An Open Letter to President Donald Trump and Members of Congress

The undersigned organizations and corporations write to support the completion of the landmark, 13 year legislative effort to restore credible whistleblower rights for government employees that resulted in unanimous passage of the Whistleblower Protection Enhancement Act (WPEA) of 2012. While the law was the fourth unanimous congressional mandate since 1978 for whistleblower rights in principle, the most serious work remains to be finished. That is because the WPEA left the highest stakes issues incomplete, pending further study.

We seek your leadership now to expeditiously finish what Congress started in the Whistleblower Protection Enhancement Act. That means further developing legal rights so they include the critical reforms listed below. Whistleblower protection is a foundation for government accountability, from draining bureaucratic swamps to achieving changes in which the public can believe. It does not matter whether the issue is economic recovery, prescription drug safety, environmental protection, infrastructure spending, national health insurance, or foreign policy. We need conscientious public servants willing and able to call attention to waste, fraud and abuse on behalf of the taxpayers.

Unfortunately, every month that passes has very tangible consequences for federal government
whistleblowers, because none have due process for a credible day in court to enforce their free speech rights. They are limited to administrative hearings at the U.S. Merit Systems Protection Board (MSPB), which does not have judicial independence, is under bipartisan congressional attack, and currently, the full Board does not even have a sufficient quorum to issue rulings. Since FY 2014, the full Board only has ruled three times out of 37 final decisions that an employee’s Whistleblower Protection Act rights were violated, including only one case in 2014 and 2015 combined for illegal whistleblower retaliation in the entire federal government.

The bottom line is clear. The Whistleblower Protection Enhancement Act will continue to be a source of false hopes and cynicism until it has the following additional teeth to enforce its mandate:

  • Grant employees the right to a jury trial in federal court;
  • Give whistleblowers the right to challenge retaliatory investigations;
  • Extend employment anti-retaliation rights to shield against all criminal and civil liability;
  • Extend temporary relief to whistleblowers whenever they prove a prima facie case of retaliation;
  • Make permanent normal access to appeals court for whistleblowers to challenge MSPB decisions;
  • Make permanent the WPEA pilot program for each Office of Inspector General (OIG) to have a whistleblower ombudsman;
  • Make sensitive job designations a personnel action to lock in protection against retaliation;
  • Require accountability through discipline to prevent unjust retaliation on whistleblowers;
  • Fully protect whistleblower disclosures even before an application for federal employment;
  • Shield employees by allowing them to refuse to violate illegal regulations; and
  • Grant the Office of Special Counsel the authority to issue a stay, without MSPB Board approval

These suggestions are the necessary infrastructure so that those who defend the public have a fair chance to defend themselves.

Sincerely,

Posted in MISC Blog, Press release

Congressional Record on Senate Nominations

President Trump has taken action on Senate nominations that directly impact the whistleblower community, including withdrawal of Ms. Lerner’s nomination to be renewed as the Special Counsel. More information can be found here: https://www.congress.gov/congressional-record/2017/2/28/senate-section/article/s1507-8?r=14

Posted in MISC Blog

Whistleblower Protection & the First Amendment

As we begin to reflect on our past campaigns and achievements, we have noticed a common theme–The First Amendment. This is a vital tool for many whistleblowers who have faced, or continue to face, retaliation, harassment and isolation.

This summer, co-founder and legal director of the Government Accountability Project, Tom Devine, participated in the TedxWilmington Salon “Whistleblowers & the First Amendment”. He discussed the critical importance of the first amendment for whistleblowers. Devine also highlights the growing solidarity between whistleblowers and their advocates, and the triumphs won in the last 40 years. For example, Tom won the first U.S. Supreme Court test of the Whistleblower Protection Act last year and has been a leader in the campaigns to pass or defend 33 major national or international whistleblower laws. To hear more, please watch the video below:

Posted in MISC Blog

UCS Comments on DOE Questionnaire

Statement from Andrew Rosenberg, Director of the Center for Science and Democracy at Union of Concerned Scientists regarding President-elect Donald Trump’s transition team disavowing a 74-item questionnaire that was sent to the Department of Energy last week.

It’s great to see that the Trump transition team is admitting that demanding a list of employees was a mistake. This action was clearly inappropriate, and could intimidate Department of Energy employees and dissuade them from the important work they do… The swift and strong negative response to this incident should signal to the Trump administration that the scientific community is organized, engaged, and watching closely to make sure that independent science is respected an

Read more here.

