Chapter 6. Whistleblower Protection and the Challenge to Public Employment Law

The Civil Service Reform Act of 1978 (‘Civil Service Reform Act’) was the most extensive reform of the federal public service since the enactment of the Civil Service Act of 1883. Like the 1883 Act, the Civil Service Reform Act occurred in the shadow of national turmoil and a constitutional crisis. The violations of constitutional and civil liberties, the abuses of governmental power which forced the resignation, under threat of impeachment, of President Richard M Nixon in the view of some established a blueprint for executive tyranny. That blueprint relied heavily upon control of the public service and use of that control to evade legal and ethical restraints on executive power. That evasion permitted acts such as the ordering of illegal wiretaps, the improper award of grants and contracts, and the reduction of health and safety standards.^[18] Particularly, loyalty to the president’s ‘team’ replaced loyalty to agency, to law or to the public.^[19]

The Vietnam War, which divided the American public, often along generational lines, legitimated dissent. This dissent included the release of the Pentagon Papers by whistleblower Daniel Ellsburg. Those confidential government documents that belied the government’s own justifications for the war were published by the New York Times.^[20] President Nixon’s use of persons with connections to the Central Intelligence Agency to break into the Democratic National Committee’s headquarters in the Watergate apartment complex and other violations of civil liberties, particularly the burglary of the office of Daniel Ellsburg’s psychiatrist, suggested the importance of the First Amendment and the role of free speech and expression in supporting democratic accountability. Ironically, the Nixon cover-up of the Watergate break-in was motivated in part by the fear that exposure of that operation would lead to the discovery of Nixon’s role in the Ellsburg burglary and other violations of civil liberties.

The Civil Service Reform Act pursued two, sometimes inconsistent, goals. The Act sought to make the public service more efficient by increasing the power of government managers to deal with poor performers, creating merit pay provisions, increasing the influence of political appointees over high ranking public employees, and regularising federal sector labor relations. Given the Nixon resignation and the national trauma surrounding the Vietnam War, the legislation also sought to protect federal employees from the abuse of the personnel authority, including that newly granted.

An important and revolutionary provision sheltered ‘whistleblowers’, employees who disclosed information that they reasonably believed evidenced a violation of law, rule, or regulation, a gross waste of funds, an abuse of authority or a specific and substantial danger to public health or safety.^[21] The Act created an Office of Special Counsel to investigate violations of these protections, to represent whistleblowers, to examine allegations of misconduct, and to advocate for whistleblower protection.^[22] Whistleblower claims could be pursued before a type of administrative court, the United States Merit Systems Protection Board, either as a defence to an appealable personnel action or in an action brought on behalf of the whistleblower by the Office of Special Counsel.^[23]

The provisions pursuing the first goal of the Act assumed that employees are guided by command and motivated by fear.^[24] The provisions implementing the second goal of the Act, including whistleblower protection, reflect a view that employees are also motivated by ideals and a desire to serve the public.^[25]

These protections for whistleblowers can be seen as implementing principles already found in public employment law. For example, discipline of public employees rests on a concept of personal responsibility and accountability. Public employees are personally responsible for their misconduct or their failure to perform. Their conduct is evaluated by others and sanctions are applied based upon that evaluation. Depending upon the character of the position held, such an evaluation may be subject to judicial review or to independent adjudication.

Whistleblower protection can also be seen as departing substantially from existing provisions in public employment law. The protection of whistleblowers permits individual employees to call to account senior officials within a department or agency. The disclosure of information about misconduct or nonfeasance of others higher in the chain of command makes it more likely that the concepts of individual responsibility and accountability will be applied to all.

