After 13 Year Campaign, Federal Workers Get Long-Overdue Upgrades
(Washington, DC) – The Government Accountability Project (GAP) is praising President Obama's signing of S. 743, the Whistleblower Protection Enhancement Act (WPEA), into law earlier today. The legislation provides millions of federal workers with the rights they need to report government corruption and wrongdoing safely. The bill reflects an unequivocal bipartisan consensus, having received the vote of every member in the 112th Congress, passing both the Senate and House of Representatives by unanimous consent over the past couple of months. The text of the bill can be read here.
GAP Legal Director Tom Devine commented:
"This reform took 13 years to pass because it can make so much difference against fraud, waste and abuse. Government managers at all levels made pleas and repeatedly blocked the bill through procedural sabotage. But once there were no more secret 'holds,' the WPEA passed unanimously, because no politician in a free society can openly oppose freedom of speech. Over the years, earlier versions of this law had been called the Taxpayer Protection Act. Nothing could set a better context for fiscal cliff negotiations than a unanimous, bipartisan consensus to protect those who risk their careers to protect the taxpayers. This victory reflects a consensus ranging from President Obama to Representative Darrell Issa. The mandate for this law is that the truth is the public's business."
Among other key reforms, federal employees now are protected (in addition to already-existing scenarios) from reprisal if they: are not the first person to disclose misconduct; disclose misconduct to coworkers or supervisors; disclose the consequences of a policy decision; or blow the whistle while carrying out their job duties.
Over the past 13 years, GAP has led efforts to pass the WPEA, heading a coalition of hundreds of groups demanding these protections. Intensive dialogue between the Make It Safe Coalition (MISC), which GAP coordinates, the Obama administration, and both chambers of Congress has paved the way for this development.
The WPEA nearly passed at the end of the last four Congressional sessions, only to be killed by backroom deals during the final hours of negotiation. In one startling example, during the waning days of the last Congress (December 2010), the WPEA – after passing both the Senate and House by unanimous consent in some form – was killed by an anonymous Senator's "secret hold" in the last hours of the session.
Devine noted that there is still key work to be done for federal employees. The WPEA does not include jury trials to enforce newly-enacted protections, or the extension of free speech rights to national security workers making disclosures within agency channels. While the House removed the national security whistleblower provision from the bill, last month the Obama administration made good on its promise to take executive action on those rights, signing a Presidential Policy Directive to restore the lion's share of national security rights that the House removed.
Devine continued, stating
"The victory reflects strong bipartisan teamwork, as well as advocacy within the party, as Republicans often had to work harder at convincing wary colleagues. And it reflects relentless pressure from conservative stakeholders – like the National Taxpayers Union – throughout the last 13 years. Crucial support came from President Obama, who was committed from day one of his term to signing this bill into law. Most Presidents have offered lip service for whistleblower rights, but President Obama fought to give them more teeth."
In Thanks: Whistleblower Champions
Devine singled out retiring Senator Daniel Akaka (D-Hawaii) as the pioneer in the thirteen-year legislative campaign to pass the WPEA.
Other pioneer and current champions include Senators Charles Grassley (R-Iowa), Susan Collins (R-Maine), Joseph Lieberman (I-Ct.), Claire McCaskill (D-Mo.), Patrick Leahy (D-Vt.) and Carl Levin (D-Mi.). A full list of Senate sponsors can be viewed here. House passage was led by Republicans Darrell Issa (Ca.) and retiring member Todd Platts (Pa.) – who has sponsored the House bill for over a decade – as well as House Democrats Chris Van Hollen (Md.) and Elijah Cummings (Md.).
What the Bill Does: Details
The most significant benefits in the WPEA are listed below:
1.) Expanded Protection for Disclosures of Government Wrongdoing
- Closes judicially-created loopholes that had removed protection for the most common whistleblowing scenarios and left only token rights (e.g. only providing rights when whistleblowers are the first to report misconduct, and only if it is unconnected to their job duties). (Sec. 101, 102)
- Clarifies that whistleblowers are protected for challenging the consequences of government policy decisions. (Sec. 101, 102)
- Cancels the 1999 precedent that translates "reasonable belief" to require irrefragable proof ("undeniable, uncontestable, or incontrovertible proof") before they are eligible for protection. (Sec. 103)
- Protects government scientists who challenge censorship. (Sec. 110)
- Codifies and provides a remedy for the "Anti-Gag" Statute – a rider in the Appropriations bill for the past 24 years – that requires a statement notifying employees that agency restrictions on disclosures are superseded by statutory rights to communicate with Congress, whistleblower rights, and other statutory rights and obligations. (Sec. 104(a), (b) and 115)
- Clarifies that protection of critical infrastructure information does not override WPA protection. (Sec. 111)
2.) Expanded Coverage and Fair Processes
- Suspends the Federal Circuit Court of Appeals' sole jurisdiction on appellate review of the WPA in light of its consistent track record of narrowing the law's protections. (The Court has a 3-226 record from October 1994 – May 2012 against whistleblowers for decisions on the merits), restoring all-Circuit review for a two-year experiment as mandated in the original 1978 Civil Service Reform Act and the Administrative Procedures Act. (Sec. 108)
- Establishes explicit whistleblower protections for Transportation Security Administration employees. (Sec. 109)
- Overturns an unusual Merit Systems Protection Board (MSPB) practice that allows agencies in some cases to present their defense first and allows the MSPB to rule on the case prior to the whistleblowers' presenting their evidence of retaliation. (Sec. 114)
- Requires that the President's exercise of his discretionary power to impose national security exemptions that deprive employees of Title 5 whistleblower rights must be done prior to the challenged personnel action. (Sec. 105)
- Provides compensatory damages for prevailing whistleblowers under WPA cases that prevail after an administrative hearing, (Sec. 107(b)), including retaliatory investigations (Sec. 104(c)).
3.) Administrative Authorities
- Provides the Office of Special Counsel (OSC) with authority to file friend-of-the-court briefs to support employees appealing MSPB rulings. (Sec. 113)
- Makes it easier for OSC to discipline those responsible for illegal retaliation by modifying the burdens of proof (Sec. 106(b)), and by ending OSC liability for attorney fees of government managers, if the OSC does not prevail in a disciplinary action (Sec. 107(a)).
- Requires the designation of Whistleblower Protection Ombudsmen in Inspectors General Offices to educate agency personnel about whistleblower rights. (Sec. 117)
- Requires the MSPB to report on the outcomes of whistleblower cases, from the administrative judge through the Board appeal, in its annual reports. (Sec. 116(b))
- Requires the Government Accountability Office (GAO) to study the impact and feasibility of changes in the number and outcome of cases before the MSPB, the Federal Circuit, or any other court; and to provide recommendations to Congress regarding whether the MSPB should be granted summary judgment authority and whether district courts should have jurisdiction over some WPA cases. (Sec. 116)
Dylan Blaylock is Communications Director for the Government Accountability Project, the nation's leading whistleblower protection and advocacy organization.