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Senate clears whistleblower reforms

After a 13-year odyssey through Congress, the Whistleblower Protection Enhancement Act finally headed to the president’s desk after the Senate passed the bill Nov. 13 by unanimous consent.

After a 13-year odyssey through Congress, the Whistleblower Protection Enhancement Act this month finally headed to the president’s desk after the Senate passed the bill Nov. 13 by unanimous consent. The House had unanimously approved the bill in September.

The version of the bill sent to the president, S. 763, was the most recent attempt to pass the WPEA, numerous iterations of which had been introduced in the House and Senate for more than a decade.

"After a 13-year roller coaster campaign, Congress unanimously has given whistleblowers who defend the public a fighting chance to defend themselves,” said Tom Devine, legal director at the Government Accountability Project, a whistleblower advocacy group. “This is a major victory for taxpayers and public servants, but a major defeat for special interests and bureaucrats. Free speech rights for government employees never have been stronger.”

Devine noted that other versions of the reform legislation had been killed in previous sessions—in 2004, 2006, 2008 and 2010—by anonymous lawmakers through a procedural maneuver known as a “secret hold.”

While Devine gave credit for the passage of the bipartisan bill to a long list of sponsors from both parties, he especially praised retiring Sen. Dan Akaka (D-Hawaii) for his longstanding campaign to pass the legislation, noting that the senator “has run and won a marathon victory for whistleblowers and taxpayers."

But Devine said that even with passage of the bill, government whistleblower rights “are still second class” compared to protections afforded to private-sector whistleblowers, and that more work remains to be done. He pointed to two major parts of the legislation that were cut from the final version: “jury trials to enforce newly-enacted protections, and extension of free speech rights to national security workers making disclosures within agency channels.”

Augmenting protections

President Obama last month issued a presidential policy directive that extends whistleblower protections to intelligence community employees, as well as other employees who are eligible for access to classified information. The move came after the House removed national security whistleblower provisions from the WPEA legislation.

That Oct. 10 directive, PPD-19, forbids agencies from taking personnel actions against the employees covered by the directive in retaliation for protected disclosures of waste fraud or abuse. The directive also prohibits retaliatory actions related to security clearances and eligibility for access to classified information. Among other things, the directive also instructed intelligence agencies to create a review process within 270 days for claims of retaliation consistent with the Whistleblower Protection Act, and ordered agencies that possess classified information to establish an inspector general review process for retaliation claims related to security clearances and eligibility for access to classified information.

While GAP and other whistleblower groups praised that directive, Devine noted at the time that PPD-19 nonetheless was no substitute for enactment of legislation that makes permanent changes to the law.

Extensive improvements

The bill passed last week expands on the Whistleblower Protection Act of 1989 by strengthening a wide range of protections for disclosures of government wrongdoing.

The bill closes loopholes that had resulted in the protection of whistleblowers only when they are first to report misconduct, and only if it is unconnected to their job duties.

It also clarifies that whistleblowers are protected for challenging the consequences of government policy decisions, and that protection of critical infrastructure information does not override WPA protection.

The WPEA also:

• Suspends the Federal Circuit Court of Appeals' sole jurisdiction on appellate review of the WPA;

• Establishes protections for Transportation Security Administration employees;

• Overturns a practice that allows agencies to present their defense first, and that permits the Merit Systems Protection Board to rule on a case before a whistleblower presents evidence of retaliation;

• Specifies that a president who exercises the power to impose a national security exemption in a whistleblower case must do so prior to any challenged personnel action;

• Provides compensatory damages for whistleblowers who prevail after an administrative hearing or retaliatory investigation; and

• Gives the Office of Special Counsel authority to file friend-of-the-court briefs to support employees appealing MSPB rulings, and makes it easier for the OSC to discipline responsible parties in cases of illegal retaliation.

Some saw the passage of the bill as a possible indication of a new spirit of cooperation in a post-election Congress.

“This opening salvo to the lame duck shows that Congress can put aside partisan posturing and deliver more government accountability to the American public,” said Angela Canterbury, director of public policy at the Project on Government Oversight.

To see the text of the bill, go to: http://makeitsafecampaign.org/news/wp-content/uploads/2012/11/S.-743-As-Amended.pdf.

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