In a 2-1 decision, the MSPB has affirmed the decision of its Administrative Judge that fired U.S. Park Police (USPP) Chief, Teresa Chambers, was not entitled to whistleblower protection when she made various disclosures about the capability of the U.S. Park Police to adequately safeguard national monuments and perform its other functions. (Chambers v. Department of the Interior, DC-1221-04-0616-W-1, DC-0752-04-0642-I-1, September 21, 2006.) The decision resulted in a rare split among the Board’s three members.

In the case presented to the full Board, Chambers alleged that her termination was in reprisal for four instances of protected whistleblowing. Chambers alleged that the following disclosures were protected under 5 USC § 2302(b)(8): 1) a conversation with a congressional staff member in which Chambers objected that the USPP had to pay for a study concerning its own progress in implementing recommendations about improving Park Police performance, including redeploying officers to enhance security over the national monuments and memorials on the National Mall; 2) an interview with a Washington Post reporter in which Chambers publicly disagreed with the decisions of superior Park Service officials to cut back on patrols on the Baltimore-Washington Parkway, reduce enforcement of traffic and drug laws in favor of increasing security at National Mall monuments and memorials, and also agreed with complaints of the Park Police union; 3) a letter to the Director of the National Park Service, her second-line supervisor, in which Chambers complained that her first-line supervisor had, among other things, “slandered” her; and 4) an e-mail to a congressional staff member in which Chambers complained of a “staffing and resource crisis” at the Park Police. Additionally, Chambers claimed that her termination violated her free speech rights under the First Amendment. A two-member majority (Chairman McPhie and Vice Chairman Rose) rejected all of Chambers’ arguments. Member Sapin would have found that the disclosure to the Washington Post and the disclosure to the congressional staffer regarding the staffing and resource crisis were protected disclosures.

With respect to the call to the congressional staffer complaining about having to pay for a follow-up report, the Board held that was not a protected disclosure because “no information was imparted” to the staffer. Therefore, there was no disclosure. The Board also rejected Chambers’ argument that, in this call, she disclosed a “gross waste of funds.” The Board noted that this expenditure of funds was mandated by the House in the budget process. Consequently, Chambers did not reveal “a more than debatable expenditure significantly out of proportion to the benefit” to be derived.

With respect to the Washington Post interview concerning the cutbacks in USPP Patrols and enforcement of traffic and drug laws (disclosure #2) and the e-mail to a Congressional staff member regarding the staffing and resource crisis at the USPP (disclosure #4), the Board majority held that Chambers’ disclosures were not protected because they merely reflected a disagreement with the policies set by her supervisors. Relying on the Federal Circuit court decision in White v. Dept. of Air Force, 391 F.3d 1377 (Fed. Cir. 2004), the majority held that Chambers was merely complaining about her superiors’ policy decisions about how to utilize USPP staff and resources, which was “debatable among reasonable people.” The majority rejected the argument that Chambers’ disclosure concerned a substantial and specific danger to public safety.

Board member Sapin disagreed with the majority. First, Sapin found that Chambers had, in fact, had a reasonable belief that the reallocation of USPP staff and resources created a substantial and specific danger to public safety which was not widely known, such as declining safety in the parks, an increase in traffic accidents, and smaller public parks being taken over by drug dealers. Second, Sapin disagreed with the majority’s application of White. Sapin argued that White, which holds that policy disagreements with supervisors do not generally rise to the level of protected disclosures, was never meant to apply to a disclosure evidencing a danger to public safety. Rather, Sapin argues that White only applies to allegations of “gross misconduct.” Consequently, Sapin would have held that Chambers’ disclosures #2 and #4 were protected disclosures, and that Chambers had been improperly fired in retaliation for those disclosures.

With respect to the letter to her second-line superior in which Chambers accused her immediate supervisor of unspecified “slander,” (disclosure #3), the Board held that Chambers’ disclosures were nonspecific and that her supervisor had acted in good faith, regardless. Of procedural interest, the administrative judge had refused to consider this disclosure on the grounds that Chambers had not “exhausted her remedies” because this allegation was not included in Chambers’ initial complaint to the Office of Special Counsel (OSC). To the contrary, the Board found that the allegation was properly before the Board because Chambers’ challenged personnel action was a removal, which is directly appealable to the Board without the optional step of first complaining to the OSC.

All three Board members rejected Chambers’ First Amendment claim. The Board noted that since Chambers’ termination, the U.S. Supreme Court issued its decision in Garcetti v. Caballos, 126 S. Ct. 1951 (2006) in which the high court held that “when public employees make statements pursuant to their official duties, the employees are not speaking as citizens for First Amendment purposes.” The Board sustained its administrative judge’s finding that Chambers’ comments were made in the course of her official business, and therefore not entitled to First Amendment protection.

Given the split in the Board, an appeal to the U.S. Court of Appeals for the Federal Circuit is certainly possible. It is also likely that the losing party will file a petition with the U.S. Supreme Court, given the important legal issues in dispute.

This information is provided by the attorneys at Passman & Kaplan, P.C., a law firm dedicated to the representation of federal employees worldwide. For more information on Passman & Kaplan, P.C., go to http://www.passmanandkaplan.com.

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