Professionalism/Robert MacLean and Unsecured TSA Communication

Introduction

Robert J. MacLean (born March 8, 1970 in Torrejon Air Base, Spain) is a legally designated protected federal employee whistleblower. During his tenure as a Transportation Security Administration (TSA) air marshal he had three instances of whistleblowing for which he was subsequently fired.

Whistleblowing Instances

DC to Las Vegas: The .357 Incident

Early in MacLean's tenure as an Air Marshal, just three months after the 9/11 terrorist attacks, he found himself in a position that tested his core values. Maclean and a team of special agents were assigned to the DC to Las Vegas flight with two objectives: to watch for threats and to maintain a low profile. His partner failed in these objectives when he left behind his weapon, a loaded .357-caliber semiautomatic pistol, in the lavatory.

Maclean noticed commonton in front of the plane with teenagers who had found the gun in the lavatory. His partner got up, walked over and handled the situation without informing Maclean. "He came back to his seat like everything was OK, so I assumed everything was OK," MacLean said. He and the other special agents only found out later what had occurred. This mishandling of weapon and failure to communicate could have caused a panic throughout the airplane. Or worse someone could have fired the weapon, accidentally or on purpose. Maclean felt that his team had created an unsafe environment for everyone on the flight and failed in their duty.

The air marshal service handbook states that "reckless disregard for the safety of others" is grounds for dismissal.. However, the Air Marshal program did take any action against this agent. In fact, he was promoted to a management role and also served as firearms instructor at the air marshal training center. MacLean went to special agent in charge of his field office to express his outrage for the lack of action. He was told "Everyone makes mistakes" in a in a February 2002 memo that downplayed the significance of this incident.

Robert Maclean represents some of the core values of professionalism. He held himself to a higher standard and conduct than what was required of him by the TSA.

Air Marshal Grounding

While Maclean was serving as an air Marshal in 2003, the TSA sent out unsecured text messages warning of terrorist hijackings. Proceeding this announcement, the TSA then sent out an internal bulletin removing air marshals from long distance flights in order to cut costs. Maclean took issue with this decision, citing national security, and brought his concerns to his supervisor and three different levels of his agency’s inspector general.

After being repeatedly rebuffed, Maclean anonymously went to a reporter for MSNBC, exposing the TSA’s cost-cutting measures. Maclean was quoted, stating that “overnights for all [field offices] were being canceled for an indefinite amount of time”. He also argued that the TSA should have at least kept Air Marshals on high threat flights, such as those flying internationally filled to capacity with aviation fuel. The proceeding MSNBC article caught the nation’s attention enough to receive congressional reaction, resulting in an elimination of air marshal cutbacks.

Air Marshal Dress Code

Later, in 2005, Maclean again took up arms with the TSA, in order to combat a strict dress code policy. This policy mandated that all marshals wear sports coats and dress shirts, making them easier to identify.

John D. Amat, spokesman for the Federal Law Enforcement Officers Association, stated that “If a 12-year-old can pick them out, a trained terrorist has no problem picking them out.”

Maclean went through internal channels in order to fix this issue, but was similarly rebuffed. He decided to interview with NBC Nightly News under the pretense that they would silhouette his figure and mask his voice, however his voice was not masked.

Fallout

Nine months after the NBC Nightly News interview, Internal Affairs investigators discovered Maclean’s involvement through sources that recognized his voice and tipped them off. They confronted him about the interview. When confronted, Maclean was upfront about the not only the interview with NBC Nightly, but also regarding the prior MSNBC interview, stating he went through internal channels first.

MacLean was subsequently fired from his position after receiving various repercussions supposedly unrelated to his whistleblowing. The Bush administration classified the text that he had received as sensitive information and was able to remove MacLean from his position.

After his firing, MacLean was advised by the Government Accountability Project and the Project on Government Oversight to avoid representation from the U.S. Office of Special Counsel, a government organization that is supposed to protect whistleblowers. The organization was under scrutiny for corruption.

Work After Firing

In 2007 MacLean was forced to work in order to stay out of poverty. He started a parking lot cleaning business which failed after the 2008 recession. In 2012 he began working as the general manager of a roofing company in Texas while fighting to claim his status as a whistleblower. During this time MacLean gained 50 pounds.

Court Appearances

Following the advice of the advocacy groups representing him, MacLean took his case to the U.S. Court of Appeals for the 9th Circuit in California. They took two years to hand MacLean's case over to the Merit Systems Protection Board (MPSB), who decides if executive-branch employees should be granted whistleblower status. The MPSB ruled against MacLean on July 25, 2011, stating that:

...Even if the appellant could have established the classic elements of whistleblowing, i.e., that he disclosed a

substantial and specific danger to public safety and that his disclosure was a

contributing factor in his removal, he cannot invoke WPA protection because his disclosure was specifically prohibited by law.

MacLean appealed the MPSB's decision, but was unsuccessful until 2013 when the U.S. Court of Appeals for the Federal Court ruled that MacLeans' disclosure was not specifically prohibited by law. This decision kept MacLean's case alive. In 2014, a Congressional probe found that the agent that classified the documents MacLean had leaked as sensitive retroactively was under “extreme pressure” to keep the documents from the public.

Supreme Court Hearing

In 2015 the Supreme Court ruled on behalf of MacLean, reaffirming the decision of the Court of Appeals for the Federal Court .

The Supreme Court stated that federal law protects a whistleblower as an employee who discloses information exposing illegal activity of any kind. However, there is a small exception in that the disclosure itself must not be specifically prohibited by law. The court aimed to answer the question of whether MacLean's disclosures were specifically prohibited by law. The Supreme Court held that the TSA policy in question did not explicitly prohibit employee disclosures such as MacLean's. Furthermore, the policy was far too general to be applied to MacLean's disclosure. The court held that the policy must be sufficiently specific in identifying and describing actions such as MacLean's to be relevant to the exception in the Whistleblower Protection Act.

This decision allowed MacLean to resume his work as a federal air marshal.

Return and Second Termination

Upon returning to his position, MacLean continued to offer criticism to the agency in the form of subsequent whistleblower reports. MacLean took issue with several policies which he believed to be a danger to public safety. MacLean's actions brought him under intense scrutiny from his employer and coworkers. On March 21st, the TSA fired MacLean, accusing him of improper conduct for accessing inappropriate web content on a government-issue device. The TSA justified the termination with criticism of MacLean's lack of professionalism in his position. The agency cited MacLean's arrogance and pride as a driving factor, causing him to prioritize his own motives and objectives as overriding the requirements of policy and the needs of other people. Moreover, MacLean's coworkers identified him as a constant source of conflict, lacking tact and diplomacy in making several whistleblower allegations. MacLean's attorney, Tom Devine, defended the allegations as factual, calling the second termination a retaliation by the TSA. Devine continued, arguing that all of MacLean's allegations and speech are protected under the Whistleblower Protection Act, which the Department of Homeland Security was defying at every turn.