To the extent that whistleblower protection makes agency managers who retaliate against whistleblowers personally responsible for that retaliation through administrative discipline or through civil or criminal action, it radically alters the scope of persons within an agency to whom the traditional concepts of personal responsibility will apply. Indeed, the whistleblower provision of the Civil Service Reform Act permits the Office of Special Counsel to commence disciplinary actions against retaliating officials before the Merit Systems Protection Board.^[26] This authority of the Special Counsel is one of the few instances in federal law that allows disciplinary actions to be commenced against high-level government officials by persons outside of the chain of command.^[27] The whistleblower provision of the Civil Service Reform Act can also be seen as implementing existing notions of employee loyalty. Although whistleblowing can appear to those superiors within an agency whose conduct is challenged as an act of disloyalty, federal employee whistleblowers had previously relied on the Code of Ethics for Government Service, a resolution passed by the United States Congress, as grounds for their disclosures. Among other provisions that code provided: ‘Any person in government service should:

This code was striking for the breadth of its definition of loyalty and for its imposition of an ethical obligation to expose misconduct.

This code, however, was hortatory. It failed to provide a basis in federal public employment for the protection of whistleblowers. The whistleblower provision was revolutionary because it provided legal protection for conduct that had previously been supported by mere admonitions. It permitted employees, quite properly, to expose the misconduct or nonfeasance of their superiors and to disclose information embarrassing or perhaps even harmful to the short-term interests of the agency for which they worked. By implication, it established, as did the code, a loyalty beyond persons, party or government department. That loyalty may be more circumscribed than loyalty to the highest moral principles or to the country, but remains a loyalty stretching far beyond that to an employee’s immediate superiors and particular employer. An examination of protected disclosures suggests the character of this broader loyalty.

The protection of disclosures regarding the violation of law, rule or regulation describes a loyalty to the law, to the standards established by statute or by agency rule or other norms articulated and disseminated by a government agency. The rule of law, the concept that governmental power is limited by legal standards adopted either by Congress or by the Executive itself, is a premise underlying any democratic government seeking to protect the private sphere from improper interference by the government. Laws are approved by Congress and represent the articulation of standards by a democratically accountable body. Even agency standards rest upon the agency’s perceptions of its legal powers deriving from statute or from the constitution. Because of its central place in the preservation of democratic government, loyalty to the rule of law encompasses a loyalty to the political and legal system which public employees ultimately serve. Because the legitimacy of a democratic government rests upon its authority rather than power alone, the government has an interest in ensuring that its agents act lawfully. Moreover, the specific agency for which the employee works also shares this interest in adherence to the law. Disclosures of abuses of authority address values likewise incorporated into the rule of law.^[29]

Disclosures regarding a gross waste of funds acknowledge the interests of the government and taxpayers in the efficient use of resources in the implementation of government programs. The particular government program or agency also has an interest in the efficient use of those monies given it. Again, the loyalty implied by the protection of these disclosures encompasses a whistleblower’s immediate employer but extends well beyond that employer.

In the sense that these disclosures protect the interests of the agencies, whistleblowers may be the most loyal employees even if loyalty focuses on the obligations of an employee to his or her employer. Whistleblowers are able to make this argument even in the narrow context of loyalty to the employer, because the Act implies a definition of loyalty to an organisation that extends beyond the interests of the managers who control that organisation at a particular time. Whistleblower protection separates loyalty to one’s superiors from loyalty to one’s employer. This separation, as does whistleblowing generally, challenges hierarchical command and gives to individual employees a role in the administration of government not previously countenanced.

Finally, disclosures regarding specific and substantial dangers to public health and safety concern the interests of the public generally. The employee loyalty implied by protection of such disclosures seems less clearly to encompass the employing agency or the government. Although government and individual agencies, particularly if they are charged with preserving health and safety, have an interest in the well being of the public, they do not implicate basic agency interests in legality or in efficiency.

There are perhaps reasons that explain this difference. Health and safety considerations are unique; for, injury to the person can never be fully compensated. Although we place a value on life and limb, the rationale for the disclosure of such risks, if they are specific and substantial, seems particularly strong. At the very least, such disclosures give responsible authorities and perhaps the public an ability to respond to them. Because of the strength of this interest, the Act protects these disclosures even if the risks do not flow from the violation of law, rule or regulation or the abuse of authority.

