[Senate Hearing 111-299]
[From the U.S. Government Printing Office]
S. Hrg. 111-299
S. 372--THE WHISTLEBLOWER PROTECTION ENHANCEMENT ACT OF 2009
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HEARING
before the
OVERSIGHT OF GOVERNMENT MANAGEMENT,
THE FEDERAL WORKFORCE, AND THE
DISTRICT OF COLUMBIA SUBCOMMITTEE
of the
COMMITTEE ON
HOMELAND SECURITY AND
GOVERNMENTAL AFFAIRS
UNITED STATES SENATE
ONE HUNDRED ELEVENTH CONGRESS
FIRST SESSION
__________
JUNE 11, 2009
__________
Available via http://www.gpoaccess.gov/congress/index.html
Printed for the use of the Committee on Homeland Security
and Governmental Affairs
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Washington, DC 20402-0001
COMMITTEE ON HOMELAND SECURITY AND GOVERNMENTAL AFFAIRS
JOSEPH I. LIEBERMAN, Connecticut, Chairman
CARL LEVIN, Michigan SUSAN M. COLLINS, Maine
DANIEL K. AKAKA, Hawaii TOM COBURN, Oklahoma
THOMAS R. CARPER, Delaware JOHN McCAIN, Arizona
MARK L. PRYOR, Arkansas GEORGE V. VOINOVICH, Ohio
MARY L. LANDRIEU, Louisiana JOHN ENSIGN, Nevada
CLAIRE McCASKILL, Missouri LINDSEY GRAHAM, South Carolina
JON TESTER, Montana
ROLAND W. BURRIS, Illinois
MICHAEL F. BENNET, Colorado
Michael L. Alexander, Staff Director
Brandon L. Milhorn, Minority Staff Director and Chief Counsel
Trina Driessnack Tyrer, Chief Clerk
OVERSIGHT OF GOVERNMENT MANAGEMENT, THE FEDERAL WORKFORCE, AND THE
DISTRICT OF COLUMBIA SUBCOMMITTEE
DANIEL K. AKAKA, Hawaii, Chairman
CARL LEVIN, Michigan GEORGE V. VOINOVICH, Ohio
MARY L. LANDRIEU, Louisiana LINDSEY GRAHAM, South Carolina
ROLAND W. BURRIS, Illinois
MICHAEL F. BENNET, Colorado
Lisa M. Powell, Chief Counsel and Acting Staff Director
Jessica K. Nagasako, Professional Staff Member
Jennifer A. Hemingway, Minority Staff Director
Benjamin B. Rhodeside, Chief Clerk
C O N T E N T S
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Opening statements:
Page
Senator Akaka................................................ 1
Senator Burris............................................... 10
WITNESSES
Thursday, June 11, 2009
Rajesh De, Deputy Assistant Attorney General, Office of Legal
Policy, U.S. Department of Justice............................. 3
Hon. Claire McCaskill, a U.S. Senator from the State of Missouri. 8
William L. Bransford, General Counsel, Senior Executives
Association.................................................... 15
Danielle Brian, Executive Director, Project on Government
Oversight...................................................... 17
Thomas Devine, Legal Director, Government Accountability Project. 19
Robert G. Vaughn, Professor of Law, Washington College of Law,
American University............................................ 21
Alphabetical List of Witnesses
Bransford, William L.:
Testimony.................................................... 15
Prepared statement........................................... 44
Brian, Danielle:
Testimony.................................................... 17
Prepared statement........................................... 48
De, Rajesh:
Testimony.................................................... 3
Prepared statement........................................... 31
Devine, Thomas:
Testimony.................................................... 19
Prepared statement with attachments.......................... 57
McCaskill, Hon. Claire:
Testimony.................................................... 8
Vaughn, Robert G.:
Testimony.................................................... 21
Prepared statement........................................... 141
APPENDIX
Background....................................................... 163
Copy of S. 372................................................... 171
Additional Prepared Statements
Craig R. Sawyer, a disabled former U.S. Marine and U.S. Navy SEAL 199
Colleen M. Kelley, National President, National Treasury
Employees Union................................................ 203
John M. Fitzgerald, J.D., Policy Director, Society for
Conservation Biology........................................... 205
John W. Curtis, Ph.D., Director of Research and Public Policy,
American Association of University Professors.................. 209
Joe Carson, PE, Knoxville, Tennessee with an attached letter..... 210
Larry Fisher, National Accountant Whistleblower Coalition (NAWBC)
with attachments............................................... 216
Questions and Responses to questions:
Mr. Bransford................................................ 236
Mr. Vaughn................................................... 237
S. 372--THE WHISTLEBLOWER PROTECTION ENHANCEMENT ACT OF 2009
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THURSDAY, JUNE 11, 2009
U.S. Senate,
Subcommittee on Oversight of Government
Management, the Federal Workforce,
and the District of Columbia,
of the Committee on Homeland Security
and Governmental Affairs,
Washington, DC.
The Subcommittee met, pursuant to notice, at 2:49 p.m., in
room SD-342, Dirksen Senate Office Building, Hon. Daniel K.
Akaka, Chairman of the Subcommittee, presiding.
Present: Senators Akaka and Burris.
Also Present: Senator McCaskill.
OPENING STATEMENT OF SENATOR AKAKA
Senator Akaka. I call this hearing of the Subcommittee on
Oversight of Government Management, the Federal Workforce, and
the District of Columbia to order.
I want to welcome our witnesses and thank you so much for
being here. Today's hearing will examine S. 372, the
Whistleblower Protection Enhancement Act of 2009, which I and
other Members introduced earlier this year. First, I would like
to thank Senator Collins, the lead Republican cosponsor of S.
372, and Members of the Homeland Security and Governmental
Affairs Committee who are cosponsors, including my good friend
Senator Voinovich, a champion of Federal employees, and
Chairman Lieberman for their support. I want to mention that
Senators Collins and Voinovich are not able to attend today's
hearing due to last-minute scheduling conflicts, but I know
they very much wanted to be here. I would also like to
recognize Senators Grassley and Levin, who have been long-time
supporters of strengthening whistleblower protections.
The Whistleblower Protection Act is an important
cornerstone of our Nation's good government laws. Federal
employee whistleblowers play a crucial role in alerting
Congress and the public to government wrongdoing and
mismanagement, protecting our civil rights and civil liberties,
helping to keep us safe, and rooting out waste, fraud, and
abuse. I should also add that many of them have some good ideas
that can improve government operations.
Congress passed the Whistleblower Protection Act of 1989
(WPA), and amendments to improve the WPA in 1994, to strengthen
protections for Federal employee whistleblowers. However, a
series of rulings by the Merit Systems Protection Board and the
Federal Circuit Court of Appeals have created a number of
loopholes in the law's protections. The law has become so weak
that many employees, with good reason, fear they will not be
protected from retaliation if they come forward to report
wrongdoing.
In 2000, I first introduced a bill to strengthen the WPA
with Senator Levin. Over the years, the consensus that action
is needed has grown broader, and the commitment of those
involved has grown deeper. During each Congress, we have moved
closer to enacting stronger whistleblower protections.
Last year, our bill passed the Senate by unanimous consent.
The House passed a similar bill, H.R. 985. Unfortunately, we
were not able to work out the differences between the bills
before the 110th Congress adjourned.
It is very encouraging to be working with an Administration
this year that is engaged in trying to work through the details
of the legislation. President Obama has stated that his
``Administration is committed to creating an unprecedented
level of openness in Government.''
I know this Administration is deeply committed to
transparency and accountability, and I believe that by working
together we will enact stronger whistleblower protections,
which is so important to those larger goals.
There is broad agreement on a number of provisions that are
in both S. 372 and the House companion bill, H.R. 1507. These
include the need to: Clarify that ``any'' whistleblower
disclosure truly means any disclosure; provide a process to
review retaliatory security clearance revocations and
suspensions; provide whistleblower protections to employees of
the Transportation Security Administration (TSA); protect
disclosures of scientific censorship; suspend the Federal
circuit court's exclusive jurisdiction; and make a number of
other important changes. However, there remain a few unresolved
issues, and this hearing will focus largely on grappling with
those particular issues.
