Great news out of Congress: legislators in the House of Representatives negotiating the Whistleblower Protection Enhancement Act have decided to scrap the provision that would give the Merit Systems Protection Board summary judgment powers.

Here’s a detailed writeup why this would have been a bad deal for whistleblowers; in short, it would have prejudiced many whistleblowers with agencies’ sophisticated legal maneuvering that would have denied them the ability to tell their side of the story to a third party.

What made this happen? As stated by Tom Devine of the Government Accountability Project, in a community conference call earlier today: sustained public protest.

“Congress heard you,” Devine said.

What lessons can we draw from this? Simply put, public outcry works. Backroom negotiations do not.

Devine also told the community that jury trials are off the table, and Senators Kyl and Sessions are demanding that even if bench trials are introduced, agencies should still have an easier time defeating whistleblower complaints. This is disappointing because the original deal was that if jury trials are introduced, then agencies’ burden of proof is lowered (to preponderance of the evidence), but if bench trials are introduced, the burden of proof stays the same (clear and convincing evidence).

Kyl and Sessions are reneging on their promise.

The already-passed Senate version of the WPEA contains this very compromise: jury trials and preponderance of the evidence standard. The initial House version contained the other compromise: bench trials and clear and convincing evidence standard.

If clear and convincing evidence is good enough for an MSPB judge, it should be good enough for a federal district judge. (It should be also good enough for a jury, but that point’s moot).

Kyl and Sessions should answer why they reneged on their earlier promise.

How do we seek change?

Look to the summary judgment example.

Finally, we should expect Congress to pass the WPEA in September, Devine said.

Politifact takes a look. Tom Devine of the Government Accountability Project thinks so, but in the very next entry, dated June 9, 2009, Obama’s own DOJ staff casts doubt on the legislation.

Of course, the public’s view of the legislative process is probably more restricted than that of Devine, who’s not a stranger to the White House.

Sadly, this isn’t the first time that Devine has revealed a looser commitment to the truth.

Maybe someone should politifact Devine’s various prevarications.

Stonewalled, Sen. Chuck Grassley (R-IA)

Dissenters’ Digest takes a look back at news stories covering whistleblowers, watchdogs, and government accountability. Look for it every other Saturday evening at www.dissentersdigest.com.

Contempt: A House committee voted to hold Attorney General Eric Holder in contempt for refusing to submit documents in connection with the Fast and Furious gunwalking scandal. President Obama invoked executive privilege, for the first time, to shield the documents from Congress. The measure may soon be presented to the House for a final vote. Meanwhile, Democrats are decrying the move as a political “witch hunt.”

Stonewalled: Senator Chuck Grassley is getting stonewalled by the Food and Drug Administration over an inquiry that it’s been spying on federal whistleblowers. The Senate and related House investigations were sparked by a lawsuit filed by six FDA whistleblowers who were allegedly targeted for surveillance. The National Whistleblowers Center is representing them in court. Relatedly, the Office of Special Counsel, which is also investigating the FDA over the same matter, released a memo this week to the federal government, urging agencies not to spy on whistleblowers. Doing so, the memo said, might lead OSC to conclude that retaliation is afoot.

Looking Backwards: President George W. Bush ignored a number of the CIA’s pre-9/11 warnings, according to new FOIA documents declassified and revealed this week.

Cover-Up: An Army Lt. General is accused of blocking a corruption probe in Afghanistan to help President Obama’s re-election.

Below the Fold:
Read the rest of this entry →

Check out these articles and their comments:

http://pogoblog.typepad.com/pogo/2012/06/the-danger-of-hasty-anti-leak-legislation.html (pending moderation)

http://whistleblower.org/blog/42-2012/2055-lieberman-feeds-off-leak-hysteria-calls-for-de-facto-official-secrets-act#comments

Both make the same point: that no safe, legal channels exist for the disclosure of classified information. This is simply not true.

The Whistleblower Protection Enhancement Act would not create any such channels, because Section 119 of S. 743 would only modestly upgrade the Intelligence Community Whistleblower Protection Act of 1998 (which upgraded the Inspector General Act of 1978), but neither provided for confidential disclosure channels. And WPEA still would not.

Only the Civil Service Reform Act of 1978 did so, by creating and authorizing the Office of Special Counsel to receive classified information, and guaranteeing confidentiality.

But it’s not convenient for GAP and POGO to say that now, apparently (despite GAP acknowledging it in 2006, on page 5).