The whistleblower provision replaced a hortatory and abstract definition of employee loyalty with a practical and concrete one of legal effect. These changes in the concept of employee loyalty arise from whistleblower protection, but they can reverberate throughout public employment law.

These disclosures concern the activities of government.^[30] Because they do so, protection of those employees who make these disclosures binds whistleblower protection in another way to the concept of democratic accountability. The ability of citizens to change government conduct, to require the redress of specific actions, to demand modifications in the powers or scope of government programs, or to insist on punishment or legal redress rely on the rights of freedom of expression, including the right of free speech and association. These rights are less meaningful without access to information about actions and procedures of government. Whistleblowers are an important source for such information.

This relationship of access to information to democratic accountability explains why whistleblower provisions are often connected to freedom of information and other open government laws. The passage of the federal Freedom of Information Act ^[31] in 1966 allowed whistleblowers to argue they simply provided the types of information to which the public would be entitled under a freedom of information law. One of the first state whistleblower laws was linked to the state’s freedom of information law,^[32] and the first attempt to enact whistleblower protection for federal employees likewise tied that protection to the federal Freedom of Information Act of 1966.^[33] In a sense, both freedom of information and whistleblower laws statutorily empower the First Amendment.

The prohibitions against disclosure are limited. A disclosure is not protected if the disclosure is ‘specifically prohibited by law’ or if it is ‘specifically required by an Executive Order to be kept secret in the interest of national defence or the conduct of foreign affairs’.^[34] These prohibitions restrict the use of agency rules and regulations to limit scope of disclosure.

In enacting the whistleblower provision of the Civil Service Reform Act, Congress considered the First Amendment.^[35] The whistleblower provision protected disclosures not protected, or ambiguously protected, under First Amendment law at the time.^[36] For our purposes, one of the most striking distinctions was the protection under the statute of disclosures that might have been considered disruptive and not entitled to protection under the First Amendment. Congress legislated against weaknesses in the First Amendment and adopted a different approach to protection. The protection of employees who disclosed misconduct regarding their immediate superiors, with the attendant disruption, emphasises again how the enactment rejected a prevailing tenet in public employment law — the importance of hierarchical command. The Act and similar statutes create rights to freedom of expression not previously granted under public employment or constitutional law.

Moreover, when a legislative body weighs the disruption resulting from a whistleblower’s disclosures and protects those disclosures, it reverses a judicial tendency to defer to a narrowly defined set of governmental interests focusing on efficiency and the chain of command. The judgment of a legislative body that the value of disclosures outweigh any resulting disruption enables the courts to act more boldly in applying constitutional restrictions. In another sense, such a provision is a redefinition of the character of public employment, which courts might appropriately incorporate into judicial development of that body of law.

A brief description of some of the principal provisions of the whistleblower provision of the Civil Service Reform Act of 1978 supports the conclusion that the provision radically modified principal tenets of public employment law. Other parts of this provision buttress the view that whistleblower protection altered the scope of personal responsibility within government agencies, changed the character of employee loyalty, encouraged employee participation outside the chain of command, and rejected a view of government efficiency linked to preservation of the hierarchical control.

Of the important parts of the provision not previously discussed, three are particularly relevant to the themes already developed:

The first of these protects an employee who has a ‘reasonable belief’ that a disclosure evidences one of the protected categories. The rejection of a more demanding standard, such as the requirement that the disclosure ‘in fact’ shows that there has been a violation of law, rule or regulation, a gross waste of funds, an abuse of authority, or specific and substantial danger to public health and safety exemplifies Congressional judgments about the value of these disclosures compared to the risk of disruption. That judgment relies on broad conceptions of employee loyalty and the importance of access to information to democratic accountability. The reasonable belief standard should encourage more disclosures, including some where there has in fact been no wrongdoing.

The language and legislative history of the whistleblower provision approves disclosures within government agencies and authorises them outside of the government as well.^[40] Subsequently, Congress has made it clear that disclosures to the press are protected.^[41] The protection of internal disclosures seeks to change the character of the workplace, making it more open to employee criticisms and participation. The protection of disclosures outside of government emphasises that the preservation of agency procedures and structures, including those regarding employee disclosures, do not justify limitations on the prerogatives of employees.