The first is how to best protect national security
whistleblowers. For too long, national security whistleblowers
have not had secure avenues to disclose government waste,
fraud, abuse, and mismanagement. Some undoubtedly have stayed
quiet, while some have leaked classified information to the
media. We must ensure that there are secure channels to bring
problems in the Federal Government to Congress' attention.
Congress, with the appropriate security clearance requirements
and procedures for safeguarding information, must be able to
fulfill its constitutional oversight responsibilities. I hope
today we will have a productive discussion on ways to address
this important issue.
The other unresolved issue is whether a safety valve is
needed to protect whistleblowers if the administrative process
is not working. The House companion bill would allow
whistleblowers to file their cases in district court if the
Merit Systems Protection Board (MSPB) has not acted within 180
days. Many whistleblower advocates believe that this is a
needed check to ensure that our efforts to strengthen
whistleblower protections are not gradually undone, as they
have been in the past. On the other hand, management groups and
the past Administration have expressed concerns that fear of
having to defend their actions to a jury might dissuade Federal
managers from disciplining problem employees. Additionally, the
past Administration was concerned that this would allow forum
shopping; employees dissatisfied with the direction of their
MSPB proceedings could move into district court after 180 days.
I hope to address these two issues in some depth today and
explore the effects different approaches would have on the
protections for Federal employee whistleblowers, on Federal
agencies, on congressional oversight, and on national security.
Whistleblowers make government more efficient and effective
by disclosing waste, fraud, abuse, and illegal activity. As a
long-time proponent of improving government performance through
sound management practices and accountability, I am confident
we will succeed in enacting legislation this year that will
enhance the system of whistleblower protections.
I look forward to hearing from our witnesses today. I want
to welcome our first panel to the Subcommittee today. Rajesh
De, Deputy Assistant Attorney General in the Office of Legal
Policy at the Department of Justice, is the sole witness on
this panel.
It is the custom of this Subcommittee to swear in all
witnesses, and I ask you to please stand and raise your right
hand. Do you swear that the testimony you are about to give
this Subcommittee is the truth, the whole truth, and nothing
but the truth, so help you, God?
Mr. De. I do.
Senator Akaka. Thank you very much. The record will note
that the witness responded in the affirmative.
Before we start, I want you to know that your full written
statement will be part of the record.
TESTIMONY OF RAJESH DE,\1\ DEPUTY ASSISTANT ATTORNEY GENERAL,
OFFICE OF LEGAL POLICY, U.S. DEPARTMENT OF JUSTICE
Mr. De. Good afternoon, Chairman Akaka. Thank you, and
thank you to Ranking Member Voinovich and the other Members of
the Subcommittee for the opportunity to appear here today to
discuss the Whistleblower Protection Enhancement Act. This
Administration strongly supports protecting the rights of
whistleblowers. We recognize that the best source of
information about waste, fraud, and abuse in government is
often a government employee committed to public integrity and
willing to speak out. Empowering whistleblowers is a keystone
of the President's firm commitment to ensuring accountability
in government.
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\1\ The prepared statement of Mr. De appears in the Appendix on
page 31.
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A government employee who speaks out about waste, fraud, or
abuse performs a public service. Such acts of courage and
patriotism, which can sometimes save lives and often save
taxpayer dollars, should be encouraged rather than stifled.
Yet, too often whistleblowers are afraid to call attention to
wrongdoing in their workplace. We need to empower all Federal
employees as stewards of accountability. Put simply,
accountability cannot be imposed solely from the top down.
The bottom line is we must make sure that all Federal
employees at all levels are able to do what it takes to
eliminate waste, fraud, and abuse. At the same time, we must
preserve the President's constitutional responsibility with
regard to national security information and ensure that agency
managers have effective tools to discipline employees who
themselves may engage in waste, fraud, or abuse.
We recognize that the Executive Branch and the Congress
have long held differing views regarding the extent of the
President's constitutional authority over national security
information. Putting aside these constitutional differences to
the extent possible, our focus today is on achieving common
ground and a workable solution toward our shared goal of
increasing the protections available for Federal
whistleblowers, including those who work in the national
security realm. Creating a system that sets the right
incentives for Federal employees and managers is not easy, as
evidenced by multiple efforts to reform the system in each of
the past three decades. This Administration believes that the
time to reform the system has come again.
I would like to discuss some key components of
whistleblower reform as they relate to the legislation
currently pending before the Senate--both with respect to civil
service issues and national security issues.
Turning first to the civil service issues, this bill would
make a number of important changes to the ways in which
whistleblower claims are adjudicated. For example, the bill
would for the first time allow whistleblowers to obtain
compensatory damages. That is a matter both of simple fairness
and of practicality. A whistleblower who suffers retaliation
should be made whole, plain and simple, and we agree with this
measure.
The bill would also make several important changes to the
definition of ``protected disclosure.'' Under current law, a
whistleblower is not protected if she informs her boss of
wrongdoing, only to find out later that her boss was the one
responsible for that wrongdoing. Thus, under current law, the
employee would be protected for going to the Washington Post,
but not to her own supervisor. Changing the law will encourage
employees to tell their supervisors about problems in the first
instance, which is usually the easiest way to resolve them.
This Administration also supports modification of what is
known as the ``normal-duty disclosure rule.'' Under that rule,
an employee is not protected when he discloses wrongdoing as
part of his normal job duties, unless that disclosure was made
outside of the normal channels. This Administration believes,
however, that normal-duty disclosures should be protected,
particularly when public health and safety are at stake.
Beyond the civil service arena, the Administration also
believes that whistleblowers in the national security realm
must have a safe and effective method of disclosing wrongdoing
without fear of retaliation. We are pleased to see that this
bill provides full whistleblower protection to TSA screeners,
who literally stand at the front lines of our Nation's homeland
security system. They deserve the same whistleblower
protections afforded to all other employees of the Department
of Homeland Security (DHS).
As this Subcommittee knows, the intelligence community is
generally excluded from the Whistleblower Protection Act. Yet
it is essential that we root out waste, fraud, and abuse in the
intelligence community just as elsewhere, and that intelligence
community employees have safe channels to report such
wrongdoing.
With this goal in mind, we propose the creation of an
Intelligence Community Whistleblower Protection Board (Board)
within the Executive Branch. This Board would be comprised of
senior presidentially appointed officials from key agencies
within and outside of the intelligence community, including
inspectors general, to provide a safe and effective means for
intelligence community employees to obtain redress if they
suffer retaliation for disclosing waste, fraud, or abuse. The
Administration is currently in the process of developing a
proposal for how this Board would operate in a manner that
protects both intelligence community whistleblowers and the
highly sensitive programs in which they work. We look forward
to working with the Subcommittee to craft a scheme that
satisfies our shared goals.
We also believe that this Board could provide a better
vehicle to review allegedly retaliatory security clearance
revocations than the measures set forth in the pending
legislation. We are aware that Congress has heard testimony in
the past from individuals who have claimed that their security
clearances have been revoked due to whistleblowing activities.
This Administration has zero tolerance for such actions. We
believe that an employee who alleges that her clearance was
revoked for retaliatory purposes, for example, should be able
to appeal that revocation outside of her own agency.
Our proposed Board could recommend full relief to the
aggrieved employee, including restoration of the clearance, and
could ensure that Congress would be notified if that
recommendation is not followed by the agency head. This
mechanism would ensure that no agency will remove a security
clearance as a way to retaliate against an employee who speaks
truths that the agency does not want to hear.