Let them know you expect good government groups to be honest with the public:

dbrian@pogo.org

beae@whistleblower.org

There’s a quiet revolution taking place in the federal whistleblower community. Once-obedient and silent whistleblowers are starting to take note that the professional advocates who speak for us are no longer sensitive to our needs. There’s a schism between two major groups, the Government Accountability Project and the National Whistleblowers Center, over the Whistleblower Protection Enhancement Act (or at least there used to be. NWC has not come out against the WPEA recently).

More of us are beginning to see NWC’s criticisms as valid after we engage in independent research, despite GAP’s attempts to poison the well. Tom Devine, Legal Director of GAP, once told me to eschew community organizing tactics in favor of Machiavellianism. The results of his favored approach are not difficult to see: the public is ignorant of the extent of retaliation and lawlessness in the federal government because the professional advocates eschew empowering ordinary citizens in favor of backroom deals and clientelism.

There’s a paternalistic streak running among these professionals, who believe that whistleblowers must be kept silent and obedient, lest the public look at any intra-group conflicts with horror and dismiss us all as cranks. I, for one, have more faith in people’s abilities to judge a situation on the merits than obsess over its optics. A quick look at GAP’s marketing propaganda and reports portrays whistleblowers as two-dimensional mannequins without free will or agency. That’s not without purpose.

The constant obsession over “tactics” being counterproductive begs the question – counterproductive to whom? And to whose agenda? Because GAP’s current tactics certainly don’t benefit me.

Perhaps the straw that broke the camel’s back was when Devine told me that our role was to give Congress a “pep talk,” not criticism, lest their staffers turn their backs on us and our attempt to pass legislation to protect federal employees and taxpayers. Also, that lobbyists and these staffers are the “lower common denominator” to whom we should simply defer.

Forgive me, Mr. Devine, but the lower common denominator are the whistleblowers your organization purports to empower.

The sooner you realize this, the better our chances at passing real reforms.

(photo: caribbeanfreephoto/flickr)

Dissenters’ Digest takes a look back at the week’s stories covering whistleblowers, watchdogs, and government accountability. Look for it every other Saturday evening at www.mspbwatch.net/digest .

Beyond Reproach: Efforts to pass the Whistleblower Protection Enhancement Act came under scrutiny this week after it was disclosed by the lead lobbyists that the bill will not contain any jury trial provisions, a long-sought reform. The admission came after the Make It Safe Campaign Steering Committee objected to an open letter to Congress which highlighted flaws in the current bill. However, grassroots efforts, led by this author, pointed out that the Steering Committee has failed to engage the whistleblower community and the public in its lobbying activities, as well as practice transparency and accountability, the values it publicly champions. It remains to be seen whether the Steering Committee will take heed of suggested reforms, the rejection of which may well cost it considerable influence and credibility with the lowest common denominator that truly matters: federal whistleblowers.

Below the Fold: Read the rest of this entry →

The bottom line is that groups like POGO, ACLU, AFGE, and UCS have other business in Congress and cannot risk exposing/cajoling/strong-arming politicians on whistleblower issues. This is why I was asked to help kick-start a grassroots lobbying campaign, to give cover to GAP and MISC to get better protections. Except, when it really counted, GAP caved to the other groups’ reticence to do anything but settle for weak provisions.

The whistleblower community needs somebody in Congress who isn’t afraid to name names. There is no substitute for jury trials. If any politician is against them, they should be required to say so, and why, in the light of day, and then answer to his or her constituents.

That GAP, POGO, et al are throwing in the towel should serve as a wake up call to federal whistleblowers everywhere.

Dear MISC member,

Attached, please find a whistleblower letter to Congress drafted by me and fellow whistleblower Evelynn Brown of WhistleWatch.org. We request your consideration and signature.

In the interest of full disclosure, however, the MISC Steering Committee expressed initial objections to it as is, but after we refused to dilute it, they wished to add a comment. That comment is as follows:

The Steering Committee supports and has fought hard for the reforms highlighted in the letter. We have been told repeatedly by Senate and House members that these are not passable in this political climate. It is indeed not a favorable climate for federal whistleblowers. In fact, we are surprised to have any access to court at all given the House leadership’s opposition to the idea. But though we have been repeatedly told that the bill goes as far as it can go, it does not mean we shouldn’t keep asking for what’s right. However, that is with a caveat: there will come a time when we will need the support of all of us to get some reforms through to help as many whistleblowers as we can. There will be a moment when the perfect will become the enemy of the good. We hope that at that time, all federal whistleblowers will stand in solidarity with one another to get a law that serves as many as possible.

