05/14/2010 -The Department of Homeland Security (DHS) had the right to fire a whistleblower who provided sensitive information to a reporter in 2003, an administrative judge for theMerit Systems Protection Board (MSPB) ruled yesterday.

MSPB administrative judge Franklin M. Kang sided with the Federal Air Marshal Service (FAMS) and DHS, its parent organization, saying that former federal air marshal Robert MacLean should have known the information he disclosed to a reporter in 2003 was Sensitive Security Information (SSI), a special class of information dealing with transportation security. MacLean appealed his termination before Kang in November and hoped to be reinstated or have his termination mitigated to a suspension if he won. 

"In observing the appellant’s testimony at the hearing, I found the appellant to be evasive, nuanced, and inconsistent," Kang wrote of MacLean during a November appeals hearing. The MSPB rules on disputes between federal employees and their agency employers.  (For more information on MacLean's appeals hearing, read "FAM Whistleblower Appeals His Termination; Says He Protected National Security" from Nov. 2009.)

During the summer of 2003, MacLean anonymously contacted MSNBC reporter Brock Meeks to warn him that the FAMS was pulling air marshal coverage on long-distance flights because of expensive hotel bills, days after learning of a possible al Qaeda plot to attack commercial flights that summer. Before making the disclosure, MacLean contacted three different DHS Office of Inspector General (OIG) field offices because he felt FAMS decision unnecessarily put the public at risk and could be illegal but received no support. The resulting media coverage and congressional outrage from the disclosure led the FAMS to cancel its plans to pull air marshals from long distance, high-risk flights. 

Almost three years later, the FAMS fired MacLean for disclosing SSI, after he told investigators that he was the source of the disclosure. DHS said that MacLean's unauthorized disclosure to Meeks created a vulnerability in the aviation sector. MacLean argues that the information he disclosed was not SSI because the information was not marked as such and did not come in on his government-issued and password-protected and encrypted PDA, the device in which all sensitive information was previously sent. Rather the information was sent to his government-issued Nokia cell phone that was not password protected nor encrypted.

Kang didn't buy MacLean's argument and sided with DHS.

"I find that the agency has met its burden of proving by preponderant evidence that information... at issue was SSI," Kang wrote in his 42-page decision. "I further find that the agency has met its burden of proving by preponderant evidence that the information disclosed by the appellant to the reporter on July 29, 2003 was SSI."

The watchdog group Project on Government Oversight posted on its blog yesterday that the decision wasn't surprising considering Kang's record. The group reported thatKang never found in favor of the appellant in 68 cases in fiscal year 2008. 

MacLean's attorney, Tom Devine of the Government Accountability Project, says they will appeal the ruling to the full MSPB.

"The full MSPB has impressive new leadership and this will be a significant test case as to whether the times have changed for whistleblowers,"he told CNN.com. "We'll keep appealing this decision until Mr. MacLean achieves justices, until there are no doors left to pound on in the justice system."

In November, White House nominees for the MSPB—Susan Grundmann, as chairwoman, and Anne Wagner, as vice chairwoman—were confirmed by the Senate. Both are considered labor and whistleblower friendly.

♦ Photo of whistle bystevendepolo/Flickr