Finally, we believe that the proposed Board could provide
an additional avenue for employees in the intelligence
community to inform Congress of governmental wrongdoing. The
Intelligence Community Whistleblower Protection Act of 1998
(ICWPA) currently provides a vehicle for the Intelligence
Community (IC) employees to report matters of ``urgent
concern'' to Congress. The ICWPA, however, affords the
individual employee no avenue for review of a potential
disclosure outside her specific agency. This Administration
believes that no Federal agency should be able to hide its own
wrongdoing. For this reason, we believe an IC employee should
be able to appeal to the Board if the agency head declines to
transmit information to Congress or declines to provide
instructions to the employee on how to do so.
Individual employees should also be entitled to alert
appropriate Members of Congress to the fact that they have made
such an appeal so that Congress is aware that a concern has
been raised to our Board.
This legislation is merely one step in this
Administration's plan to ensure accountability in government.
We very much appreciate the efforts this Subcommittee has made
over many years to devise whistleblower protections that work.
We look forward to working with you to help revise and improve
this legislation to achieve our shared goals.
Thank you, and I would be happy to take your questions.
Senator Akaka. Thank you very much, Mr. De, for your strong
statement. The whistleblower community has expressed a strong
desire for mechanisms to provide a check on the MSPB and the
Federal Circuit should they again begin to undermine
congressional intent for stronger whistleblower protections.
Suspending the Federal Circuit's exclusive review of
whistleblower cases might be one mechanism for doing that.
Additionally, the House bill would allow whistleblowers to file
their cases in district court after the MSPB's decision or if
the MSPB has not decided the case within 180 days.
Mr. De, is it appropriate to provide alternative court
review to ensure that new whistleblower protections are not
gradually chipped away under the existing review process, and
if so, how should it be structured?
Mr. De. Thank you, Mr. Chairman. We agree in the first
instance that there need to be multiple checks and balances or
safety valves, as you have put it, to ensure that the MSPB or
any individual agency is not the last word in terms of having
recourse for Federal whistleblowers.
Now, with respect to Federal court review, we think one way
to accomplish that, as the Senate bill does, is to allow for
multi-circuit review of MSPB decisions. Although we think there
have been benefits to allowing centralized review in the
Federal circuit, namely, a development of expertise and
consistency in the law, we certainly recognize that there are a
number of concerns particularly among those who are advocates
for whistleblower rights and within the Administration that
this has not been sufficient. Accordingly, we think multi-
circuit review could allow for more expansive development of
the law and serve as one of the safety valves that you have
suggested.
Thinking about this issue in a broader sense, we think that
safety valves should be addressed in the context of the Federal
Government more generally, whether it is the courts, the
Congress or the Executive Branch. So, on the one hand, while
all circuit review could be one way to accomplish this through
the courts, we also think there are important ways both within
the Executive Branch and within the Legislative Branch--
incorporating Congress into this--that we could achieve this as
well.
For example, some of the proposed changes to the definition
of ``protected disclosure'' in both bills we think would
actually allow for additional outlets for safety valves for
whistleblowers. For example, by allowing whistleblowers to tell
their supervisors about alleged wrongdoing or by allowing them
to be protected for disclosures they make in the ordinary
course, particularly for public health and safety, this will
provide new avenues for whistleblowers to make sure that waste,
fraud, and abuse is exposed.
In the Board structure that we have proposed and are
working through now, we think there is a vital role for
Congress, particularly with respect to making sure that
Congress is aware whenever an alleged concern is raised to the
Board. So we would hope, working with your Subcommittee, to
build in multiple mechanisms to serve as another safety valve
to bring in the Legislative Branch as well. So when there is a
potential disclosure that an IC employee would like to make and
raises it with the Board, we think it is very important that
employee be able to notify Congress that they have raised such
a concern with the Board.
So speaking at the macro level, we think there are multiple
ways to achieve this safety valve concept across the Federal
Government. One way would be to do so to allow for multi-
circuit review in the courts.
Senator Akaka. Thank you, Mr. De. I understand that the
Administration has not yet determined its position on
whistleblower access to U.S. district courts and jury trials
outside of the national security context. Assume for the moment
that a jury trial provision will be included in the final bill.
Could you tell us what concerns the Administration would have
with crafting this provision, and do you have any suggestions
for how those concerns might be reduced or resolved?
Mr. De. Thank you, Mr. Chairman. Let me make a few
preliminary remarks on the jury trial issue, and then I will
address the specific question.
We certainly recognize that the question of jury trials is
an important one for advocates of whistleblower reform and for
the Administration. Whereas the House bill, as you mentioned,
provides for jury trials, at least for non-national security
whistleblowers, the Senate bill allows for direct review, all-
circuit review from the MSPB. And as you mentioned, we have
yet, as an Administration, to come to a definitive view on
where we stand on this issue, but I would like to note that we
think there are valid policy concerns on both sides, and if I
may make a few specific points in that regard.
As you noted, in particular with respect to national
security whistleblowers, we think district court review and
jury trials is particularly inappropriate in that context given
the sensitive nature of the information at issue and the
potential for wide-ranging disclosure in district court. So
putting that aside as a preliminary matter, the second point I
would like to make is we fully recognize that jury trials are
an essential part of our judicial system and a reflection of
our democratic values, and are seen by many as an important
remedial outlet for the airing of whistleblower allegations and
for claims of reprisal.
The key issue from our perspective is the striking of an
appropriate balance between the extent to which the prospect of
a jury trial serves as an effective tool for encouraging
whistleblowers to come forward with allegations of waste,
fraud, and abuse versus the extent to which it serves as a
disincentive to agency managers who may be increasingly
concerned about taking legitimate personnel actions against
poorly performing employees, some of whom themselves may
actually be engaged in waste, fraud, and abuse. So that is the
balancing that we are thinking through now.
Getting to your specific question about if a jury trial
provision is included in a bill ultimately by Congress, there
are a couple specific suggestions we would have, two specific
concerns about juries in particular in the whistleblower
context.
As you know, the way a whistleblower case generally
proceeds is that once the claimant makes a prima facie case,
the defendant must establish by clear and convincing evidence
that the personnel action was taken for a legitimate purpose.
We have concerns that juries may not be the most well-equipped
venue to deal with the clear-and-convincing-evidence standard.
As a general matter, juries either deal with the preponderance
standard in the civil context or the beyond-a-reasonable-doubt
standard in the criminal context.
The second point I would like to make is putting
whistleblower claims in front of a jury raises complex,
although certainly not insurmountable, questions about what
issues would be most appropriate for the jury versus the judge.
In other words, what questions are questions of law versus
questions of fact?
Now, this is an issue that comes up in many areas of law,
so it is not unique here, but one prime example might be what
would constitute a gross mismanagement of funds. Now, I think
we would probably all agree that figuring out what is a gross
mismanagement, once you unpack it, has both questions of law
and questions of facts built in.
When we contemplate the idea of expanding the right to jury
trial with the idea of all-circuits review, I think we need to
take special care to ensure that we have a good sense of what
would be appropriate questions for the jury versus the court to
ensure that we do not have inconsistent development across
multiple circuits.
So with these thoughts in mind, the suggestions we would
have are three-fold:
One, if a right to a jury trial is included, we would
suggest that it be limited to the non-national security
context.
Two, we would also suggest that Congress consider adopting
a preponderance-of-the-evidence standard at least for jury
trials and a burden-shifting framework similar to the Title VII
context, rather than incorporating the clear-and-convincing
standard that is used before the MSPB.
And, third, we would suggest that Congress consider
adopting damages caps analogous to the Title VII context to
ensure that incentives are properly aligned and to alleviate
concerns about runaway juries.
So, to the extent a jury provision is included, those are
some of our specific suggestions.
Senator Akaka. Thank you, Mr. De. Let me now call on
Senator McCaskill for her questions. Senator McCaskill.
TESTIMONY OF HON. CLAIRE MCCASKILL, A U.S. SENATOR FROM THE
STATE OF MISSOURI
Senator McCaskill. Thank you, Mr. Chairman, and I
especially am appreciative today because I think technically I
am not on this Subcommittee, but because this is an area in
which I am very interested, the Subcommittee was kind enough to
allow me to come and question.
