Blow the whistle, win some cash?

By Suzanne Kubota
Senior Internet Editor

When a public servant performs “a public service,” is that just part of the job?

That seems to be the question behind a recent lawsuit involving a former senior economist at the Interior Department.

Robert Berman helped the Project on Government Oversight (POGO) understand how oil companies were allegedly short-changing the government. After POGO won a percentage of $440 million returned to the government, the nonprofit group mailed Berman a $383,600 check, explaining that it was a “public service award” for his “decade-long public-spirited work to expose” the wrong doing.


But it’s illegal for federal employees to receive compensation from anyone else for just doing their job, explained Bill Bransford, partner at Shaw, Bransford & Roth.

The Justice Department then charged Berman and POGO for the award.

During the case, the D.C. Circuit Court instructed the jury that if Berman was doing his job then the jury had to rule for the government and that intent didn’t matter. “POGO argued that intent was very important,” Bransford explained. “That in fact, they had to be intending to compensate Mr. Berman for just doing his job and not for, as POGO said, for performing a public service.”

This also meant that the defense couldn’t argue Berman was a whistleblower because intent was not a factor. After all, it wouldn’t matter why Berman did what he did, only that he cashed the check.

Berman and POGO were found guilty.

Now, the D.C. Court of Appeals has thrown out the verdict. Bransford said the Appeals court said the “judge would have to tell the jury that they would have to have intended to violate this law by supplementing Mr. Berman’s salary.”

The case now starts all over again after the three-judge panel reversed and remanded it.

While Bransford said the ruling loosens up whistleblower cases a bit, “Until Congress acts in this area,” he said, “I think you’re still going to see substantial restrictions on those federal employees… receiving something extra for just doing their job, or even extra protection.”