By JOE DAVIDSON
Efforts to pass long-delayed legislation to strengthen federal whistleblower protections are heating up, now that an agreement in principle on how to treat government spies has been reached.
The concerns of intelligence and national security agencies have obstructed a bill that would provide protections for employees who expose waste, fraud or abuse in government programs.
Sen. Christopher S. Bond (R-Mo.), vice chairman of the Senate intelligence committee, held up the legislation because of doubts expressed by agency officials. They worried that their operations might be compromised if staff members’ complaints about retaliation for whistleblowing were aired in court.
The House has twice passed legislation that would allow federal employees to sue in open court agencies that retaliate against them for exposing improper actions or policies.
But the Senate balked at the court provision for national security workers.
Under a tentative scenario being negotiated by Sen. Charles E. Grassley (R-Iowa), claims of retaliation against national security workers would be handled administratively, rather than in court. It would be up to the Obama administration to draw up the procedures.
“We have been working to provide whistleblower protections in a similar manner to employees of the FBI,” Grassley said. “We hope to have an agreement soon that can be presented to the full Senate for consideration.”
The FBI procedures, however, don’t fully please all advocates for stronger whistleblower rights. The administrative remedy raises a point of contention. Some whistleblower advocates prefer a structure that does not force whistleblowers to have their cases heard by an arm of the same agency they complained about. One option would be legislative language that instructs the Obama administration to make strong due-process rights part of the administrative process.
Nonetheless, the advocates are cautiously optimistic about the progress that has been made in a nearly decade-long effort to strengthen whistleblower protections.
“We’re excited that there has been a good-faith commitment and a marathon of hard work to get this reform completed,” said Tom Devine, legal director of the Government Accountability Project. “The jury is out on whether the effort will succeed.”
There are good signs, however. The White House and congressional Democrats and Republicans are in agreement that whistleblowers need greater protection.
Devine is one of almost 400 people, representing a broad variety of organizations and businesses, who signed an open letter this month to President Obama and members of Congress in support of “strong, comprehensive whistleblower rights.”
Many of the signers seem to have nothing in common. In addition to organizations that have been in the forefront of the effort to strengthen whistleblower rights, the list includes Green Plate Catering. Why? Because food companies have good reason to support whistleblower rights for food safety inspectors.
“We’re very concerned about the quality of food that hits the table,” said Kit Wood, Green Plate’s owner.
The letter contends that whistleblower issues are nearly universal: “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.”
Securing the right to a jury trial in federal court for federal whistleblowers — apart from national security workers — has long been a top priority of those who point to severe weaknesses in the current level of protection.
Avenues now available to whistleblowers are largely ineffective.
“Unfortunately, every month that passes has very tangible consequences for federal government whistleblowers, because none have viable rights,” the letter continued. “Last year, on average, 16 whistleblowers a month lost initial decisions from administrative hearings at the Merit Systems Protection Board (MSPB). Since 2000, only two out of 54 whistleblowers have received final rulings in their favor from the MSPB.
“The Federal Circuit Court of Appeals, the only court which can hear whistleblower appeals of administrative decisions, has consistently ruled against whistleblowers. Whistleblowers have won three cases out of 202 since October 1994 when Congress last strengthened the law.”
Statistics such as those have led to “a major push to try to get something through,” said Stephen M. Kohn, president of the National Whistleblowers Center. “There is a consensus that federal employees need better whistleblower protection.”