Personal complaints about how an employee was treated by the agency cannot not qualify as “nonfrivolous” disclosures of an abuse of authority. Image: Burdun Iliya/Shutterstock.com
By: FEDweek StaffThe MSPB has clarified its position regarding whether a disclosure of “abuse of authority” qualifies for whistleblower protection, saying that “personal complaints or grievances” about how the agency treated an employee are not necessarily automatically excluded.
In Case No. 2024 MSPB 13, a hearing officer had dismissed a whistleblower retaliation complaint for lack of jurisdiction. That hearing officer held that while the employee had complied with procedures requiring that such a complaint be brought first before the Office of Special Counsel before going to the MSPB, she had not met a standard for showing she had engaged in a “protected activity” under whistleblower law.
Among those activities is a disclosure of “abuse of authority” by an agency official, which the MSPB has defined as “arbitrary or capricious exercise of power by a federal official or employee that adversely affects the rights of any person or that results in personal gain or advantage to the federal official, employee, or some preferred other persons.”
The hearing officer, citing a prior MSPB case, held that personal complaints about how an employee was treated by the agency cannot not qualify as “nonfrivolous” disclosures of an abuse of authority. But the three-member board on appeal said that its precedent should not be interpreted as a blanket exclusion and said that any prior cases that relied on such an interpretation are no longer valid.
“There are no exceptions in the applicable statute for disclosures of abuses of authority that are personal complaints or grievances about treatment by an agency, nor does the Board’s definition include such an exception. This is consistent with the principle that the definition of “abuse of authority” does not contain a de minimis standard or threshold, unlike disclosures involving the other types of wrongdoing” under whistleblower law, it said.
It said that such complaints are to be assessed to determine whether they meet the definition, and that the hearing officer erred by not doing so. However, the board agreed with the outcome, holding that the employee did not show that the complaint met that definition.
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