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The 'Follow the Rules Act': Whistleblower protections extended to more circumstances

This week, Nathan Abse speaks with Liz Hempowicz—the watchdog group Project on Government Oversight’s policy counsel, and an expert on federal whistleblower protections—about the FTRA and the state of play in federal whistleblower protections.

In May, Congress passed a new addition to federal employee whistleblower protections—the Follow the Rules Act. The FTRA aims to strengthen existing federal protections for feds who blow the whistle, under the Whistleblower Protection Act and the Whistleblower Protection Enhancement Act. Language in these earlier laws protected, but also created legal uncertainty for whistleblowers in certain cases—notably Rainey v. State, a case that revealed flaws in the law that exposed a State Department whistleblower, and ultimately others, to retaliation. This week, Nathan Abse speaks with Liz Hempowicz—the watchdog group Project on Government Oversight’s policy counsel, and an expert on federal whistleblower protections—about the FTRA and the state of play in federal whistleblower protections.

Was it impressive to you that the FTRA passed without a hitch in Congress—considering the slow pace and partisan atmosphere on Capitol Hill these days?

Hempowicz: I think whistleblower protection always has been a bipartisan issue. I think no matter who happens to be the majority party in Congress, or who is in the White House, there has always been a bipartisan consensus. The solutions don’t always look the same, and the details always need hammering out. But I think there’s been a commitment on both sides of the aisle to protect whistleblowers—and to have stronger enforcement and protections on this in place, because doing so means we end up with a better federal government.

As a whistleblower—or if you want to know your rights on the subject—where can you go for help and information?

Hempowicz: First, there are major differences in the laws and rules that govern different federal agencies regarding whistleblowers. There simply is no single standard. Protections at the Department of Veterans Affairs are different than those at the Department of Defense. Intelligence community employees have a different set of whistleblower protections. One way to start is look to your agency’s inspectors general. IGs at all agencies have information on the avenues available to whistleblowers. But, of course, at some agencies, the IG is known to have retaliated against whistleblowers. To avoid this concern, whistleblowers can skip consulting their IG, and instead go to the federal Office of Special Counsel. You can also always go to a member of Congress. Finally, you should know that in some circumstances, going to the press can be a legitimate whistleblower action, but there are other circumstances where it is not—the disclosure has to be about a specific and identifiable threat to safety. People also contact us here, at POGO—and we try to be as helpful as possible. We have a page on our website containing resources and attorneys who handle whistleblower cases, and another with general guidance and answers on whistleblowing and reporting corruption —and we even do short training on what people can do as whistleblowers. There definitely has been a rise in demand for this kind of information.

Can you give our readers an overview of the Follow The Rules Act—and how it passed?

Hempowicz: The text of this bill is very short. The bill is on paper a minor, technical change to existing law. In fact, it fixes what was probably a drafting error in the original law, in that it simply failed to cover all that it should, because it left out a few key words. Passage of the Follow The Rules Act has been led by Rep. Sean Duffy (R-Wis.) for more than two years. From its introduction, I believe as an amendment to an appropriations bill, there has been bipartisan support. Guided by Rep. Duffy and co-sponsors including Rep. Gerry Connolly (D-Va.), it passed the House, and then passed Senate without further amendments.

What does passing this bill accomplish?

Hempowicz: It’s a pretty straightforward bill. It tries to address a problem. The problem is this: Federal employees just want to do their jobs in good faith—but under the existing law, if you refused an order that you believed to break the law, you could be covered under whistleblower protection. But as a federal employee, you could at some point also be ordered to break not only a law, but a rule or regulation, in which case you might not have been covered. So, if you didn’t do as ordered, you could be reprimanded—or worse. But if you did follow that order, you could also equally get into trouble. Before FTRA, in the case of refusing orders that might violate a rule or a regulation, federal employees just did not have good whistleblower protection—and were put in a lose-lose situation. We didn’t want to see that happen. This legislation attempts to fix the problem, by making sure under more circumstances you are covered and protected.