Let me cut to the chase. My concern is about jury trials,
and I must tell you I am perplexed and confused that everyone
would not want a whistleblower to be able to get a jury trial--
every whistleblower on the face of the planet. The exceptions
and the differences we have carved out to me make no sense.
For example, right now, if you are a contractor in the
Department of Defense (DOD) and there is a whistleblower in
your company, that whistleblower is entitled to a jury trial.
Now, how weird is it that they could be sitting side by side
with a Federal employee doing the exact same work, seeing the
exact same problem, and one would be entitled to a jury trial
because they worked for a private contractor and the other one
would not because they worked for the Federal Government?
Can you give me any rational basis on which to distinguish
between these two people?
Mr. De. First, the Administration appreciates your support
in particular for the provisions in the Defense Reauthorization
Act last year and in the stimulus bill this year for extending
jury trial rights to contractors, both in the defense community
and for recipients of stimulus funds.
I think the short answer is it is too soon to tell what the
ramifications have been from those provisions. So, in other
words, to the extent that there are concerns about the chilling
effect of jury trials on legitimate agency managers, putting
aside those that we think are doing bad things, we feel like we
have not yet had an opportunity to determine from these limited
extensions that have been put in place so far whether the
balance that I discussed earlier is something that should be of
concern.
So I am not going to defend a distinction between Federal
employees and contractors. We are trying to puzzle through the
impact of the provisions that have been recently enacted and
whether there is a valid concern that we have heard articulated
and can understand in theory but is playing out under the
provisions that you have helped enact recently.
Senator McCaskill. Well, we know that 46 percent of the
fraud that has been uncovered, according to the certified fraud
examiners (CFEs) report, they sampled 1,000 cases in 2008; 46
percent of the fraud we found came from employees. That is
half. The majority of all Federal fraud recoveries coming from
whistleblower discoveries.
I am trying to understand what is it about a whistleblower
being able to go to trial that keeps management in an agency
from getting rid of a bad employee. I do not understand the
causal connection there.
Mr. De. I think there are a couple of factors that we have
been trying to unpack and put forth for your consideration. One
is a perception--and we are trying to uncover what is behind
that--as to whether there is a fear of a greater litigation
burden that agency managers will feel like they will get
dragged into, both in terms of time and in terms of personal
reputation.
Now, that may or may not be a legitimate concern that we
need to address, but that is something that has been expressed.
So we are trying to assess the validity as to what is behind
that.
I think the second point is that, as a general matter, I
think we all want to ensure that waste, fraud, and abuse is
exposed, just as a first principle. How do we get there? And
part of the way of getting there is ensuring that agency
managers are not all bad. They can actually take effective
action against subordinates who they believe are engaging in
this abuse.
So that is the waste, fraud, and abuse we do not
necessarily hear of because it is taken care of in a simple
personnel action. But I say that because we want to make sure
we do not discourage managers from being able to take--out of
fear of being dragged into a district court action, fear of
taking legitimate personnel actions.
Senator McCaskill. So what you are saying is a manager has
a bad employee, and they are worried that if they try to take
action against this bad employee, this bad employee is all of a
sudden going to claim whistleblower status and try to get into
court because they are being disciplined in the workplace, they
are going to claim that they have whistleblower status. Is that
what they are alluding to?
Mr. De. I think there is partly a concern, given that in
the whistleblower context the standard--the evidentiary
standard is relatively low at the prima facie stage, and for
good reason. We do not want whistleblowers to have a hard time
of making their case. But I think the concern is given that low
standard and the clear-and-convincing rebuttal standard, as
Congress set up, that is particularly concerning in the context
of a jury trial in Federal district court.
Senator McCaskill. Well, I know that you are probably
aware--I know you are a very smart guy, but, first of all, the
cases are really hard to make. I wish I could stack documents
here to show you all the successful whistleblower cases that
have been brought. They are expensive. It is difficult to find
a lawyer that will represent you. I really think the arguments
against jury trials in this area are a pig in a poke, and I
think we need to get to the business of respecting and being
deferential to whistleblowers and giving them every right we
can possibly give them, because they are doing the heavy
lifting when it comes to waste, fraud, and abuse in this
government right now, and we need to give them every tool they
can possibly have to do it well.
I thank you, Mr. Chairman, for giving me the opportunity to
ask questions.
Senator Akaka. Thank you very much, Senator McCaskill, and
thank you for being here.
Senator Burris, your questions, please.
OPENING STATEMENT OF SENATOR BURRIS
Senator Burris. Thank you, Mr. Chairman. And to our
witness, the whistleblower issues seem to be the hot topic,
and, Mr. Chairman, you certainly raised the question. I am just
trying to see if this Administration's position is that the
whistleblower should not have a jury trial if they are involved
in one of the security agencies. Is that what you are saying?
Mr. De. Certainly with respect to the national security
agencies, yes, we believe that jury trials would be
particularly inappropriate in that context, yes, sir.
Senator Burris. So what type of protection, other than the
hearing officer or the administrative judge--is that the only
person who would then hear the evidence that is presented by
this whistleblower that is saying that something is afoot here?
Mr. De. Definitely not. We certainly agree that review
should not stop within the individual employee's agency. We
agree that no individual agency should be the last word in
terms of waste, fraud, and abuse----
Senator Burris. Pardon me, Mr. De. I am taking it beyond
the agency. I am taking it to some arbitrating body. And you
are saying it should be only the hearing officer or the
administrator or the judge that would be hearing this
whistleblower's evidence against whatever they are alleging is
taking place that is waste, fraud, or abuse.
Mr. De. We would propose that the appeal of the
whistleblower's claim, at least for the national security
world, could be taken outside of their agency to a new
Executive Branch Intelligence Community Whistleblower
Protection Board. That Board would be comprised of senior
Presidential appointees, both within and outside the
intelligence community, and it would include inspectors
general.
Senator Burris. Yes, because I am looking at this, and in
one of the testimonies of the persons who are coming on the
second panel of witnesses, it called for reviewing past cases
and trying to find ways to make amends for some of the
unfortunate situations whistleblowers have endured in the past.
What is the Administration's stand on some retroactive
review of these cases?
Mr. De. As an initial matter, we believe that this bill is
just one piece of the Administration's broader effort to ensure
increased accountability in government, increased protections
for whistleblowers, and increased transparency. Accordingly, we
would hope that once this bill is--even as this bill is being
moved through, we can start discussions on a range of fronts,
whether it has to do with the MSPB, the Office of Special
Counsel (OSC), or a range of other issues of interest to this
community.
With respect to the retroactive consideration of cases,
that is certainly something that we think should be paid
attention to, and we will take it under consideration.
Senator Burris. And back to this special Board, you do not
think that the MSPB would be sufficient to handle these
security whistleblowers?
Mr. De. That is correct. We think it would be an
inappropriate venue for these cases for a variety of reasons.
One, we do not think as currently constituted the MSPB is well
equipped to deal with the potentially large amount of sensitive
information that could potentially arise in these cases.
Second, with respect to the security clearances in particular,
we believe that the granting of security clearances and issues
around who should have access to sensitive national security
information is a core Executive Branch Presidential
prerogative, and for that reason we would suggest creating this
new Board. If the Board is going to be dealing with security
clearance revocation issues----
Senator Burris. What experience would this new Board have?
Who is this new Board?
Mr. De. The Board would be comprised of folks who have
experience in this area. We would love to work with the
Subcommittee to determine the exact composition of the Board,
but it would be independent, presidentially appointed nominees.
Senator Burris. That has to have a whole staff and a whole
other bureaucracy established and hearing officers and more
cost to the taxpayers.
Mr. De. We would hope that the initial adjudications and
the record would be established during the agency process. This
Board would take a de novo review of the process and the
staffing expertise that happened at the agency level.
Senator Burris. OK. The House version of this bill calls
for protection for Federal contractors, and this would be a
broad expansion of the existing law. Does the Administration
have an opinion on providing these protections for Federal
contractors? And do you believe that this protection would aid
us in ensuring adequate oversight of government spending and
operations?