Posted in Press release

U.S. Forest Service Burned at Congressional Hearing, Admits No Fault

forest service

A year ago, Sharyl Attkisson aired the story of U.S. Forest Service whistleblower Alicia Dabney on Full Measure. An advocate for minority employees, Lesa Donnelley, testified:

In the last eight years there’s been virtually no response to our requests. I wish I could say there has been improvement. I can’t. Things have gotten worse in terms of the blatant harassment of women and minorities, people with disabilities.

Congressmen Gowdy (R-SC), Hice (R-GA), and Congresswoman Speier (D-CA) scolded Forest Service official Lago during a recent congressional hearing.

Full Measure coverage on the hearing can be found here.

Posted in MISC Blog

MAKE IT SAFE COALITION PRAISES HOUSE VOTE TO MAKE CONTRACTOR WHISTLEBLOWER RIGHTS PERMANENT

Action follows Senate passage institutionalizing landmark reform

The Make It Safe Coalition (MISC) praised House action to unanimously approve S. 795, legislation that makes permanent a 2012 pilot program creating best practice whistleblower rights for contractor employees outside the Intelligence Community. (IC) The Make It Safe Coalition consists of whistleblowers and 75 NGO’s whose common mission is stronger protection for employees who use free speech rights to challenge abuses of power that betray the public trust.

In 2012 Congress, led by Senator Claire McCaskill, enacted a four year pilot to expand preexisting rights for Pentagon contractors and those receiving stimulus funds. Congress acted after Inspectors General credited prior whistleblower laws as effective resources to reduce fraud, waste and abuse in government spending. The pilot program provided jury trial rights for contractor whistleblowers that actually are far stronger than those available for government employees.   Legislation to make the rights permanent unanimously passed the Senate earlier this year. Lead sponsors to the House action were Rep. Jason Chaffetz (R.-Utah), and Rep. Elijah Cummings (D.-Md.)

While MISC applauded the action, it noted that a loophole created in 2012 continues to exclude IC contractor employees. While permitting whistleblower protection for the rest of government spending, in 2012 the House Permanent Select Committee on Intelligence (HPSCI) forced removal of preexisting whistleblower rights for IC contractors, an action that Edward Snowden has explained helped convince him to bypass normal channels in favor of media leaks.  This Congress, both HPSCI and the Senate Select Committee on Intelligence (SSCI), have refused to permit action on or even to discuss S. 794, legislation that would extend whistleblower protection to IC contractors.

Statements by MISC Steering Committee representatives follow:

Tom Devine, Government Accountability Project legal director: Whistleblower protection may be the only major issue on Congress with a unanimous bi-partisan mandate for good government reform.  Today’s unanimous House vote institutionalizes the infrastructure for best practice legal rights when contractor whistleblowers defend taxpayers against fraud, waste and abuse. Unfortunately, whistleblower rights are weaker for actual government civil service employees, who do not have access to jury trials. Worst of all, independent due process rights are nonexistent for Intelligence Community contractors. The result: there is no accountability for what often are government’s worst abuses of power and corruption, and the lack of rights working within the system leads to classified media leaks.  Congress needs to finish what it started with this reform.

 

Emily Gardner, Public Citizen, worker health and safety advocate: We commend Congress for taking action on this commonsense, bipartisan bill to make permanent an important program safeguarding certain federal contractor employees from employer retaliation.  Whistleblowers play a critical role in protecting our democracy from waste, fraud and abuse.  For this very reason, we also urge Congress to extend similar protections to all federal workers, especially intelligence community contractors, who remain virtually defenseless against retaliation when they bravely report corruption and other abuses of power.

 

Danielle Brian, Project On Government Oversight Executive Director: As our government’s reliance on federal contractors and grantees continues to increase, it is important to recognize that those individuals should have the same whistleblower protections as federal employees. Whistleblowers are the best source of information about fraud, waste, and abuse in the public and private sectors, and they are critical to promoting institutional accountability, compliance, and safety and security. We support the work of whistleblower champions in Congress who have worked tirelessly to extend whistleblower protections to the millions of contractors and grantees working for the federal government.

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Shanna Devine
shannad@whistleblower.org

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