One of the most contentious provisions requires the Special Counsel to forward to an agency head for investigation and response those allegations which the Special Counsel believes demonstrate a substantial likelihood of agency misconduct.^[42] The provision was contentious because it was a particularly clear embodiment of the tenet that an individual employee could bring the highest-ranking agency officials to account. Such accountability illustrates the practical expansion of the concepts of personal responsibility ingrained in whistleblower protection.

Subsequent changes in the whistleblower provision of the Civil Service Reform Act, particularly those contained in the Whistleblower Protection Act of 1989, addressed weaknesses in the enforcement structure, including the Office of Special Counsel, shortcomings in the drafting of the provision, and restrictive judicial interpretations.^[43] A crucial change made it easier for a whistleblower to prove retaliation by stating that in order to meet the burden of demonstrating retaliation a whistleblower need only prove by a preponderance of the evidence the protected disclosure was a ‘contributing factor’ to the challenged agency action against the whistleblower.^[44] If the whistleblower carried this burden, the agency must prove by clear and convincing evidence that it would have taken the same action absent the protected disclosure.^[45]

For our purposes, the most important change was the recognition of the right of federal employees to disobey illegal orders.^[46] Adoption of the right to disobey affirms many of the principles of the original Act that transform public employment law. The right to disobey illegal orders embodies the same concepts of employee loyalty incorporated in protection of disclosures of violations of law, rule or regulation. Those concepts of loyalty are broad ones encompassing more than loyalty to superiors or to a government agency but also a loyalty to the government and to the system of democratic government. Acceptance of the right to disobey contains similar judgments regarding the weight to be given to legality as opposed to the government’s interest in preventing disruption of the workplace. Acceptance approves a concept of individual responsibility that allows an individual employee to act upon his or her own judgment about the legality of an order. Acceptance confirms that disobedience like criticism is a form of employee dissent appropriately protected not only because it preserves an employee’s right of free expression but also because it vindicates the concept of democratic accountability.

Following the Civil Service Reform Act of 1978, several states enacted laws protecting whistleblowers in public employment. An examination of these laws of general application illustrates the themes already developed and demonstrates how whistleblower protection has altered not only federal but also state public employment law. This examination also allows an assessment of how much the changes in public employment law follow the extensive protections provided in the federal provisions and how much the changes result simply from the acceptance of the concept of ‘whistleblowing’. Such an assessment provides a basis for a discussion of whistleblower provisions applicable to public employees in other countries.

After 1978, statutes protecting whistleblowers in public employment swept the United States. At least forty-two states now have such statutes of general application to public sector employees.^[47] In addition, several states have statutes applicable to specific areas of concern, such as health care, abuse of children and the elderly, foster homes, motor vehicle emissions, workers compensation and public utilities.^[48] These statutes of general application vary in scope and in the character of protections provided but all accept whistleblowing by public employees.

A review of how these statutes resolve issues considered in the federal whistleblower law permits an appraisal of their implications for public employment law. The great majority of the state statutes protect disclosures regarding violations of law.^[49] Most of the states that protect only one type of disclosure limit those disclosures to violations of law.^[50] The substantial majority of these statutes protect disclosures regarding violations of federal as well as state law.^[51]

No other category of protected disclosures is as common as the one regarding violations of law. The other most frequently protected disclosures regard, in order of frequency, governmental waste, substantial and specific dangers to public health or safety, and abuse of authority.^[52] Another less commonly protected disclosure concerns mismanagement.

These categories of protected disclosures follow closely those articulated in the federal whistleblower provision. To the extent these categories track federal ones, the implications of the protection of these disclosures for conceptions of employee loyalty, described in regard to the federal provision, apply to these state laws. Indeed, this similarity in protected disclosures suggests that the federal law provided the basic model to which states made particular alterations. Such a reliance on the federal law, while probable, is not necessary to conclusions about the implications of these state provisions. This similarity, however, should not obscure two important differences relevant to the character of employee loyalty. First, the emphasis in the state statutes on violations of law occurs at the expense of the other disclosures which are less frequently included. Second, disclosures regarding violations of law encompass not only violations of state law but also violations of the law of another sovereign, the government of the United States.