Mr. De. Given the scope of the Federal activities performed
by contractors and the amount of Federal dollars that go to
Federal contractors, we certainly understand the imperative to
extend whistleblower protections to Federal contractors. And as
a general matter, yes, we do support that extension.
I would note that this has only been done in piecemeal
fashion so far. Under the DOD authorization act last year, such
rights were extended to DOD contractors, and under the stimulus
bill this year to recipients of Federal stimulus funds. We have
not yet seen how that has played out, and to the extent that
there are any tweaks necessary in the framework for the
contractor side of things, that is yet to be determined.
I would make two particular points as Congress considers
whether to extend whistleblower rights to Federal contractors.
In particular, as currently drafted, the House bill would
require the appropriate agency inspectors general (IG) to
conduct an investigation of every whistleblower allegation
unless it were determined to be frivolous.
Now, I think it is unclear to us to what extent this would
pose an additional burden on our already stretched-thin
resources among IG offices across the Executive Branch, and so
that is one issue I would flag as Congress thinks about this.
The second issue is that it is worthwhile to consider what
limitations period would be appropriate to ensure that
contractor whistleblower claims are both raised and resolved in
a timely manner.
And the third point I would make is the Recovery Act
expressly covered State and local grantees of Federal funds,
Federal stimulus funds. To the extent that a provision is
included in this legislation that covers contractors and
grantees, I think there are some unique State and local
concerns that would be raised by extending Federal
whistleblower protection coverage to all State and local
jurisdictions that are recipients of Federal funds. It is not
that it is an insurmountable problem; it is just something that
I think needs to be thought through carefully.
Senator Burris. Thank you, Mr. Chairman.
Senator Akaka. Thank you very much, Senator Burris.
Mr. De, at the 2007 hearing before the House Federal
Workforce Subcommittee, the MSPB witness at that time expressed
concern that the House bill's district court provision
effectively would create a 180-day standard for the Board to
adjudicate whistleblower appeals.
Do you think this time frame would create pressure on the
MSPB to come to a decision in 180 days, perhaps not giving it
enough time to fully consider a case?
Mr. De. Let me start by saying we are well aware of
concerns that have been raised about the pace of adjudications
moving through the MSPB. As you rightly point out, that needs
to be considered, if such a provision is included, is what
effect that would have on the MSPB as it is currently
constituted if litigants could go directly to Federal court
after 180 days and whether that would have a salutary effect or
a negative effect on how the MSPB goes about its own business.
I think it would be best to hear directly from the MSPB,
and I know some of the witnesses today feel strongly about the
MSPB's structure and time frame. But I do think it is a valid
concern at least to be considered as to what the impact would
be on the MSPB as currently structured if a provision were
allowed--if it were allowed for claimants to go to Federal
district court until the MSPB had made a resolution and what a
time frame would do to that decisionmaking cycle.
Senator Akaka. Mr. De, national security whistleblowers
make some of the most important disclosures regarding the
security and safety of this Nation. We will hear later from
witnesses who feel strongly that the system to hear retaliation
claims by FBI and other intelligence community whistleblowers
does not work.
Please tell us more about the Administration's views on the
need to improve protections for whistleblowers in the national
security realm, both within and outside the intelligence
community.
Mr. De. First, we could not agree more that waste, fraud,
and abuse needs to be exposed in the intelligence community in
the same way it needs to be exposed across the Federal
Government. It is just as important there as it is elsewhere.
In fact, it might be more important given the importance of
those programs to our collective security.
For precisely the reasons that you have articulated, Mr.
Chairman, we believe--and the reasons we have proposed an
Intelligence Community Whistleblower Protection Board is that
we believe it is high time that IC whistleblowers had a
mechanism to address reprisal concerns that is outside their
own agency. That is how they are limited today. So for the
first time, we think it is critical that there be an avenue to
address their retaliation claims outside of their individual
agency.
This Board that we are proposing would be able to review de
novo the record that was established within the agency and
would bring a different perspective to these claims. It would
be comprised of people from within and outside the intelligence
community and would have membership that included inspectors
general from across the government, folks who have experience
dealing with whistleblower claims generally and understand the
burdens in these types of cases.
I think as a general matter we think it is important that
any structure that is set up for national security
whistleblowers in making disclosures is structured in such a
way to create incentives that those disclosures are made
through appropriate channels, to either Executive or
Legislative Branch officials who are properly cleared with the
appropriate mechanisms in place.
So I think, as a general matter, it is important to
structure a system that reduces the incentive for national
security employees to feel that their only recourse is to go to
the press, then they have to risk the potential of retaliatory
implications of those disclosures.
Senator Akaka. Thank you. Mr. De, as you noted, the
Administration has proposed creating the Intelligence Community
Whistleblower Protection Board for Federal employees who want
to make classified disclosures to Congress. As I noted earlier,
I understand that the Administration is committed to
transparency, but we must ensure that this Board makes fair
decisions and facilitates congressional oversight and
transparency regardless of the Administration.
Do you have thoughts on what safeguards should be built in
to accomplish that?
Mr. De. Thank you, Mr. Chairman. Yes, I think there are a
couple of things I would propose. One is that we think
congressional notification is a key element of this, so we
believe that any structure that is set up with this new
Intelligence Community Whistleblower Protection Board should
ensure that Congress is notified whenever an adverse decision
is made against an employee who brings a claim of retaliation
to the Board as an initial matter.
Second, we think it is absolutely critical that an
intelligence community employee who wishes to make a disclosure
to Congress and wants to avail themselves of the Board in order
to do so is able to alert appropriate Members of Congress that
they have presented an issue to the Board so that Congress is
aware that there is an issue pending and can take the
appropriate measures in dealing with the Executive Branch to
provide sufficient oversight.
Third, we think there probably is room for considering what
appellate rights from this Board would make sense. I think this
is an issue that needs to be thought through carefully,
particularly with respect to security clearance determinations,
which we feel must stay within the Executive Branch, and
disclosures of classified information. However, there are a
range of whistleblower complaints that may come from
intelligence community employees that may have nothing to do
with sensitive information. And for those cases, we think there
may be a role for some additional appellate review, and we
would be happy to work with the Subcommittee to think through
that.
Senator Akaka. Thank you very much for your responses.
Senator Burris, do you have further questions?
Senator Burris. I have no further questions for this
witness.
Senator Akaka. Thank you. Mr. De, I want to say thank you
so much for being here. As you know, we are trying to craft a
bill that can be effective, and we are pleased to be working
with you on this. Your responses will be helpful to us as we
move forward in the legislative process.
Mr. De. Thank you, Mr. Chairman.
Senator Akaka. Thank you.
Now I would like to call on the second panel to come
forward. The second panel of witnesses includes William L.
Bransford, who is the General Counsel of the Senior Executives
Association. We also will have Danielle Brian, who is the
Executive Director of the Project on Government Oversight;
Thomas Devine, Legal Director of the Government Accountability
Project; and Robert G. Vaughn, Professor of Law at the American
University's Washington College of Law.
I want to welcome all of you to this hearing today. As you
know, we have a custom here in the Subcommittee to swear in all
witnesses. I would ask all of you to stand and raise your right
hand. Do you swear that the testimony you are about to give
this Subcommittee is the truth, the whole truth, and nothing
but the truth, so help you, God?
Mr. Bransford. I do.
Ms. Brian. I do.
Mr. Devine. I do.
Mr. Vaughn. I do.
Senator Akaka. Thank you. Let the record note that the
witnesses responded in the affirmative.
Before we start, I want you to know that your full written
statements will be made part of the record. I would also like
to remind you to keep your remarks brief given the number of
people testifying this afternoon.
Mr. Bransford, will you please proceed with your statement?