Can you explain the new law in more detail: what was missing from the old law?

Hempowicz: Yes. So, there are some parts of the existing Whistleblower Protection Act and the Whistleblower Protection Enhancement Act that did specify that the protections apply with respect to “… law, rule or regulation.” Yet, there was a separate provision that specified that you were covered only if you refused an order which you said would violate “a law.” Here, note that the provision mentions only “a law,” not “law, rule or regulation,” all three, as it says elsewhere. So, the plain meaning of this omission could be that the drafters of the law wanted protections to apply only with respect to a “law,” but did not want the coverage to apply to anyone or any situation involving instead a “rule” or “regulation.” The lawmakers left those two words out—whether by mistake or not—and so in some instances the courts couldn’t protect employees under those circumstances, until the law was updated to include them, too. [Editor’s note: The FTRA, H.R. 657, inserts the words “rule, or regulation” in the old law—at Subparagraph (D) of section 2302(b)(9) of title 5, United States Code, remedying the omission.]

Did some news or event lead POGO—and Congress—to get behind the Follow The Rules Act?

Hempowicz: The Rainey v. State case, a few years ago, is what highlighted this problem for us at POGO and many in Congress. I’m not surprised that it passed—there’s a lot of support for this. People have to understand so much of what goes on at federal agencies is not about law, but about work done under rules and regulations—and these situations need to be covered explicitly under whistleblower protections, as they will be under the Follow the Rules Act.

The new law aside, why do whistleblowers often complain that the White House—no matter the political party—and agency managers are so frequently resistant to whistleblowers?

Hempowicz: It’s not surprising that the White House and agency officials often get upset with whistleblowers, and the whole idea of them in general. White House and agency officials are who whistleblower actions reflect poorly upon when a problem is revealed at an agency. I think this is easy to understand when you remember that Congress is conducting oversight over agencies—and that really means over the White House [agency leadership], and so the White House is a little resistant to that. Anyway, that’s part of why there is always some pushback from the top levels of the executive branch on whistleblowing.

Recently, executive branch leaks—reportedly, from White House staff and agencies—have made a lot of headlines. Some citizens and lawmakers seem to confuse this kind of high-level leaking with employee whistleblower activity—and might try to stop both. Isn’t there a danger looming here, of throwing out the baby with the bathwater?

Hempowicz: Absolutely. It worries us at POGO when we hear White House people talking about cracking down on leakers, or “finding the leakers” at agencies that talk to the press. Everyone in government should know that some communication between people who work at agencies and members of the press can be protected whistleblower speech. So, when we hear blanket discussions about stopping the leaks and “cracking down”—and these discussions lack nuance—we at POGO see a problem. So, if the White House cites a need to stop classified national security information leaks, that’s one thing. But it’s a different thing when they say they need to stop all leaks to the press. You run the risk of throwing out the baby with the bathwater, not distinguishing between whistleblowers and leakers, or protected disclosures versus what isn’t. These are nuanced questions, and if you are pushing back against all of it, indiscriminately, that raises the attention of organizations like POGO.

What’s the concern, specifically?

Hempowicz: That the kind of statements alone that we’ve seen from the White House and agencies recently can chill legitimate whistleblower activity—and that’s not what you want if you want a good federal government. You want whistleblowers to be able to come through protected channels. There’s a potential chilling effect now, as there was in previous administrations. But the conversation on this subject is definitely very politicized right now.

 Any other concerns about current anti-whistleblower efforts underway at federal agencies?

Hempowicz: As we saw recently, in a memo regarding employees at HHS, agencies sometimes try to stop or discourage whistleblowers—in ways that can very obviously be against the law. But what concerns us even more is that if agencies are discouraging legal disclosures that way—where it’s [blatant and] easy to spot and we can catch the agency doing it—who’s to say they won’t do it in more subtle, more internal ways that are harder to see and fight against? We are concerned about more subtle ways that agencies can discourage whistleblowers.

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