The implications of whistleblower protection for the character of employee loyalty are not significantly altered by exclusion from the protection of some state statutes of all of the categories of disclosures except the violation of law. The majority of statutes contain most or all of the categories contained in the federal provision. Thus, the general implications of these whistleblower statutes for the field of public employment remain. Even if the analysis focuses on those states which protect only disclosures regarding violations of law, the implications of the character of employee loyalty in public employment law are still quite similar. The effect of the protection of disclosures of violations of law in federal law included above demonstrates that protection of that disclosure alone perceives an employee stretching beyond that to the employee’s superiors or the agency in which he or she works. Rather, it describes a view of employee loyalty that includes the government generally, the system of democratic governance and those persons affected by such violations. Protection of such disclosures also sharply redefines the interests of the employee’s own agency, separating loyalty to individual managers from loyalty to the agency. The analysis also asserted that same implications flow from protection of disclosures regarding an abuse of authority.

Although disclosures of waste or mismanagement concern interests in efficiency, the implications for conceptions of employee loyalty do not differ significantly from those applicable to the disclosures regarding violations of the law. Protection of these disclosures likewise suggests obligations beyond one’s immediate superiors and a loyalty to others.

The effect of protecting disclosures regarding specific and substantial dangers to public health or safety does indicate that the exclusion of this protected disclosure might be relevant if we focus on a specific jurisdiction which does not protect such a disclosure. First, as noted in the discussion of the federal whistleblower provision, disclosures regarding specific and substantial dangers to public health and safety may not encompass the agency’s own interests in the same way as the other protected disclosures. Arguably, the interest of a generic federal agency in the health or safety of the public does not implicate basic agency interests in legality and efficiency. Those agencies, however, with responsibilities for protecting public health and safety have a strong interest in ensuring that their mission is effectively accomplished. In this sense, the interests of some agencies are involved and like the other disclosures, this one includes a duty of loyalty to the agency.

Secondly, with those agencies having responsibilities for protecting public health and safety, these disclosures involve individual employees more directly in the administration of the agency’s programs and the decisions applicable to them. This proposition relies on the premise that all agencies have a general concern for legality and efficiency in their operations and, while whistleblower disclosures regarding illegality or waste certainly become entangled with specific programs and policies (indeed, such entanglement may be the motivation for the disclosures), these disclosures are different in character and effect.

If this premise is accepted, it can be argued that the protected disclosures are less likely to be limited to activities in the workplace. A disclosure is more likely to concern the conduct of third parties that pose such a risk to public health or safety and such disclosures are more likely to enmesh employees in agency programs and policy making. For example, an employee identifies a private activity, involving the disposal of toxic chemicals in the course of mining, that the employee reasonably believes creates a specific and substantial danger to public health. The agency arguably has jurisdiction to regulate this conduct but is not legally required to do so. The agency is quite efficient in carrying out the regulatory responsibilities it has assumed. In effect, the employee’s disclosure of a specific and substantial danger to public health challenges the agency’s regulatory priorities.

If this line of argument is convincing, this type of protected disclosure gives individual employees an ability to participate in the development of regulatory policy, that may or may not occur in practice, beyond that approved in public employment law. Thus, the exclusion of this protected disclosure may have an impact on the principles of public employment in a particular jurisdiction. Perhaps the encouragement of employee participation lurking in the protection of this type of disclosure explains the requirement that the danger to public health or safety be ‘specific and substantial’.

Providing protection solely of disclosures regarding violations of law can more generally be seen as an expression of hesitancy about encouraging independent judgment by individual employees concerning agency policy and practices. Disclosures regarding violations of law surely require judgment by an employee that addresses whether particular conduct reasonably can be seen as breaking established and articulated standards contained in laws, rules or regulations. The other types of disclosures draw upon less clear and established standards. For example, more employee discretion and analysis is involved in determining whether particular expenditures are a waste of funds or official action is mismanagement. Therefore, protection of these other types of disclosures may endorse more extensive judgments by employees regarding the propriety of the administration of an agency’s programs.