TESTIMONY OF WILLIAM L. BRANSFORD,\1\ GENERAL COUNSEL, SENIOR
EXECUTIVES ASSOCIATION
Mr. Bransford. Thank you, Chairman Akaka and distinguished
Members of the Subcommittee. I appreciate the opportunity to
testify this afternoon about reforms on whistleblower
protection. The Senior Executives Association (SEA) supports
increased protections for Federal whistleblowers and is
supportive of S. 372 and H.R. 1507. But the association does
object to the jury trial provisions contained in the House
bill. We believe that whistleblower reform is long overdue, and
we hope the differences between the Senate and the House
legislation can be reconciled and that common-sense reform can
occur.
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\1\ The prepared statement of Mr. Bransford appears in the Appendix
on page 44.
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SEA would like to ensure that such legislation protects
whistleblowers, holds managers accountable for their acts while
not imposing burdens on supervisors who are trying to
effectively manage their employees.
The last time major reform of whistleblower protection laws
occurred was in 1989, with the passage of the Whistleblower
Protection Act. A series of decisions from the MSPB and Federal
Circuit Court of Appeals narrowly interpreted that reform,
resulting today in little, if any, protection for
whistleblowers.
Both S. 372 and H.R. 1507 greatly expand the definition of
what constitutes a protected disclosure. In my opinion, most
instances over the past decade where protection was not
provided to a would-be whistleblower are related to
interpretations by the Federal circuit.
Senior executives hold a unique position in the government:
They both oversee employees who are whistleblowers and may be
whistleblowers themselves. Although SEA supports the reforms
provided in the legislation, we do not support jury trials for
those who claim reprisal. Section 9 of H.R. 1507 would allow
the right to a jury trial 180 days after an employee files a
whistleblower claim with the MSPB or the OSC. In our opinion,
jury trials will contribute to the perception of unacceptable
risk for a Federal manager who is trying to deal with a problem
employee.
The reasoning behind a jury verdict when it occurs is not
explained. A sensational jury trial resulting in a finding
against the government because of the manager's actions along
with a substantial award of damages will create a fear among
fellow managers of being subjected to a similar fate. This
leads managers to be wary of making those tough decisions they
have to make when dealing with problem employees.
It is important to remember that the issue in a
whistleblower case is often whether the employee claiming
whistleblower status is a problem employee using whistleblower
laws as an undeserved shield or, on the other hand, is a
legitimate whistleblower who is experiencing an adverse action
because of protected activity. Adding jury trials to the mix
will give even the best manager pause before confronting an
employee who has made a disclosure, regardless of how valid the
manager's case or how pure the manager's motives.
The jury trial provision in the House bill is particularly
problematic because it contains no limit on damages and is
vague about what issues go to the jury. Also, it calls for a
right to a jury trial even if the special counsel or the MSPB
promptly and appropriately dispose of a whistleblower claim.
SEA believes that the MSPB should be given a chance to apply a
broader, more appropriate law that protects whistleblowers. The
Board's record of efficient resolution will result in prompt
and thorough decisions that can be reviewed by any appropriate
circuit court of appeals in the country.
To this end, SEA also supports other common-sense
provisions in the bill such as providing transparency to a
claim that security clearance revocation is based on
whistleblower reprisal, providing managers with indemnification
for attorneys' fees they expend if the manager is found to have
been just doing his or her job after having been accused of
reprisal, and allowing combinations of disciplinary actions to
be imposed on a guilty manager.
SEA encourages the Subcommittee to move forward with the
language contained in S. 372. In our view, whistleblower reform
without jury trials will contribute to a government that works.
On behalf of SEA, I thank you for your consideration of the
critical enhancements to the Whistleblower Protection Act that
will clarify the law for agencies, Federal managers, and
whistleblowers. This bill is clearly a good government
initiative that SEA would like to see move forward. SEA looks
forward to working with you to ensure that this legislation
creates a fair and transparent system for addressing
whistleblower and executive concerns.
Thank you, Mr. Chairman.
Senator Akaka. Thank you, Mr. Bransford. And now we will
hear from Ms. Brian.
TESTIMONY OF DANIELLE BRIAN,\1\ EXECUTIVE DIRECTOR, PROJECT ON
GOVERNMENT OVERSIGHT
Ms. Brian. Thank you very much, Chairman Akaka, for
inviting me to testify today and for your long leadership on
whistleblower protections and protecting Federal employees.
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\1\ The prepared statement of Ms. Brian appears in the Appendix on
page 48.
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Project on Government Oversight (POGO) was founded by
Pentagon whistleblowers concerned with wasteful spending and
weapons that did not work. Over the years, our mission has
evolved, but we remain devoted to our roots of protecting brave
truth tellers inside the Federal Government.
In general, POGO believes the House language does a much
better job providing meaningful whistleblower protections than
the Senate companion bill for two reasons: It provides real due
process through access to jury trials, and it extends
protections to our very important national security
whistleblowers. My colleague, Tom Devine, is representing our
coalition of organizations in supporting access to jury trials,
so I will focus my testimony on why we need to protect national
security whistleblowers.
Many Federal employees working in the intelligence agencies
were carved out from getting even the pathetic whistleblower
protections that are accorded to other Federal employees, so
that we now have a situation, as Senator McCaskill just pointed
out, where contractors are protected even if, for example, the
Federal employee who is overseeing them is not. There is
currently a random patchwork of laws, which provides
protections to national security contractors and some national
security Federal employees, even intelligence ones, for
example, at the Department of Energy (DOE) and the Nuclear
Regulatory Commission (NRC), but not others. And these separate
but equal systems set up within the CIA and FBI are not
working.
We entrust national security and intelligence Federal
employees with our Nation's most sensitive information. Why
would we not also trust them to protect those secrets when
working to correct problems? And I would like to point out that
in the earlier testimony from the Justice Department, I did not
hear any argument that explains why national security
whistleblowers should not be given the same right to a jury
trial that other Federal employees should have.
It is because of national security whistleblowers that we
have learned that, for example, Congress was being misled about
A.Q. Khan's nuclear proliferation scheme; the existence of the
CIA's secret prisons; our government's use of warrantless
wiretaps; TSA and FBI incompetence; and secret detentions at
Guantanamo. Congress learned about all of these disclosures
through the press, and all of these whistleblowers lost their
jobs. By not providing real protections for national security
whistleblowers, we are actually driving them to the press and
encouraging leaks of classified information. That is a lose-
lose situation.
I want to be very clear. We are not asking to protect the
disclosure of classified information to anyone who is not
cleared to receive it. Whistleblower protections will not
supersede existing rules for handling classified information.
We would support adding language to the bill to make this
explicit, if necessary.
It is in the self-interest of the Congress, perhaps most
importantly, to encourage those who are aware of wrongdoing to
make their disclosures to Congress. Formal briefings from
agency heads have their place, but they do not truly inform the
Congress of the real goings-on at an agency, and House
Intelligence Chairman Silvestre Reyes just recently articulated
this point in the letter he sent to every CIA employee where he
pointed out that essentially the House Intelligence Committee
had been focused on notification rather than real discussion. I
would argue the most effective way to begin real oversight
would be to encourage and protect national security
whistleblowers coming to the Congress.
By virtue of your being elected to office, you have both a
right and a duty to hear the vast majority of our Nation's
secrets, and many of your staff have been similarly cleared.
For particularly sensitive information, you as Members of
Congress also have a right to demand to be read into those
programs. POGO believes strongly that the Congress should not
blindfold itself by adding new restrictions on your access to
information.
It is in this provision regarding disclosures to Congress
that the Senate language is actually preferable to the House.
We believe the House language is too confusing for a
whistleblower in that it is very specific about which committee
and which kind of information is protected, and the reality is
that most whistleblowers do not know which Member of Congress
sits on what committee and which committee has what
jurisdiction over what agency.
For example, I would also point out the best congressional
oversight of the FBI has been conducted by Senator Grassley,
and it has been out of his personal office.
One problem that remains with the Senate provision is the
use of the word ``authorized'' before ``Members of Congress.''
Who authorizes them? The Executive Branch? History has shown
the Executive Branch has repeatedly and mistakenly asserted its
power to do so.
Let me briefly put faces on three national security
whistleblowers.
