As you have no doubt heard, last week two Federal Aviation Administration (FAA) employees told reporters that Southwest Airlines had engaged in an extended campaign to avoid mandatory safety inspections and had attempted to have FAA inspectors who discovered the violations removed. This is just another shocking story that illustrates the need for federal employee whistleblower protections.

Last week, National Public Radio reported that, in March of 2007, after documenting years of inspection failures by Southwest Airlines, FAA inspector Bobby Boutris discovered that Southwest Airlines had failed to do mandatory safety inspections for cracks around the windows of their 737s.  These inspections are very important because, if such cracks develop, they could cause the plane to explosively decompress during flight.  This happened on an Aloha Airlines 737 flight in 1988, where cracks caused an 18 foot section of the plane’s roof to blow out and sucked a flight attendant out of the plane to her death.  

Unfortunately, despite discovering serious violations that posed a significant risk to the safety of Southwest’s passengers, Boutris’ story took a turn depressingly familiar to whistleblowers.  Instead of taking action, Boutris’ supervisor Douglas Gawadzinski, who was close friends with Southwest’s manager for regulatory compliance (himself a former FAA inspector) chose to ignore Boutris’ reports.  When Boutris wanted to send Southwest a letter of inspection, Gawadzinski refused.  When Boutris pressed harder, Gawadzinski first simply blocked him and then removed him from the inspection and told him that “his career was in jeopardy” because of “undisclosed complaints from anonymous Southwest officials.” 

The second FAA whistleblower, Douglas Peters, took over the inspection after Boutris’ removal.  However, after he confirmed Boutris’ findings, he too met with resistance from his superiors and the FAA took no action to correct Southwest’s dangerous inspection failures.

This case highlights the critical importance of passing H.R. 985, the Whistleblower Protection Enhancement Act of 2007.  Among its other substantial improvements to current whistleblower protections, this proposed law specifically protects statements that a federal employee makes in the course of performing his “official duties.”  This is necessary because, under current law, public employees like Boutris and Peters, who discover and report wrongdoing while on the job, have virtually no protection against reprisal from hostile superiors.

H.R. 985 has been approved by the House of Representatives, and similar, yet inferior, legislation (S.274) has passed the Senate. These bills are now in conference committee. President Bush has vowed to veto H.R. 985.

The courts have long held that the current Whistleblower Protection Act does not prevent public employers from retaliating against employees who, like Boutris and Peters, make unwelcome reports of wrongdoing as part of their “official duties.”  For a time, these “official duty” whistleblowers could still seek protection under the First Amendment, but in 2006 the Supreme Court held that the First Amendment did not protect statements made by public employees in the course of performing their “official duties.”  This effectively gave federal employers carte blanche to retaliate however they pleased against these conscientious public servants, as Bobby Boutris discovered when his supervisor relieved him of his authority to investigate Southwest and threatened his career.  Had the FAA fired Boutris or Peters for doing their jobs and reporting Southwest’s violations, there would be nothing they could do about it. 

Stephen M. Kohn, president of the National Whistleblower Center, issued the following statements regarding the FAA revelations:

“In light of these events it is more important than ever to make sure that public employees like Bobby Boutris and Douglas Peters are able to report the wrongdoing that they discover without fear of retaliation from their superiors.  Public employees, especially federal regulators and inspectors, are often in the best position to not only discover dangers to the public safety, but also to do something about them.  That hostile supervisors can freely retaliate against these dedicated public servants for doing their jobs and working towards the public good is completely intolerable and threatens the safety of every American.  Congress must take action to protect these conscientious individuals.”