Witnesses call on Congress to strengthen confidentiality protections for federal whistleblowers and grant them access to federal courts.
Today the House Committee on Oversight and Reform, Subcommittee on Government Operations held a bipartisan hearing to examine who qualifies as a federal whistleblower and what protections such a designation affords to those who make allegations of waste, fraud, abuse, or mismanagement. The hearing, Protecting Those Who Blow the Whistle on Government Wrongdoing, explored the effectiveness of existing laws that protect federal whistleblowers and whether Congress should act to make improvements.
Witnesses called to testify included whistleblower advocates and the Inspectors General of the Department of Defense and the Department of Justice. Whistleblower attorney David K. Colapinto, a partner at Kohn, Kohn & Colapinto, testified before the subcommittee explaining that whistleblowers have historically played a critical role in uncovering fraud, waste, abuse, and mismanagement. He stressed that federal employees must have the freedom to report waste, fraud, and abuse without fear of retaliation. “Whistleblowers are key to ensuring government accountability to the taxpayers,” Mr. Colapinto stated in his written testimony.
Confidentiality is crucial to ensuring the protection of federal whistleblowers and getting whistleblowers to step forward. “While Congress has guaranteed whistleblower confidentiality for decades, there exists some confusion about how it works,” Mr. Colapinto testified. He suggested that Congress act to clarify federal whistleblower confidentiality to provide federal employees with the same remedies available under other whistleblower laws.
Protecting the confidentiality of federal employees gives them the freedom to report waste, fraud, and abuse without fear of retaliation. In recent years, the confidential whistleblower disclosure provision of 5 U.S.C. § 1213(h) has enabled federal employees throughout the government to report to the Office of Special Counsel serious misconduct or fraud that otherwise would go undetected.
Despite the various federal laws that protect the confidentiality of federal whistleblowers, the recent public debate resulted in a chilling effect on potential whistleblowers who may call the extent of this protection into question. A December 2019 survey conducted by Government Business Council, the research branch of Government Executive, revealed half of the federal employees surveyed feel the discourse surrounding the intelligence community whistleblower has negatively impacted their safety. Nineteen percent of respondents stated they are “much less” likely to report wrongdoing to the appropriate authorities based on the attacks on the intelligence community whistleblower. Another 15 percent said they would be “somewhat less” likely to report wrongdoing.
Some federal employee whistleblowers will inevitably fall victim to retaliation despite the best efforts taken to protect them. Today’s witnesses testified that administrative schemes enacted by Congress since 1978 to protect federal whistleblowers have not worked because those laws prevent federal whistleblowers from filing their retaliation claims in U.S. District Courts. A report by the National Whistleblower Center, Special Report on Permitting Federal Employees to Have Their Whistleblower Cases Heard In U.S. District Courts, accompanied Mr. Colapinto’s written testimony.
The report found that “The failure to provide federal employee whistleblowers with direct access to U.S. District Court remains the single biggest problem facing any federal employee who desires to blow the whistle.” Laws like Title VII of the Civil Rights Act, where federal employees have access to U.S. District Courts and can request a jury trial, work better than laws like the current Civil Service System. Creating full-access to District Courts with the right to seek a jury trial would go a long way towards making the federal whistleblowing system more effective. The current system limits remedies strictly through administrative processes, such as the Merit Systems Protection Board. There is currently an estimated three-year backlog of federal whistleblower complaints at the OSC and the M.S.P.B.
The confusion of federal employees regarding their protections, a perception that they lack assurances of confidentiality, along with the delay and burden of litigation through the current system, could be a strong deterrent for many would-be whistleblowers.
Critical legislative actions to strengthen existing laws, recommended by those testifying today, include:
- Strengthen the Federal Whistleblower Confidentiality Provisions By Clarifying the Federal Whistleblower Statutes.
- Strengthen the Civil Remedies Provision of the Privacy Act.
- Strengthen Federal Whistleblower Protection By Creating Access to District Court sand Jury Trials.
- Create a permanent National Whistleblower Appreciation Day that mandates each federal agency and department to honor whistleblowers on July 30th and to recognize the importance of federal whistleblowing as a fundamental government policy.
A video of the hearing is available here: https://www.youtube.com/watch?time_continue=1&v=ce467zMe5qA&feature=emb_logo