My initial response to that comment is available here: http://mspbwatch.net/2012/06/05/pogo-will-have-to-choose-between-whistleblowers-and-congress/. Now I also interpret it as a heavy-handed attempt to quell dissent at the moment of truth. Yesterday, Tom Devine admitted that he expected any community letter to be a “pep talk” for Congress, thus rendering the one I attached counterproductive, or some such thing. One question comes to mind: where in GAP or POGO’s numerous blog posts is any discussion and naming of politicians who oppose basic Magna Carta jury trial rights? How can we say that this is not a good climate for federal whistleblowers when we’re witnessing unprecedented disgust with Washington, public exacerbation with waste, fraud, and abuse, numerous corporate whistleblowers win multi-million dollar awards weekly, and a number of law firms start up whistleblowing practices? Who works for whom – Congress for us, or us for lobbyists and Congress? Why are we accepting as given the status quo – if a politician is against these sensible reforms, let them say so, and why, in the light of day. Until that happens, no, this is not good enough.

In any event, these are just a few rebuttals that would take place if we had a healthy, functioning dialogue in the community. We whistleblowers have lost our voice, handing it over to others who may not necessarily have our best interests at heart. For one thing, there is no whistleblower with voting power on the Steering Committee, which may be why we find ourselves at odds now.

I wish for you to know where the Steering Committee stands with regards to WPEA, which position diverges significantly from the community’s, and is a direct result of failure to substantially involve and be transparent with the whistleblower community. Based on conversations with Steering Committee members, it is unlikely that we will have jury trials, be rid of summary judgment, or divert substantial impact cases from the Federal Circuit, because once the bill passes through Congressional committees, that’s it. The bill may not even be retroactive, denying its coverage to all of us who worked on it and are waiting for our day in court.

Emailing you directly, without supervision or control by the Steering Committee, is a product of our frustrations with such lack of transparency and free flow of ideas. Consider this an initial expression of no confidence in the Steering Committee.

If you wish to sign on to the letter, please email me at [dpardo220 at gmail dot com].

Sincerely,

David Pardo
Founder, mspbwatch.net
Former Attorney/Advisor, Federal Aviation Administration

Open Letter May 21 (.docx)

If WPEA fails to pass, or does pass and causes harm to whistleblowers, will anyone have predicted it?

S. 743/H.R. 3289 is the latest attempt to pass the Whistleblower Protection Enhancement Act. Here are the past attempts. Apparently the past four attempts were stymied at the hands of holdouts in the Senate. The last attempt, S. 372 in December 2010, was blamed on a secret hold cast by Republican Senators. But that narrative conveniently ignores the fact that the Senate and Administration had the chance to pass it in February 2009 as part of the ARRA stimulus package debate, only to be killed by Senator Susan Collins. And it ignores why the bill was pushed all the way to the end of the Congressional term, empowering hostage-takers who placed the secret hold literally in the last hour of the session. At some level, that falls on Harry Reid, who has control over the Senate calendar, and who didn’t schedule debate until December 2010.

It also doesn’t help that the whistleblower community was divided back then, and continues to be, over what’s in the bill. The current sticking point is the summary judgment provision. We’ll see in a couple of years whether it’s a big deal when pro se whistleblowers at the MSPB get handed one defeat after another for being outmatched by professional agency counsel and biased MSPB judges. It’s not difficult to predict the outcome.

But more important is the process by which the professional advocates decide what to lobby for and how to lobby for it. The umbrella organization responsible for WPEA is the Make It Safe Campaign, created by Tom Devine of the Government Accountability Project. MISC is an ad hoc coalition of non-profits, whistleblowers, labor unions, and organizations. There is a steering committee composed of representatives from the Government Accountability Project, the Project on Government Oversight, Union of Concerned Scientists, American Federation of Government Employees, and the American Civil Liberties Union.  This is the largest and most prominent organization that speaks for whistleblowers on Capitol Hill, but no whistleblower is on the steering committee. Absent explicit request, there are no minutes kept and made available to the general membership, and members must go through the steering committee to communicate with each other, submitting their notices for 24-hour approval. There is no general membership contact list available, despite some of us asking for over 6 months. The National Whistleblowers Center used to be on the steering committee but resigned in protest after being excluded from legislative planning. NWC has opposed S. 372 and may oppose S. 743 due to the summary judgment provision.

If WPEA fails to pass, or if it passes and harms whistleblowers, it cannot be said that everything was tried but was met with irrational opposition in Congress. The fact is that not everything has been tried. The community has not been empowered or enfranchised for long-term input and decision-making. The public hasn’t been reached in an effective way. The advocates try to insert legislation in low-key ways, rather than empower a movement. The norms of transparency and reasoned debate are proving to be illusory.

