Open, Accountable Government
New Bill Will Strengthen Transparency and Accountability by Protecting Federal Whistleblowers
Today, President Obama signed a bill that will bring stronger protections for federal whistleblowers. The bill, the Whistleblower Protection Enhancement Act (S. 743), will improve government transparency and accountability by safeguarding public servants who report misconduct.
Whistleblowers make the public aware of lawbreaking, waste, or threats to health and safety. By protecting public servants who report problems from professional retribution, the public will learn more about government activities in need of attention and improvement. Furthermore, protecting and rewarding whistleblowers can strengthen a culture of transparency and accountability in government and deter wrongdoing from occurring in the first place.
This update was needed because current whistleblower protections are riddled with loopholes from court rulings over the years that leave individuals at risk of retaliation from their supervisors, including being fired. The new bill will close loopholes, clarify protections, and strengthen the agencies charged with protecting whistleblowers. Its passage represents the fulfillment of an intensive, years-long effort by the government accountability community, as well as congressional leaders and whistleblowers themselves.
How Federal Whistleblowers are Protected Now
Under existing law, federal employees are protected from retaliation for disclosing information that they reasonably believe demonstrates a violation of law or regulation, waste or abuse, or a danger to public health or safety. Employees may disclose to officials within their agency, members of Congress, or journalists. Classified information can be disclosed to the agency inspector general or the independent Office of Special Counsel (OSC). Agencies cannot fire, demote, or otherwise punish an employee because he or she blew the whistle.
If an employee feels retaliated against for blowing the whistle, he or she can file a complaint with OSC. OSC investigates to determine if the complaint has merit and requests the agency correct anything improper. Cases can also go before the Merit Systems Protection Board (MSPB), an independent agency which adjudicates personnel appeals for federal employees if OSC believes an agency is not taking corrective action or if a whistleblower disagrees with a decision by OSC to not seek corrective action.
An administrative judge at the MSPB decides appeals. If the MSPB holds that the agency retaliated against the whistleblower, it can order the agency to undo the punishment and pay the whistleblower's attorney fees. If the employee or agency disagrees with the judge's decision, either the individual or the agency can appeal to the full board. Decisions by the judge or board can, in turn, be appealed to a federal appellate court.
Chinks in the Armor
Over the years, this complex system developed a number of weaknesses that left whistleblowers exposed. In particular, the U.S. Court of Appeals for the Federal Circuit, which is the appellate court with jurisdiction over MSPB decisions, has a "consistent track record of narrowing the law's protections," according to the Government Accountability Project.
Under these judicially created loopholes, a federal employee is not protected from retribution under a number of common scenarios, including if he or she:
- Is not the first person to report the incident;
- Discloses related information to a co-worker or supervisor;
- Shares the results of a policy decision; or
- Reports the issue while carrying out job duties.
The results of a recent study by the MSPB, which surveyed more than 42,000 employees, suggest that these loopholes may have contributed to an atmosphere of impunity within federal agencies. A larger percentage of whistleblowers reported suffering reprisal in 2010 compared to 1992. Whistleblowers appear to be 13 times more likely to be fired from their job than in 1992, according to the survey.
Thankfully, the percentage of employees who perceive wrongdoing has declined from 17.7 percent in 1992 to 11.1 percent in 2010. And despite the risks, a larger percentage (65 percent in 2010 compared to 60.2 percent in 1992) reported blowing the whistle when they saw wrongdoing. Many of these respondents reported problems to their immediate supervisors in 2010 (33.4 percent), and relatively few reported issues to their agency's Office of Inspector General (5.1 percent), OSC (1.1 percent), a member of Congress (1.8 percent), or their union representative (7.2 percent). Those numbers varied only slightly from 1992.
Strengthening protections for whistleblowers may help to further reduce wrongdoing, while at the same time ensuring fairer treatment for whistleblowers. As the MSPB report notes, "The most important step that agencies can take to prevent wrongdoing may be the creation of a culture that supports whistleblowing."
The new bill is aimed at clarifying and strengthening protections, closing loopholes, and enhancing the authorities of offices that protect whistleblowers. Key provisions of the bill:
- Fix the aforementioned harmful judicial precedents by making the protections more broadly applicable;
- As a two-year experiment, allow whistleblowers to appeal to the other appellate courts, rather than only the Court of Appeals for the Federal Circuit, which created the harmful loopholes;
- Clarify that scientists who blow the whistle on censorship are protected;
- Extend whistleblower protections to Transportation Security Administration employees;
- Allow the MSPB to make agencies pay compensatory damages for retaliating against a whistleblower;
- Increase MSPB's ability to take disciplinary action against a manger for illegal retaliation against a whistleblower; and
- Require agencies to better inform employees of their whistleblower rights, including creating ombudsmen within each agency's inspector general office.
The bill's passage was hailed as an advance by the Make It Safe Coalition, whose members range across the political spectrum and include OMB Watch. The coalition's statement explained "though it does not include every reform that we have sought and will continue to seek, the bill will restore and modernize government whistleblower rights by ensuring that legitimate disclosures of wrongdoing will be protected, increasing government accountability to taxpayers, and saving billions of taxpayer dollars by helping expose fraud, waste and abuse."
Building the Culture of Accountability
The new law will be an important step forward for transparency and accountability in government. The next step will be for agencies to responsibly implement the law.
Despite the bill's many helpful reforms, advocates admit that intelligence and national security workers have been left out – the bill does not provide them with the protections other federal employees have. To address this concern, in October, President Obama issued a directive to improve protection of intelligence community whistleblowers. While praiseworthy, the presidential directive cannot provide the same legal protections that including these workers in the law would have.
Nevertheless, the bill's passage represents Congress' acknowledgement that whistleblowers are important to ensuring the integrity and efficiency of government operations. The new protections will be a significant advance for strengthening a culture of accountability within government.