As a CIA intelligence officer and later in the Pentagon,
Rich Barlow learned that top U.S. officials were allowing
Pakistan to manufacture and possess nuclear weapons. He also
discovered that U.S. officials were hiding these activities
from Congress. Barlow objected and suggested to his supervisors
that Congress should be made aware of the situation. Because
Barlow merely suggested that Congress should know the truth, he
was fired. Barlow is now destitute and living in a trailer.
Federal Air Marshal Robert MacLean protested DHS plans to
secretly neutralize budget shortfalls by canceling air marshal
coverage on long-distance flights, even though there was a
suicide terrorist hijacking alert. He protested up the chain of
command to no avail. Ultimately, he made an unclassified
disclosure to the press. Three years later, the agency fired
him because they retroactively labeled information in his
disclosure as ``sensitive security information.'' His case has
been pending before the MSPB for 3 years without a hearing. He
is unemployed.
When the Department of Justice (DOJ) lawyer, Thomas Tamm,
became aware of the government's use of warrantless wiretaps,
he agonized over the legality of the program. He was rebuffed
when he tried to tell a former colleague working on the Hill
about his concerns. Ultimately, he alerted the New York Times,
their story earning a Pulitzer. Congress constrained the
program, but Mr. Tamm became a target of an FBI investigation,
lost his job, and has racked up tens of thousands of dollars in
legal fees.
Passing strong whistleblower legislation is a significant
step. It will not, however, be enough. We cannot forget these
people whose careers have been shattered because this law has
been so late in coming.
I was very gratified, Senator Burris, that you raised this
question to the Justice Department witness and that he
expressed an open mind to reviewing cases such as Barlow,
Maclean, and Tamm to see if there is some way of making them
whole. That would be a message sent around the Federal
Government that whistleblower protections are more than a
campaign promise, they are a reality.
Thank you.
Senator Akaka. Thank you very much, Ms. Brian. Now we will
hear from Mr. Devine.
TESTIMONY OF THOMAS DEVINE,\1\ LEGAL DIRECTOR, GOVERNMENT
ACCOUNTABILITY PROJECT
Mr. Devine. Thank you, Mr. Chairman. I am testifying today
for the Government Accountability Project, but my views reflect
those of the Make It Safe Coalition, a trans-ideological, non-
partisan network of whose mission is supporting whistleblowers,
those employees who use free speech rights to challenge abuses
of power that betray the public trust. It used to be a little
bit more lonely battle. A few years ago, there were only about
20 groups working on this. As of today, we have over 300 who
have signed our coalition letters or sent their own letters of
support.
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\1\ The prepared statement of Mr. Devine with attachments appears
in the Appendix on page 57.
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Just this morning, the Society for Conservation Biology
sent you a letter on behalf of its 12,000 members, many of them
Federal scientists, in support of H.R. 1507, the House version
of this legislation.
A few weeks ago, during a 24-hour time period, we got so
much public support for the House version of the Whistleblower
Protection Act that it took second place in the White House's
Open Government Dialogue for Transparency in Government.
All of us are united behind one basic principle: That
whistleblowers should be entitled to best practice free speech
rights enforced by full access to court, which is what
President Obama promised when he ran for office.
I also want to thank you, Mr. Chairman, because we have to
thank you for marathon leadership of this issue. I have very
vivid memories of back in 1999, your aide, Nancy Langley,
taking me to every Member of this Committee just to get them
interested in the Whistleblower Protection Act--let alone fix
it. And after 10 years, with your continued leadership, we are
going to get this job done, and we are going to do it right.
We have learned a lot over the last 10 years, and today's
forum creates the necessary record to apply those final lessons
learned. And the foremost lesson is that doing it right means a
fair day in court.
This is the fourth time Congress will have passed the same
free speech rights. Why? The Achilles heel has always been
inadequate due process. The Whistleblower Protection Act was
largely passed because employees had only won four cases before
the MSPB in the 1980 whistleblower cases. Congress kept the
same due process structure, but gave more guidance for the
Board. Well, they ignored it, so in 1994, Congress amended the
law, and again gave the Board more guidance. Well, guess what?
In this millennium, since 2000, we have only had three
whistleblowers who have won decisions on the merits.
Enough is enough. It is time to end the broken record
syndrome, Mr. Chairman.
One thing that has been very conspicuous by its absence
from today's hearing is a defense of the MSPB's record. It is
not surprising, though, because there is no credible defense.
Its track record is 3 in 53 against whistleblowers for
decisions on the merits since the millennium. And never has a
whistleblower won a case in 30 years on the misconduct that
matters most to the taxpayers, government breakdowns that have
national implications: The Challenger disasters, Star Wars,
Iran-Contra, domestic surveillance, food contamination, tens of
thousands of people dying from unsafe prescription drugs;
weapon of mass destruction; the warnings before 9/11. None of
the whistleblowers who challenged those breakdowns could find
justice at the MSPB.
I want to spend the last portion of my time responding to
some of the concerns that were raised this morning, and, in
particular, that Federal managers would be too scared to fire
whistleblowers if they had access to jury trials. And there
actually is some common ground here.
Mr. Bransford made this point by stating that, ``Adding
jury trials to the mix will give even the best manager pause
before confronting an employee who has made a disclosure. . .
.'' Well, that means the law might finally start working.
Federal managers might pause before they take actions to fire
whistleblowers. Thank goodness.
But why is it that Federal managers are the only ones too
scared to do the right thing in whistleblower cases? We have
had jury trials for State and local employees for over a
century. It has been there for Equal Employment Opportunity
(EEO) employment discrimination cases since 1991. It has been
there for corporate workers in 13 precedents, including eight
since 2002, five in the last Congress. What is it about these
Federal managers that they are afraid to exercise authority
when people challenge government misconduct? Maybe the
solution, Mr. Chairman, is to have additional training for
Federal managers as part of S. 372 so that they will exercise
their authority when they need to.
Finally, this fear has flunked the reality test. It is not
about jury trials. It is about anything that strengthens
whistleblower rights. It was brought up as the reason to veto
in 1988 when the Whistleblower Protection Act was first passed.
It has never been proven in reality. The rates of adverse
actions and performance-based actions, accountability measures,
have stayed constant before and after whistleblower rights were
strengthened, before and after State and local governments
added jury trials. It is time for Federal managers to stop
crying ``Wolf.'' And if they will not stop, it is time for
Congress to stop listening to them.
Senator Akaka. Thank you very much, Mr. Devine. Now we will
hear from Mr. Vaughn. Will you please proceed?
TESTIMONY OF ROBERT G. VAUGHN,\1\ PROFESSOR OF LAW, WASHINGTON
COLLEGE OF LAW, AMERICAN UNIVERSITY
Mr. Vaughn. Thank you. My name is Robert Vaughn, and I am a
Professor of Law and A. Allen King Scholar, at the American
University's Washington College of Law. Mr. Chairman, I
appreciate this opportunity to speak to this Subcommittee about
this important piece of legislation. My testimony focuses on
one of the differences between the House and Senate versions of
the legislation: The alternative recourse provision, including
a trial de novo in a Federal District Court with a right to
trial by jury.
---------------------------------------------------------------------------
\1\ The prepared statement of Mr. Vaughn appears in the Appendix on
page 141.
---------------------------------------------------------------------------
I would like to say a few things about the right to trial
by jury in these cases and use the remainder of my time to talk
about the implications of the alternative recourse provision on
the administrative process.
The jury trial is an integral part of our democracy. From
the time of the enactment of the Seventh Amendment, the jury
has been seen as a coordinate branch of government checking the
power of unelected judges, representing the community,
providing insights into the weaknesses of the laws, creating
political awareness in citizens, and providing an important
``badge of citizenship.''
Because whistleblowers help to guarantee legal and
political accountability of unelected executive officials, the
use of juries in these cases is particularly apt. Despite
popular stereotypes to the contrary, several decades of social
science research emphasized the competence and dedication of
jurors. Jurors and judges usually agree, and disagreement
cannot be ascribed to jury incompetence or to the unwillingness
to follow the law.
