GAP today praised the unanimous action of a 35-0 vote by the House Oversight and Government Reform Committee to approve HR 3289, the Platts-Van Hollen Whistleblower Protection Enhancement Act of 2011.
This legislation – the companion bill to the Senate's Whistleblower Protection Enhancement Act (WPEA) legislation, passed last month – is a long-overdue overhaul of the ineffective Whistleblower Protection Act, the primary statute to protect federal whistleblowers who report waste, fraud and abuse.
The Committee introduced the legislation this past Tuesday. The WPEA was blocked from passage last Congress by an anonymous hold placed hours before adjournment, after the reform had passed, in some form, both the Senate and House of Representatives unanimously.
GAP Legal Director Tom Devine commented, "In the last month, nearly identical overhauls to give federal whistleblowers their strongest rights in history have passed both House and Senate committees unanimously. Congress should complete enactment of this long-overdue taxpayer reform before Christmas. No plan to cut federal waste and misspending will be credible without these protections."
Devine continued, "Fine tuning to the language is still needed before the law is ready, but the moment of truth will be whether the final House bill includes protections for intelligence community workers. Chairman Issa is courageously defending those whistleblowers despite threats from the House Intelligence committee to kill the entire reform if it includes modest protections for those workers – which were negotiated over seven months by the Senate Select Committee on Intelligence. Whistleblowers from intelligence agencies have shown that the notion of secrecy is used to bilk taxpayers, enact hidden agendas that hurt national security, and threaten Americans' privacy. Credible whistleblower protections also are essential to stopping anonymous leaks by providing a safe alternative."
HR 3289 includes many necessary improvements that represent the emerging legislative consensus (so far). The legislation:
- Closes judicially-created loopholes in the law's protection, while tightening language to preclude circumvention of the congressional free speech mandate.
- Provides those covered by the WPA with district court access to challenge major disciplinary actions.
- Breaks the Federal Circuit Court of Appeals monopoly on the appellate process by making the District of Columbia Circuit the designated forum for appeals. (The Federal Circuit Court of Appeals has a 3-219 track record against whistleblowers since Congress last reaffirmed the law in 1994).
- Provides a two-year pilot program giving whistleblower protections to government contractors. These protections build upon those created for defense contractors and recipients of federal funds under the Recovery Act.
- Extends coverage to some 40,000 airport baggage screeners.
- Provides anti-retaliation rights to those employees who refuse orders to violate the law.
- Creates specific protection in the law for scientific freedom, making it an abuse of authority to censor, obstruct dissemination, or misrepresent the results of federal research.
- Restores the unqualified, original "reasonable belief" standard established in the 1978 Civil Service Reform Act for whistleblowers to qualify for protection.
- Codifies and gives a remedy for the anti-gag statute, which bars agency rules or after-the-fact classification of information from overriding whistleblower rights.
- Outlaws security clearance harassment as a WPA violation, establishes minimum due process standards for agency clearance actions, and breaks out of the grievance model through appellate review of clearance actions by an inter-agency intelligence community board required to have both merit system and national security expertise.
- Explicitly states that FBI employees retain their exclusive remedy for prohibited personnel practices and are not placed into the new section on prohibited personnel practices for the intelligence community.
- Extends rights analogous to the WPA for disclosures within the chain of command to employees of intelligence community agencies (i.e., CIA, NSA), and requires the Obama administration to issue corresponding enforcement regulations customized for the IC context but equivalent to the WPA.
- Bars the President from exercising discretionary power to impose national security exemptions that deprive employees of whistleblower rights after the employee files a reprisal complaint.
- Provides specific authority for whistleblowers to disclose classified information to Members of Congress on relevant oversight committees or to their staff.
- Provides compensatory damages up to $300,000, and reimbursement for expert witness fees to prevailing whistleblowers, establishing consistency with other remedial employment laws.
- Modifies the burdens of proof to make it more realistic for the Office of Special Counsel to seek disciplinary accountability against those who retaliate.
- Provides the head of the Office of Special Counsel with authority to file friend-of-the-court briefs in support of whistleblower rights cases appealed from the administrative level.
- Creates a whistleblower ombudsman as a five-year experiment to advise employees of their rights in Offices of Inspectors General (OIG) for Title 5 employees.
Additional amendments passed unanimously in today's markup include:
- Granting intelligence community whistleblower protections if employees make a covered disclosure to an appropriate supervisor. The amendment was introduced by Rep. John Tierney (D-Ma.)
- A study to recommend best practices for federal hotlines, which have fallen far behind corporate equivalents which are required by the Sarbanes Oxley law. The latter now lead to exposure of more internal corporate fraud than auditors, compliance departments and law enforcement combined. It was introduced by Rep. Jackie Speier (D-Ca).