A second important difference between these state statutes and the federal provision relevant to the character of employee loyalty pertains to the protection of disclosures of violations of federal law found in many state statutes. Certainly, this inclusion of violations of federal law reflects a judgment that the states’ interests in the enforcement of these federal laws are viewed as significant enough to justify the extension of protection and the attendant costs. Conceivably, states could have a number of reasons for such an inclusion, but for our purposes, the more relevant question concerns implications for the character of employee loyalty of this protection of disclosures regarding violations of federal law.

The inclusion affirms the importance of legality in a democratic society. This affirmation stresses the larger obligation of every public employee to the concept of legality and to our political and legal system. That obligation overrides or replaces more narrow views of employee loyalty resting on the approval of supervisors, the convenience of agencies, or even the interests of state government. As a practical matter, the violators of federal law most likely identified by state employees are state officials or state agencies. At a time when many functions once performed by the federal government are ‘devolved’ to the states, this inclusion is also a reminder of the loyalty that state employees owe to the national government.

In contrast to the federal provisions which clearly protect disclosures to the press and to the public, ‘the state statutes, with few exceptions, protect disclosures only to government officials and to public bodies’.^[53] Although the overwhelming majority of the statutes broadly define public bodies ‘often including state and local agencies and their employees, officials within the executive, judicial, and legislative branches, and federal agencies and officials’,^[54] this limitation does merit discussion. Many of the statutes do not specifically require that a public body have authority to regulate the conduct identified in a disclosure. A reasonable interpretation, however, would incorporate such a requirement. Even if this requirement is incorporated in the definition of a government body, a disclosure could still be protected when made to more than one agency.

In addition to the practical significance of this restriction on those persons and organisations to whom disclosures could be made, the limitation may alter the effect of a whistleblower provision on public employment law. Statutes which contain this restriction still reject the primacy of the agency structure of command. Many of these public bodies are separate from the public employer and some, at least, may not even be part of state government. Employees are permitted to make their own judgments about the conduct of agency officials and act in a way that may give those judgments legal effect. In this regard, the implications for whistleblower protection on public employment law do not seem altered.

This restriction on those to whom disclosures may be made, however, can alter the implications for public employment law in another way. To the extent that the close connection between whistleblower protection and public access to information links whistleblower protection to free expression and democratic accountability, the failure to protect public disclosures weakens this linkage. Arguably, such a restriction reflects different judgments about the weight given to the workplace disruptions likely caused by public exposures of official misconduct. In this sense, the statutes can be read, at least in part, as supporting a prevailing tenet in public employment law — the importance of workplace harmony sustaining hierarchical command.

Given the number of reasons for protecting internal disclosures, surprisingly few of the whistleblower statutes that are applicable to the public sector deal with this issue.^[55] Of the statutes which address the issue, a good majority protect internal disclosures but require some type of internal disclosure before disclosures can be made to someone other than the employer.^[56] Some of these statutes, however, incorporate exceptions that permit an employee to forego internal disclosures in certain circumstances often involving concern with delay, emergencies, reasons to believe that no action will be taken, and the fear of reprisal.^[57]

At first glance, the requirement for internal disclosure stresses a narrow definition of employee loyalty. Several aspects of these statutes, however, caution against a characterisation of these statutes as a return to a view of employee loyalty traditionally contained in public employment law. Most of the statutes only require disclosure to the public employer not to specific individuals within an agency.^[58] The authorisation to report to persons outside of the employee’s chain of command thus can be seen as defining loyalty in terms of the public employer rather than the specific managers to whom an employee is responsible. Moreover, several of the statutes contain exceptions which permit an employee to forego the requirement. Finally, an employee who made an internal disclosure or who, under some provisions, has given the agency a reasonable time to address the allegations, may disclose them outside the agency. Although the internal disclosure has practical effects on the likelihood of disclosures, the requirement does not necessarily reject broader conceptions of employee loyalty.

