Opinions clash over whistleblower act

Steve Kohn, executive director of the National Whistleblowers Center

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By Suzanne Kubota
Senior Internet Editor

The Senate has passed a bill to beef up protection for some whistleblowers in the federal government. The Whistleblower Protection Enhancement Act covers baggage screeners at the Transportation Security Administration, intelligence agency workers, and federal scientists who challenge censorship and government contractors. The bill calls for agency inspectors general to create whistleblower ombudsman positions to help employees understand their rights.

The House version of the measure still hasn’t made it out of committee.

Steve Kohn, executive director of the National Whistleblowers Center, who says it’s a flawed bill in need of fixing and a bad deal for feds,

While Kohn told Federal News Radio his group accepts compromise, the bill contains provisions that actually roll back current employee rights and we think it’s wrong to use an enhancement act to take away rights.”

Of major concern to Kohn is a provision in the bill that he said is “a change in the definition of a protected disclosure. Today, any federal employee who blows the whistle on a reasonably perceived violation of law is protected. The enhancement act will change that and create this category of quote-unquote ‘minor’ violations of law which is undefined.”

According to Kohn, employees need to be able to blow the whistle without fear of retaliation even on minor violations. “Frauds are detected from minor violations,” he explained. “It’s very hard for someone just to find the big scandal. You find it through the little pieces.”

Also of concern, said Kohn, is the granting of a “new authority to issue summary decisions” by the Merit Systems Protection Board, without the allegation ever reaching court.

The Naitional Whistleblowers Center is urging the House and the Senate to fix the provisions”this term,” said Kohn. “It’s not that hard.”

Rep. Chris Van Hollen (D-MD), who says the Act promotes government accountability, told Federal News Radio it may be too late to make major changes to the Senate proposal.

“The clock is running,” said Van Hollen. “There are only a few weeks left and the question is whether you roll the dice and risk the whole effort failing in order to get some of these changes now, and I think the judgment’s going to be that we should take these improvements, they are an important step forward. I would agree with those who are disappointed that we didn’t get more, but this is one of those cases of hard choices. I think it would be risking a lot to play chicken on this because the likely outcome would be that we get nothing. This is always a building process and we believe this is one important brick added to the protections for whistleblowers.”

While Van Hollen concedes there are some “who do not believe that (the Senate version) goes far enough” in changing current whistleblower protections, “in my view it’s still a step forward.”

Increased protections, said Van Hollen, include “in limited circumstances, for non-national security whistleblowers to have their day in court, number one. Number two, the federal circuit court has had a monopoly on the review of these whistleblower cases.” Whistleblower suits could now be filed in any of the circuit courts in the country, increasing interpretation of the cases, he said, and making it more convenient for the majority of federal workers who live and work outside the Washington, DC area.

“The other major change here,” said Van Hollen, “is it does extend more protections to national security whistleblowers.” Where there is no defined process now, the Act, for the first time, “will require a formal fact finding investigation by inspector generals (sic) and requires the intelligence community to develop a review process for whistleblowers who want to appeal that first round of decisions.” The act also provides protections for people who say their security clearances were revoked in retaliation for their whistleblowing.

The Senate’s version, said Van Hollen, “doesn’t create the kind of mechanisms we wanted to do in the House bill,” but he said to watch for it to be debated on the House floor. “It’s possible to amend it, of course, but that would risk sending it back.”

John Palguta, vice president for policy at the Partnership for Public Service agreed with Van Hollen. “I think this is a step in the right direction. Is it going to be perfect? No. It’s evolutionary.”

Palguta told feds to “stay the course,” and remember the law was intended to protect the public interest. “What we have is the third attempt to refine the law. It’s not that the earlier laws were horrible or terrible, it was just that, as we’ve learned over time, that there’s ways to make them more effective.”

As the Senate version sits, said Palguta, “I don’t think this really strips very much away,” while at the same time it “reinforces that you cannot cover yourself in the cloak of whistleblowing to protect yourself from being fired when the firing is justified outside the whistleblowing.”

It’s important for managers to note, said Palguta, they can still take an action when there’s evidence that the employee is not doing their job, and they would have been removed from their job even in the absence of any disclosure.

At the same time, the act is a reminder, he said, that you still have to do your job, even if you’re a whistleblower.