Federal whistleblowers quickly losing confidence in their own legal protections, advocates say

Whistleblower advocates say federal employees are quickly losing confidence in a system Congress initially designed to protect them, in part, due to a recent and highly charged debate about the credibility of an intelligence community employee who made disclosures leading to the impeachment of President Donald Trump.

The recent climate has led House Oversight and Reform Committee Chairman Carolyn Maloney (D-N.Y.) and some of her colleagues to start writing new legislation designed to strengthen and clarify whistleblower protections for federal employees, she said Tuesday.

But a House oversight hearing intended to generate ideas for a new whistleblower protection bill quickly turned political, as members sparred over the anonymity of the whistleblower who raised the initial complaints leading to the president’s impeachment.

Republicans also saw Tuesday’s hearing as an opportunity to pepper Michael Horowitz, the Justice Department’s inspector general, with questions about a recent report from his office on the FBI and  Foreign Intelligence Surveillance Act allegations.

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National headlines, however, aren’t the only factor behind the push to strengthen federal whistleblower protections.

“We have seen a disturbing trend in the DoD disagreeing with the results of our investigations or not taking disciplinary action in substantiated reprisal cases without adequate or persuasive explanations,” Glenn Fine, principal deputy inspector general for the Defense Department, said. “Failure to take action sends a message to agency managers that reprisal will be tolerated and also to potential whistleblowers that the system will not protect them.”

The Defense Department’s Office of Inspector General has reallocated resources in recent years to its administrative investigations component, which handles an increasing number of whistleblower disclosures and reprisal allegations.

The DoD IG has added 40 positions to its investigations unit over the last three years, Fine said.

Rep. Gerry Connolly (D-Va.), chairman of the government operations subcommittee, pointed to recent data in the Federal Employee Viewpoint Survey as evidence the workforce had little confidence in the whistleblowing system.

According to the  2019 FEVS, 64.5% of federal employees believe they can disclose potential violations of law or regulations without fear of retaliation, 10.5% lower than what private sector surveys report, according to Connolly.

In drafting new whistleblower legislation, advocates urged Congress to focus on three improvements and clarifications.

First, they said Congress needs to reaffirm federal employees have the right to remain anonymous when they report waste, fraud and abuse.

“Anonymity should be guaranteed to whistleblowers who want it,” Elizabeth Hempowicz, director of public policy for the Project on Government Oversight, told the subcommittee. “I don’t think every whistleblower wants to remain anonymous, but that should be their decision. Not guaranteeing that right runs the risk of deterring would-be whistleblowers from coming forward, and that means waste, fraud and abuse is not reported.”

Anonymity also serves as a positive incentive for whistleblowers who often have few motivations to come forward, said Paul Rosenzweig, a resident senior fellow with the R Street Institute.

“All too frequently whistleblowers have faced retaliation for their actions,” he told the subcommittee. “If we wish them to have a positive incentive for them to come forward, and I think we all agree that we do, then it is essential to provide whistleblowers with the protection of anonymity when they wish. All people respond to incentives, and any wise system of law will recognize that.”

Second, whistleblower advocates urged Congress to clarify existing whistleblowing procedures.

Allowing an individual to “blow the whistle” simply means an employee has the right to disclose information that he or she reasonably believes points to a violation of a law, rule or regulation — or demonstrates gross mismanagement, waste or fraud.

“We want people to come forward. It’s then our job as IGs and others to investigate this to assess whether the information is supported,” Horowitz, the Justice IG, told the subcommittee. “But you don’t want to attack them, and you shouldn’t be attacking the person who brings that forward. They may be right. They may not be right, but that’s for us to assess.”

And third, whistleblower advocates urged Congress to consider giving federal employees new legal remedies to pursue whistleblower retaliation cases.

Federal employees are the only major sector within the U.S. workforce that can’t bring retaliation cases to a district court, and the existing administrative procedures available to federal whistleblowers today don’t work, Hempowicz said.

The Merit Systems Protection Board, which is the only agency that can grant employees a “stay” in their retaliation cases, has lacked a quorum for three years now. That means neither the MSPB nor the Office of Special Counsel can compel an agency to suspend a personnel action taken against a whistleblower.

Connolly, along with the late House Oversight and Reform Committee Chairman Elijah Cummings (D-Md.), had introduced legislation that would have allowed the MSPB general counsel to grant these stays with the board in its current state.

The proposal easily cleared the oversight committee and was part of the House version of the 2020 annual defense policy bill, but it failed to clear conference discussions late last year.