistleblower issues. The Federal Circuit ruled that the Board had applied the wrong standard in assessing whether Chief Chambers had made protected whistleblower disclosures. Chambers v. Department of the Interior, 515 F.3d 1362 (Fed. Cir. 2008). It remanded the case to the Board for further consideration.

On remand, the Board took a very narrow view of what constitutes a protected disclosure under the WPA. Under its decision, a disclosure that concerns public health and safety issues is only protected if people have already been hurt or are likely to be hurt soon. In NTEU’s view, the whistleblower law does not require such a high degree of certainty. Statements can involve a “substantial and specific danger to public health and safety” even if people have not actually been hurt or will imminently be hurt. Alerting the public to the reasonable possibility of harm should be sufficient to trigger the law’s protections.

The MSPB also ruled that even if some of Chief Chambers’ comments constituted protected whistleblower disclosures, the agency had proved that it would have taken the same action against Chief Chambers absent those disclosures. We question this aspect of its holding, too.

NTEU is disappointed in this decision. It sends an unfortunate message to potential whistleblowers across the government. We will continue to work closely with Chief Chambers’ counsel on this matter. A further appeal to the Federal Circuit is possible.

Colleen M. Kelley

National President