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Protecting Whistleblowers since 1977

GAP Applauds Passage of the Dr. Kirkpatrick Whistleblower Act

October 12, 2017
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Bill Replaces Rewards with Accountability for Bureaucratic Bullies

WASHINGTON ­­– Today, the Government Accountability Project (GAP) praised the unanimous House passage of S. 585 ­– the Dr. Chris Kirkpatrick Whistleblower Protection Act of 2017. The Senate had already unanimously approved the legislation, which creates unprecedented disciplinary accountability for federal managers who retaliate against whistleblowers. Last year Congress passed a similar measure for the Department of Veterans Affairs, which S. 585 expands to the entire civil service. President Trump is expected to sign the legislation. GAP, along with other members of the bi-partisan Make It Safe Coalition has long pressed to fill the accountability vacuum for those who harass whistleblowers.

At the heart of the new rules is mandatory, agency-proposed disciplinary action when a supervisor is found responsible for prohibited personnel practices after an investigation by the U.S. Office of Special Counsel (OSC), the agency chief, agency Inspector General or a Merit Systems Protection Board (MSPB) Administrative Judge. Under current law, discipline only can occur after a special prosecution by the OSC under an extremely difficult legal test. As emphasized on the house floor by lead sponsor Rep. Sean Duffy (R-WI), the law does not change the legal burdens of proof or due process appeal rights for managers to defend themselves, the same as for charges of any other misconduct.

The result has been an absence of deterrence against whistleblower retaliation. Currently, agency bullies have nothing to lose and can retaliate with impunity. In the past, when they have not gotten away with it, they almost routinely received a bonus or promotion as a reward for doing the dirty work of harassment.

In theory, the OSC can already seek discipline, but the OSC monopoly has created an accountability vacuum. It annually receives 3,000 to 4,000 prohibited personnel practice complaints, and finds illegal retaliation and obtains corrective action in between 80 to nearly 300 cases. From 2010 to date, however, the OSC only has conducted four disciplinary prosecutions – none for whistleblower retaliation. Even with negotiated corrective action, the OSC has only obtained discipline in 89 out of 1240 cases from FY 2010-2016, or seven percent. No manager has ever been fired for firing a whistleblower.

GAP Legal Director Tom Devine explained:

“This is a paradigm shift that may prevent far more retaliation than whistleblowers can stop through lawsuits. By filling the accountability vacuum, the new law replaces virtually guaranteed carrots with the specter of sticks for bureaucratic bullies who harass whistleblowers. This breakthrough reflects leadership by Senator Ron Johnson (R-WI), to whom all whistleblowers owe a debt of gratitude.”  

The legislation also outlaws access for employee medical records without consent; requires increased duties by agency chiefs to train managers and employees of whistleblower rights; requires intensified investigation of employee suicides, and provides for transfer preferences when probationary employees obtain temporary relief.

Contact: Tom Devine, Legal Director
Phone: 202.457.0034 x 124
Email: TomD@whistleblower.org

Government Accountability Project

The Government Accountability Project is the nation's leading whistleblower protection organization. Through litigating whistleblower cases, publicizing concerns and developing legal reforms, GAP's mission is to protect the public interest by promoting government and corporate accountability. Founded in 1977, GAP is a nonprofit, nonpartisan advocacy organization based in Washington, D.C.

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Author: 
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