WASHINGTON, August 290, 2017 – People always say that we need to do more to protect whistleblowers from retaliation but the laws which protect whistleblowers from retaliation are toothless.
For this reason, I have come up with the whistleblower RICO, a law which will impose criminal penalties and jail time for anyone who engages against a federally recognized whistleblower in a campaign of retaliation.
What is RICO?
RICO stands for Racketeer Influenced Corrupt Organizations Act. It was originally designed to go after the Mafia but has evolved as an effective tool against any criminal enterprise.
RICO effectively makes someone who is a part of a criminal enterprise responsible for acts in furtherance of that criminal enterprise. No longer could mob bosses claim to have no knowledge of murders committed by their underlings.
RICO also creates enhanced sentencing for those convicted under its terms. So if someone is convicted of three RICO counts, with sentences of 1,2 and 3 years, rather than rolling them into one and serving three years the individual serves six years.
RICO works in that first the prosecution must prove that a criminal enterprise- as an example a Mafia family or a gang like MS-13- exists, that the defendant/s are part of this criminal enterprise and that they committed at least two predicate acts in furtherance of this criminal enterprise.
The last part is critical. If someone steals a car that is one thing. If someone is a part of a car theft ring that is RICO.
The predicate acts are things like fraud, forgery, racketeering, etc. All of these things are already crimes but they take on much greater sentencing guidelines when they are included in a RICO indictment.
How would Whistleblower RICO work?
Whistleblower RICO would only apply to federally recognized whistleblowers; if it passed and was effective other similar laws could be passed to protect municipal, corporate and other whistleblowers.
To be a federally recognized federal whistleblower one needs to take allegations of fraud, waste, and abuse to a recognized federal agency. This includes Office of Inspector General, Office of Special Counsel, their Congressman, their Senator, Occupational Safety and Health Administration (OSHA), etc.
Since all of these agencies have appropriate forms to fill out for whistleblowers proving this is easy.
Second, that which the whistleblower blew the whistle on would need to be proven. Proof should be broadly defined and thus the right prosecutor and the right jury would need to come to an understanding and this would minimize the risk of corrupting the law.
Third, any individual who is charged under whistleblower RICO would need to commit at least two predicate acts of whistleblower retaliation. The predicate acts would include all the predicate acts of RICO but also things like wrongful termination, isolation, wrongfully passing over for promotion, and other acts of common whistleblower retaliation.
Once again, these acts must be proven to be specifically as retaliatory for whistleblowing. This will also be broadly defined so that prosecutors would need to make their case to the juries and each jury would need to decide if it was proven beyond a reasonable doubt that the predicate act was done to retaliate against the whistleblower.
As with RICO whistleblower RICO requires a minimum of two predicate acts. So, this would minimize the abuse of the law because it is exponentially harder to target someone and falsely claim they are retaliating if you have to prove the retaliation of two acts. Also as with RICO, the jail time will add up on top of each other rather than rolled into one.
This law is common sense and I believe the punishment does fit the crime. If someone came into your home and stole $50,000 worth of your property no one would doubt this is a crime. So, why is it not a crime when someone steals your job in an act of whistleblower retaliation.
In July, Altoona VA Medical Center whistleblower James DeNofrio had his Merit Systems Protection Board hearing in which he alleged he was passed over for jobs, isolated at work, and had his medical records illegally accessed.
To understand whistleblower RICO simply imagine if his hearing was not an MSPB hearing but a criminal trial with a federal prosecutor in a federal court. Imagine if rather than asking for money from an MSPB judge, a federal prosecutor was asking for jail time from defendants for the same acts.
DeNofrio accused top level managers at his hospital of engaging in a retaliatory campaign. That should be criminal and it should be punishable by jail time and that’s what whistleblower RICO would do.