How not to handle whistleblower cases

No one knows what divided government will bring in the next two years — I’m guessing more division. But one persistent problem deserves attention from politicos of both parties: How to better handle whistleblowers.

A recent episode involving Iowa Republican Sen. Chuck Grassley brought this to mind. After pestering the intelligence community for four years, Grassley got certain documents he’d requested. They arrived from Charles McCullough, the CIA’s inspector general and prove that the agency sniffed out email between the CIA whistleblower executive director and Congress in 2014.

The incident didn’t get a lot of attention, but it’s telling. The documents, technically Congressional Notifications, originally went to Sen. Diane Feinstein (D-Calif.) and then-Sen. Saxby Chambliss (R-Ga.). They also went House intelligence leadership and to then-Intelligence Director James Clapper.  But because the short documents were classified, they didn’t get to Grassley, who smelled a rat.

Now they’ve at last been declassified and Grassley posted them. They state that CIA security “compiled a report that includes excerpts of these whistleblower-related communications,” and that a summary was shared with CIA management, which would have included then-CIA director John Brennan.

McCullough stated the CIA was lawfully doing routine security monitoring. But he expressed concern about the danger to whistleblower confidentiality. I would add the concern that loss of confidentiality increases the likelihood of retaliation.

Similar situation at Coast Guard

A somewhat analogous whistleblower incident recently occurred at the Coast Guard where, once again, the inspector general expressed “profound concerns.” A since-retired employee complained of discrimination of some sort, and the OIG was looking into whether the Coast Guard retaliated. Then the OIG found out the Coast Guard’s investigative service had launched an investigation of its own and obtained a search warrant going after communications between the OIG and congressional staff.

Acting Homeland Security Inspector General John Kelly worried the Coast Guard Investigative Service was committing a second round of retaliation in executing the search warrant. The situation descended into a nasty back-and-forth, as Federal News Network’s Nicole Ogrysko reported. DHS management “fails to even acknowledge the chilling effect” its actions have on whistleblowers’ confidence in the system, Kelly wrote.

It’s an old theme. No amount of legislation or expressed piety seem to ever negate it. For managers, whistleblowers can be a major pain in the butt — no doubt about it. Whistleblowers aren’t always right, but the process for dealing with them should be fair and consistent with law and policy. In these two cases, agency behavior looks marginal on law and worse on policy. DHS said it will require the Coast Guard to coordinate with the OIG before it tries to get hold of the office’s communications.

I guess that’s an improvement, but what about all of the other DHS agencies?

Also on the subject of whistleblowers, the IRS gets the “Chintziness Award” for dealing with tax cheat whistleblowers. The Government Accountability Office pointed out the problem. The issue concerned tax evasion related to foreign bank and financial accounts. In so-called FBAR cases, the IRS was paying whistleblowers a percentage only of the recovered tax, but not of the resulting penalties. Rightly or wrongly, the penalties routinely exceed the tax owed.

By the way it calculated  FBAR case recoveries, the IRS shorted whistleblowers by $3.2 million. IRS kept the penalties information in a separate, standalone database out of sight, out of mind, apparently. Earlier this year the law changed so that penalties are part of the “proceeds” used to calculate whistleblower awards. The IRS said it will update its procedures accordingly.

Whistleblowers make up a small number of federal employees. Most people in large organization like to grouse, but they rarely take career- and reputation-threatening steps. In some ways, though, you can judge the strength of the organization by how it deals with these exceptions.

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