Coalition Praises Senate Action Adding Disciplinary Teeth to the Whistleblower Protection Act

Senate Unanimously Approves S. 585, Dr. Chris Kirkpatrick Whistleblower Protection Act of 2017

WASHINGTON – The Make It Safe Coalition (MISC) Steering Committee praised May 25 Senate action by unanimous consent approving S. 585, the Dr. Chris Kirkpatrick Whistleblower Protection Act of 2017. Dr. Kirkpatrick was a whistleblower who challenged excessive prescriptions at the VA Medical Center in Tomah, Wisconsin and took his own life after being fired.

It expands to the entire civil service stronger rights and disciplinary accountability teeth that Congress passed last year for Department of Veterans Affairs (VA) employees. MISC leaders praised it as a breakthrough to deter retaliation.  Senator Ron Johnson (R-WI), Chairman of the Senate Homeland Security and Governmental Affairs Committee, sponsored the legislation.

The new law strengthens whistleblower protection from three angles:

*Stronger discipline penalties: The bill expands the “two strikes and out” rule that requires the VA to propose discipline for whistleblower retaliation or other prohibited personnel practices violating the merit system. After a finding by the U.S. Office of Special Counsel (OSC), VA Office of Inspector General (OIG), U.S. Merit Systems Protection Board (MSPB) Administrative Judge (AJ) or higher authority, a first offense would trigger a mandatory agency-proposed three-day suspension. A second offense would require proposed termination. The manager would retain MSPB appeal rights the same as for any other alleged misconduct.

Until now the chances of discipline for retaliating against whistleblowers has been between token and non-existent. Only the U.S. Office of Special Counsel can seek sanctions, and it seldom acts due to higher burdens of proof than necessary for remedial actions to “stop the bleeding.” Under S. 585, the whistleblower could seek discipline directly from a series of authorities, not all even requiring litigation. The OSC no longer would have to prosecute. Its investigative finding of prohibited personnel practice automatically would create sanctions.

*Expanded protection: The bill also makes unauthorized access to medical records a formal personnel action, creating liability under the WPA and civil service law for any prohibited personnel practice. This type of privacy violation has been a common tactic to find derogatory information on whistleblowers. Unlike last year’s VA reform, however, the bill does not expand personnel actions to include any retaliatory investigation. Unauthorized access to medical records is only one of the many forms of retaliatory investigation.

*Expanded training: The legislation also would require annual training in whistleblower laws for all supervisors and employees alike. Since few in either category are aware of merit system rights, improved training could have as much impact preventing retaliation as sharper disciplinary teeth.

MISC leaders offered the following comments on the legislation:

Tom Devine, Legal Director of the Government Accountability Project, was enthusiastic about the legislation as far as it goes, but urged further action.

If the House follows through, this bill will be an accountability breakthrough by closing a functional disciplinary loophole since 1978. For the first time bureaucratic bullies will have something to lose by retaliating. For all practical purposes, currently the worst that can happen now is that they won’t get away with it, and they likely will be rewarded for doing the dirty work. Hopefully the House will expand the personnel action for unauthorized medical access to include all retaliatory investigations, as it did last year for VA whistleblowers. Whistleblowers should be protected from all witch-hunts, not just those involving their medical records.

Emily Gardner, Worker Health and Safety Advocate of Public Citizen, said:

We commend Congress for taking action to protect whistleblowers when they bravely expose waste, fraud, and abuse within the VA. This bill is a step in the right direction and will serve as an important tool for ending retaliation against whistleblowers. Lawmakers should further strengthen the bill by prohibiting all retaliatory investigations against VA whistleblowers and pass this critical good government measure without delay.

Pete Sepp, President of the National Taxpayers Union, said:

When it comes to fiscally accountable government, whistleblower protection is taxpayer protection. Senator Johnson deserves a big round of applause from the people who pay government’s bills. His legislation recognizes that changing the bureaucracy’s attitude requires real consequences for federal supervisors who retaliate against whistleblowers.

Contact: Luke Drabyn, Communications Associate, GAP
Phone: 202.457.0034 ext. 130
Email: luked@whistleblower.org

Contact: Jenn Fedor, Communications Director, National Taxpayers Union
Phone: 703.582.2433
Email: jenn.fedor@ntu.org

Contact: Angela Bradbery, Director of Communications, Public Citizen
Phone: 202.503.6768
Email: abradbery@citizen.org

The Make It Safe Coalition

The Make It Safe Coalition is a nonpartisan, trans-partisan network of 50 good government, taxpayer, scientific, labor, civil liberties, and law enforcement organizations dedicated to strengthening protections for whistleblowers in private and public sector who protect the public by exposing waste, fraud and abuse in government.

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