The U.S. Special Counsel on Wednesday warned that agencies could be reprimanded for targeting whistleblowers and monitoring emails that report wrongdoing.
In the memo, Special Counsel Carolyn Lerner said that targeting emails between whistleblowers and the OSC or inspectors general for surveillance is “highly problematic.” Agencies that deliberately target whistleblowers’ submissions or draft submissions to OSC or IGs could be accused of retaliating against the employees, Lerner said.
“This is the first finding that we are aware of in which a government agency has stated that there are limits on how federal agencies can monitor employee email,” Stephen Kohn, executive director of the National Whistleblowers Center, said in an interview.
The guidance comes fives months after six current and former Food and Drug Administration whistleblowers, whom Kohn represents, filed a lawsuit claiming that top FDA managers monitored and seized emails from their personal email accounts.
FDA fired two employees and did not renew contracts for two others.
The matter is pending in the U.S. District Court of Washington and at the OSC, which launched an investigation to determine whether the FDA broke personnel rules
The FDA case alone didn’t prompt OSC to release the memo, OSC spokeswoman Ann O’Hanlon said in an interview. The Council of the Inspectors General on Integrity and Efficiency had requested guidance from OSC about electronic monitoring policies.
While agencies have a right to monitor employee emails and business conducted on government-issued devices, “federal law also protects the ability of workers to exercise their legal rights to disclose wrongdoing without fear of retaliation,” Lerner said.
She also urged agencies to ensure their electronic monitoring policies do not interfere with or deter employees from reporting fraud, waste and abuse.
“There has to be a bottom line that you can’t target whistleblowers,” Kohn said.