Yesterday’s hearing by the House Oversight Government Reform (OGR) Committee’s Federal Workforce, US Postal Service and Census Subcommittee “Examining the Administration’s Treatment of Whistleblowers” provided a refreshingly bipartisan platform for Congress to unite behind whistleblowers.
The hearing, led by subcommittee Chairman Blake Farenthold (R-TX) and Ranking Member Stephen Lynch (D-MA), explored whistleblower retaliation in the federal government since passage of the Whistleblower Protection Enhancement Act (WPEA). Watch the hearing webcast below.
GAP Legal Director Tom Devine, along with GAP clients Robert MacLean (Federal Air Marshal whistleblower), whose case is going to be heard before the Supreme Court, and Dr. Robert Van Boven (Department of Veterans Affairs whistleblower) testified. They were joined by Special Counsel Carolyn Lerner and MSPB Chairwoman Susan Tsui Grundmann.
OGR Chairman Darrel Issa (R-CA) and Ranking Member Elijah Cummings (D-MD) expressed support for additional legislation to address unresolved issues from the WPEA. Notably, Chairman Issa expressed a commitment to prepare a bipartisan OSC/MSPB reauthorization bill for possible passage during the lame duck. This long overdue legislation is a noncontroversial housekeeping measure that would make the agencies more user-friendly. Delegate Eleanor Holmes Norton (D-DC) gained additional bipartisan support for H.R. 3278 to address the disastrous Federal Circuit decision that removes due process for employees with “sensitive jobs.”
Devine warned that since passage of the WPEA and stronger workplace rights, managers are increasingly using a new method of retribution – referring whistleblowers for criminal investigations and prosecutions when they engage in protected whistleblowing. Retaliatory investigations, whether criminal or administrative, can sully a federal employee’s reputation and place a permanent target on her back. Congressmen Lynch and Farenthold described the treatment of MacLean as a “disgrace” after he was investigated and consequently blacklisted for alerting Congress to public safety breakdowns. Special Counsel Lerner announced that the Office of Special Counsel is considering filing an amicus curiae “friend of the court” brief to the Supreme Court in MacLean v. Department of Homeland Security.
There was a shared understanding among hearing participants that in order to effectively deter whistleblower retaliation, leadership must come from the top. Lynch cautioned, “We can’t legislate culture.” Dr. Van Boven, who disclosed that the Department of Veterans Affairs was misusing congressional funds to treat our veterans and soldiers, called for greater recognition of whistleblowers within government.
Cultural transformation must include education, so that managers and employees are informed of existing whistleblower protections. Retaliators will likely think twice before relocating a whistleblower to the basement if they may be held accountable for their actions. To President Obama’s credit, that initiative is being reinforced from the top. Special Counsel Lerner testified that a recent administration directive for mandatory whistleblower rights training has led to a nearly three-fold increase in agency participation of the OSC Certification Program.
From nipping emerging forms of retaliation in the bud, to arming whistleblowers with the knowledge of existing rights, it will take a collaborative approach between government and whistleblower advocates to ensure that our nation’s unsung heroes are protected when they “commit the truth.” We’re glad to know that we have a partner in the House Oversight and Government Reform Committee.
Shanna Devine is Legislative Director for the Government Accountability Project, the nation’s leading whistleblower protection and advocacy organization.