If WPEA fails to pass or fails as law, now you will know why.

Update: Some whistleblowers issued an open letter to Congress yesterday, which was requested and steered by Tom Devine, only to have him request that we not publish it after the MISC Steering Committee got cold feet. Apparently Congress expects applause and cannot tolerate being criticized for passing a bill that fails to grant real due process (i.e. trial by a jury of one’s peers, which goes back to the Magna Carta of 1215 A.D.). The details will be omitted for now but the events of the past couple of days exemplify Sibel Edmonds’ post that the professional advocates sell whistleblowers down the river behind closed doors when it really counts.

June 4, 2012

An Open Letter to the U.S. Congress from Federal Whistleblowers: Strengthen Whistleblower and TaxPayer Protections by Improving the Whistleblower Protection Enhancement Act of 2012

Dear Member of Congress:

We, the undersigned, are federal whistleblowers who have worked in a broad array of agencies and can attest to the lack of meaningful protections for conscientious truth tellers in government. We have been following the efforts of the U.S. Congress to strengthen the Whistleblower Protection Act (WPA) for more than a decade. During the last decade there have been six unanimous House and Senate votes in favor of restoring credibility for this hopelessly-gutted but much-needed open government reform that is a prerequisite for accountability to the taxpayers. Ironically, secret holds in the Senate repeatedly have blocked final passage, killing both whistleblowers’ rights to justice and the voters’ right to know how their money is being spent.

The necessity to pass this reform is beyond credible debate. All studies confirm that whistleblowers are the best resource against fraud, waste and abuse, exposing more than audits, compliance departments and law enforcement combined. But while Congress has provided credible rights for private sector whistleblowers, the rights themselves for government workers are a fraud.

Since Congress last “strengthened” the Whistleblower Protection Act in 1994, the track record is 3-220 against whistleblowers for final rulings on the merits. A Merit Systems Protection Board study found that whistleblowers are

–9 times more likely to get fired,

–6 times more likely to get suspended,

–5 times more likely to receive a grade-level demotion,

–2 ½ times more likely to be reassigned to a different geographical region, and

–twice as likely to be denied a promotion.

Now that the Senate has unanimously passed S. 743, the Whistleblower Protection Enhancement Act of 2012 (WPEA or the Act), we call upon you to build on these reforms with H.R. 3289 by addressing recent developments that could render these protections obsolete on the first day the Act takes effect.

First, the WPEA’s protections should extend retroactively. The Senate Committee for Homeland Security and Governmental Affairs noted in its committee report, No. 112-155, that it

[E]xpects and intends that the Act’s provisions shall be applied in U.S. Office of Special Counsel (OSC), Merit Systems Protection Board (MSPB), and judicial proceedings initiated by or on behalf of a whistleblower and pending on or after that effective date. Such application is expected and appropriate because the legislation generally corrects erroneous decisions by the MSPB and the courts; removes and compensates for burdens that were wrongfully imposed on individual whistleblowers exercising their rights in the public interest; and improves the rules of administrative and judicial procedure and jurisdiction applicable to the vindication of whistleblowers’ rights.

We could not agree more. The number of employees filing whistleblower disclosures and complaints for prohibited personnel practices is at an all-time high. Many brave current and former employees are waiting for Congress to improve whistleblower laws to have their day in court. Many of these individuals have worked to educate the public and advocate for these reforms; it would be a cruel kind of justice to provide long-sought changes but leave them outside the Promised Land, looking in. Unfortunately, the Senate was not able to cover these individuals by including key language in the bill itself. We call upon you to give effect to the WPEA’s salutary effects by explicitly extending the Act’s reach to pending cases or those initiated on or after the effective date, as required by Supreme Court precedent.

Second, real due process rights are needed. The hallmark of due process is the jury trial – the opportunity to have one’s day in court in front of a jury of one’s peers – and all other whistleblower bills passed by Congress in the last decade have included it. Federal employees deserve the same, not second class legal status. The House should join the Senate in providing jury trial rights for federal employees.

On a related note, the Senate version makes an unacceptable tradeoff: while providing for jury trials, it also lowers the burden of proof for agencies in court. None of the corporate or contractor whistleblower laws require tougher burdens of proof as the price for jury trials.