Like the federal law, most of the state statutes only require a reasonable belief that the disclosures fall within those protected.^[59] A few statutes only require that an employee act in good faith;^[60] two statutes seem to require that a disclosure be true in order to be protected.^[61] As noted, the reasonable belief standard relies on broad concepts of employee loyalty and the importance of access to information to democratic accountability by encouraging some disclosures which in fact are not accurate. The good faith standard should encourage a more substantial number of disclosures not in fact true. The true-in-fact standard will encourage the fewest of such unsustainable allegations but may also discourage the disclosure of many valid ones as well. The state provisions demonstrate that the state statutes overwhelmingly adopt the same expansive views of employee loyalty and the importance of public access to information contained in the federal law. Even the two states that adopt the most restrictive standard for disclosure accept that employees should act to expose misconduct if they are convinced that it has occurred.

The state laws, however, are more likely than the federal law to require a substantial connection between the protected disclosure and the challenged action taken against the whistleblower.^[62] For example, whistleblowers may be required to prove by a preponderance of the evidence that the protected disclosure played a more substantial role in the challenged action.

Like the federal law, a substantial number of state whistleblower statutes include protections for employees who refuse to obey illegal orders.^[63] These provisions vindicate the interests discussed previously with the federal statute and suggest the same types of revisions in public employment law created by protection of whistleblowers. The standard for disobedience is unclear under the federal statute.^[64] The majority of the state laws adopt an illegal in fact standard of the right to disobey, but a significant portion of these laws embrace a reasonable belief standard.^[65] Like the federal provision, these state laws have altered the landscape of public employment law.

The federal whistleblower law and the state statutes as a group contain many provisions that support and implement whistleblower protection. The discussion above demonstrates how these aspects of the whistleblower laws challenge public employment law by introducing principles and concepts that link whistleblower protection to innovative concepts of employee loyalty, to access to information and democratic accountability, and to free expression. These principles challenge in a number of ways a limited view of efficiency based on hierarchical command. It is useful to separate, however, the impact on public employment law of these relatively liberal statutes implementing whistleblower protection from the implications of the adoption of more restrictive whistleblower laws.

One way of accomplishing such a separation considers the implications for public employment law under a restrictive statute. The provision used for this purpose does not reproduce the terms of any statute thus far discussed, but rests on a hypothetical law that collects restrictive provisions from several state laws. In essence, this provision imagines the most limited law that still adopts, and presumably approves, the concept of whistleblower protection. That hypothetical law resolves the issues already discussed in the following manner:

From the discussion of the federal law and the state provisions, each of these resolutions of particular issues, as compared to those generally made in these provisions, are more supportive of traditional views of public employment and less accepting of the concepts behind whistleblower protection which challenge those views. However, that same discussion demonstrates that recognition of the legitimacy of whistleblower accepts concepts and values inconsistent with many of the assumptions regarding public employment on which legal regulation has relied. Of course, it is possible to argue that the combination of these choices in a single law renders application of the underlying principles so unlikely as to make the law a nullity. The ineffectiveness of the law can generate cynicism that undermines these underlying principles.

Despite this argument, the recognition of the legitimacy of whistleblowing is a powerful change in the view of public employment upon which legal regulation relies. Bureaucracies are not rigid and static, but dynamic. The behavior of employees is predicated in large measure by the perceptions of the types of conduct expected of them. Personal responsibility offers a fundamental way of controlling human conduct and behavior and provides an important principle by which large institutions may be limited by law. Articulations of employee loyalty which emphasise loyalty beyond the personal or institutional, support expectations of greater involvement by individual employees in protecting the public interest. Whistleblower protection expresses these values and brings them to bear on employee conduct. Whistleblower protection not only changes public employment law, but also alters the culture and character of public employment. Whistleblower protection, even in the most restrictive statute, can transform the character of the workplace.