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

Contact: Jenn Fedor, Communications Director, National Taxpayers Union
Phone: 703.582.2433

Contact: Angela Bradbery, Director of Communications, Public Citizen
Phone: 202.503.6768

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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Sponsorship of S. 1094 “Department of Veterans Affairs Accountability and Whistleblower Protection Act of 2017”

DATE: June 1, 2017
TO: Congressional sponsors of S. 1094
FROM: The Make It Safe Coalition

RE: Sponsorship of S. 1094 “Department of Veterans Affairs Accountability and Whistleblower Protection Act of 2017”

The undersigned organizations write to express our dismay at provisions that severely threaten the merit system in S. 1094, the “Department of Veterans Affairs Accountability and Whistleblower Protection Act of 2017.” Ironically, Title II of the legislation would functionally cancel due process, the foundation for whistleblower protection and all other merit system rights. It is not possible to strengthen whistleblower protection rights on paper, while canceling a fair day in court to defend against retaliation or an intra-agency hearing while encouraging political purges.
We recognize and appreciate the stronger rights proposed in Title I of the legislation. The bill proposes a precedent-setting Assistant Secretary of Whistleblowing, and its Office of Accountability and Whistleblower Protection strengthens President Trump’s Executive Order creating a VA whistleblower office. The legislation properly makes whistleblower protection as a critical element in supervisory performance appraisals. It also requires stepped-up, personal training in whistleblowing law for employees. If the bill ended there, we would be expressing unqualified appreciation.
Unfortunately, Title II creates a Faustian bargain and without modifications to the due process provisions, is not something we can throw the full support of the whistleblower community behind. Title II creates a system to fire employees in two weeks, while canceling intra-agency appeals and turning Merit Systems Protection Board (MSPB) hearings into window dressing. While Board review would still be available, the MSPB would have to approve any decision supported by “substantial evidence,” which means “more than a scintilla.” The bill does not even leave crumbs for Performance Improvement Plans and all other performance-related actions, canceling all civil service rights. Those actions would make it much more difficult than it already is for employees to win when they act on Whistleblower Protection Act rights, or even merely seek justice.
The bottom line is that Title II creates thinly disguised civil service martial law. It cancels pre-existing rights against management abuse of power, whether through whistleblower retaliation, political purge or any other merit system violation. None of our organizations is opposed to “draining the swamp.” But this approach means that we may lose dedicated public servants instead of the alligators.

Marcel Reid, President

Tom Devine, Legal Director
Government Accountability Project

Michael Ostrolenk, President
Liberty Coalition

David Williams, President
Taxpayers Protection Alliance

Elizabeth Hempowicz, Policy Counsel
Project On Government Oversight

Emily Gardner, Worker Health and Safety Advocate
Public Citizen

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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.


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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:

Posted in 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 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