Third, both the House and Senate versions contain a provision that will undermine the critical All Circuit Review: the ability for the Office of Personnel and Management to bring a case with “substantial impact” on the merit system back into the Federal Circuit. The Federal Circuit has a long and notorious reputation for being hostile to whistleblowers and showing bias for agencies. It would be detrimental to WPEA reforms to allow OPM unfettered authority to appeal major cases to the court that is responsible for undermining Congress’ intent for over 30 years.

Fourth, Congress should overrule the precedent set by the MSPB in MacLean v. Department of Homeland Security, which allowed agencies to use Sensitive Security Information (SSI) and over 100 other non-classified, pseudo-secrecy categories under the new Controlled Unclassified Information (CUI) Executive Order to cancel WPA free speech rights. As civil service law is now written, this new Executive Order designed to shrink irresponsible government secrecy could become the largest gag order on whistleblowers in history. Congress was clear in 1978 – only statutes, their judicial interpretations, and Executive Order designate what is a disclosure prohibited by law. Congress should send a clear message by reining in federal agencies,which have incentives to retroactively designate disclosures SSI or CUI to get rid of whistleblowers.

Finally, MSPB should not be granted summary judgment powers. The reasons for this are many, but some of these include:

–MSPB was designed by Congress to be a forum for quick and simple dispute resolution. Summary judgment is a complicated legal maneuver that will upset the balance struck by Congress in 1978 and 1989; it would require federal employees at all levels of government to act as their own lawyers to protect their interests, or hire ones on their own dime.

–MSPB judges would likely abuse summary judgment powers. The MSPB has a poor track record of protecting whistleblowers and willfully thwarted the intent of Congress’ major whistleblower laws. Additionally, some MSPB judges virtually never grant jurisdiction in whistleblower reprisal cases, forcing the Board to remand cases back with jurisdictional instructions, prolonging litigation and increasing the cost to appellants.

–Summary judgment prevents appellants from cross-examining witnesses who provide adverse written statements. The likeliest scenario is that federal managers and adverse witnesses would provide affidavits that are unfavorable to appellants. Without depositions, appellants would not be able to cross-examine the authors to expose any weaknesses in their written statements.

–Acquiring witnesses for depositions is costly. Agencies must make employee-witnesses available free of cost to appellants at the hearing. However, if summary judgment is granted, there will be no hearing.

–MSPB’s stated justification for summary judgment — to “speed case processing” — is not an appropriate reason. Burdening appellants with onerous legal requirements and then denying them the opportunity to make their case in a hearing is one way to speed case processing, but protecting due process is more important. The solution to backlogs and delays is not instituting a system that is more onerous; instead, MSPB judges must apply the law in good faith and without bias, thus decreasing the number of unnecessary remands.

The last congressional election was decided by voters who are fed up with fraud, waste and abuse by government bureaucracies. Fighting those breakdowns in accountability was the new majority’s campaign commitment. We whistleblowers risk our careers for that campaign rhetoric. It is long past time for results by those who campaign on the principles we live. There is no reason for further delay in finishing the job, and doing it right. What are we waiting for?

Sincerely,

Ray Adams
Air Traffic Controller
Federal Aviation Administration / Department of Transportation

Evelynn Brown, J.D., LLM
Former Federal Program Officer
Administration for Children and Families / Department of Health and Human Services

Gabe Bruno
Retired Manager, Flight Standards Service
Federal Aviation Administration / Department of Transportation

Kim A. Farrington
Former Aviation Safety Inspector – Cabin Safety
Federal Aviation Administration / Department of Transportation

Rand L. Foster
Aviation Safety Inspector
Federal Aviation Administration / Department of Transportation

Edward Jeszka
Retired Aviation Safety Inspector
Federal Aviation Administration / Department of Transportation

Douglas Kinan
Former Equal Employment Opportunity Specialist
Defense Contract Management Agency / Department of Defense

Robert J. MacLean
Federal Air Marshal
Transportation Security Administration / Department of Homeland Security

David Pardo
Former Attorney/Advisor
Federal Aviation Administration / Department of Transportation

Dr. Janet Parker M.S., DVM
Executive Director, Medical Whistleblower
Medical Whistleblower Advocacy Network – Human Rights Defenders

Spencer A. Pickard
Federal Air Marshal
Transportation Security Administration / Department of Homeland Security

George G. Sarris
Aircraft Mechanic
Offutt AFB, Nebraska

Jane Turner
Former Special Agent
Federal Bureau of Investigation / Department of Justice

Glenn A. Walp, Ph.D.
Former Office Leader of the Office of Security Inquiries
Los Alamos National Laboratory / Department of Energy

Richard Wyeroski
Former Aviation Safety Inspector
Federal Aviation Administration / Department of Transportation