The research also shows that juries are as capable as legal
experts in deciding complex factual cases. The common
stereotypes about juries belied by the research are that jurors
favor individuals against organizations, particularly
corporations; that jurors find against defendants based on the
defendant's ability to pay; and that jurors are disabled by
complex factual cases. These stereotypes are pertinent to the
use of the jury trial and whistleblower cases because these
cases pit often sympathetic individuals against the government
with the resources to pay any damage.
One scholar studying the literature regarding the treatment
of corporate defendants concludes that jurors are largely
supportive of the aims of American business, but hold them to a
higher standard than individuals regarding the care needed to
protect workers and consumers. Moreover, she found ``several
studies question the conventional wisdom that the financial
resources of corporate defendants encourage a deep pockets
approach.''
Assuming that whistleblower cases could be classified as
complex cases, research shows that jurors are effective in such
cases. They are diligent and skeptical in evaluating expert
testimony. Jurors perform as ably as judges in complex factual
cases. The general research regarding jury performance
reassures us about the use of the jury in whistleblower cases.
One expert calls a jury trial a ``trial by jury and a
judge.'' Federal judges have ample powers to supervise juries
and to correct and prevent mistakes.
I also want to address the implications of the alternative
recourse provision. In my written testimony, I present several
arguments supporting the following propositions:
First, use of the alternative recourse to Federal district
courts will be the unusual not the common occurrence.
Second, a rational decisionmaker would not rush the
resolution of whistleblower claims before the Board to satisfy
the 180-day deadline.
Third, the effects of the alternative recourse provision on
the Board does not counsel against the adoption of the
provision. The alternative recourse provision will not waste
administrative resources. Even if all whistleblowers who are
likely to use the alternative recourse provision have had their
claims fully adjudicated by the Board, the administrative
resources devoted to these cases is a small percentage of the
Board's revenues, something on the magnitude of tenths of 1
percent.
Four, the alternative recourse provision can benefit
judicial and administrative adjudication The encouragement of
settlement is one important benefit.
I believe that both the alternative recourse provision
contained in the House version and the right to jury trial that
it provides is both an effective and a safe way of providing an
alternative form to whistleblowers. Thank you.
Senator Akaka. Thank you very much, Mr. Vaughn, for your
statement.
Mr. Bransford, Mr. Devine responded to SEA's concerns that
giving whistleblowers access to district courts could
contribute to a perception among Federal managers that it is
too risky to discipline problem employees. Would you like an
opportunity to respond to Mr. Devine's comments?
Mr. Bransford. Yes, Mr. Chairman. I do appreciate having
that opportunity. I think the life of a Federal manager is
difficult and complex. Typically, a career Federal employee
becomes a manager because they are the best technician, not
necessarily because they are the best supervisor or the best
person with people skills. Then they are put in the job with
little or no training--in the government, it is hit and miss.
Some agencies are better than others at providing that
training, and I know we have worked with you, Chairman Akaka,
to try to correct that.
Then the manager trying to get the job done deals with a
system where there is an EEO system, where EEO complaints are
filed, and the employee can simply with impunity file a
complaint of EEO, and if you talk to EEO professionals, they
will tell you that many employees who file them really are not
complaining about discrimination. They are complaining about
workplace issues.
And then you have the whistleblower laws, and you have a
complex set of circumstances. And all of these give the manager
some reason to avoid dealing with a problem employee. And the
complaint is often heard that managers let problems go and they
do not deal with them; then the problems become big. And I
think as you make this more complex and even more difficult, I
think the uncertainty of a jury trial, the sensationalism of it
will just add to that and make it more difficult for managers
to deal with problem employees. I have seen it. I have seen
also 10, 15 years ago much more enforcement of the
whistleblower laws, much more activity by the MSPB, a lot of
settlements that Mr. Devine does not talk about that used to
occur. Cases just simply are not brought anymore, and they are
ignored. Something needs to be done to reform the law, but I
think jury trials goes too far. Thank you.
Senator Akaka. Thank you. Mr. Bransford, if a jury trial
provision were included in a final bill, do you have any
thoughts on possible ways to solve or mitigate the concerns of
Federal managers?
Mr. Bransford. Senator, I was very intrigued by Mr. De's
approach, and I found most of what he was saying things that I
would agree with, particularly the limit on compensatory
damages along the lines of what is in an EEO case. But I have a
real concern about changing the burden of proof to agencies
from clear and convincing--in other words, when an agency can
get out of whistleblower reprisal by proving by clear and
convincing evidence that it would have taken the action anyway.
I think reducing that standard is problematic because it is
difficult enough for a whistleblower to prevail even with that
fairly high standard, and that is one of the significant
reforms in 1989 that, I believe, has actually made a
difference.
So I would be concerned about changing that. The other
changes, though, I did find intriguing.
Senator Akaka. To follow up on this, Professor Vaughn's and
Mr. Devine's testimony suggest that there likely would be a
very small number of whistleblower cases brought before juries.
Mr. Bransford, do you agree or disagree with that analysis, and
how would this affect your concerns for Federal managers?
Mr. Bransford. Well, I think initially because of the
existence of this new remedy, there would be a lot of cases. I
think over time the cases may diminish because judges may use
certain tools they have that Professor Vaughn talked about,
such as motions for summary judgment and things like that. But
I think that we have seen in the EEO system a lot of employees
using that as a way of coming back against a manager, and I
think that you would see a lot more whistleblowers, a lot more
employees who would claim to be whistleblowers, who were in a
problem employee situation, and I think they would use whatever
system they had that was available.
I do agree that it is expensive to go to Federal court, and
that may keep down the numbers somewhat.
Senator Akaka. Mr. Devine, would you like to address why
this issue is so important to whistleblower rights advocates,
if the House's district court provision likely would be used
infrequently?
Mr. Devine. Thank you, Mr. Chairman. First, there is a
question of credibility. This was the policy that the President
campaigned on, and we have not heard a reason, a public policy
basis to back off of that commitment.
Second, it is a matter of fairness for Federal employees.
They are about the only whistleblowers in the labor force who
do not have access to juries to enforce their rights. And it is
not sending a very good message to them that we are serious
about whistleblower protection if we give them second-class due
process compared to the rest of the labor force. So it is for
credibility and legitimacy of the law.
Third, it is for the public's right to know. Mr. Bransford
feels that this may be sensational. That means the public is
enfranchised to make decisions about government actions that
have an impact on them, and we think that is a real advantage
of jury trials consistent with Professor Vaughn's insights.
The fourth is the people who do make a significant
investment--which few can afford, but if they do, they will
actually have a fighting chance to win when the trial is over
with. They do not at the Merit Systems Protection Board right
now.
Fifth, there will be a much better chance for settlements.
Managers will know, as Mr. Bransford is concerned, that they
might actually lose when somebody files a lawsuit, and that
means they will be negotiating in good faith, settlements will
be more fair, and there will be a lot more of them to prevent
litigation. That is what happened when Congress gave jury
trials to DOE and NRC employees under the Energy Policy Act in
2005. Before that Act was passed, there were 191 cases in the 3
years before its passage. The 3 years after its passage, there
were 112. The litigation load went down because there was more
of a fair fight when there is a conflict. But, most
significant, it is not about quantity. It is about quality. It
is about the types of cases. Most of the cases probably can be
heard by the MSPB, and we want to also work with you to improve
the administrative process. But the Board is not structured for
the cases that are the most significant reason we have this
law, those with national impact, those where there has been a
serious governmental breakdown. That is out of the MSPB's pay
grade, quite frankly. They do not have the resources for it.
We did one trial that went on for 5 weeks, and the poor
administrative judge said, ``Mr. Devine, this is like trying to
get a snake to swallow an elephant. We are going to have to
have a supplemental appropriation for the gap docket if you
keep bringing cases like this.''
Well, there has to be a home that is ready for the most
significant government breakdowns, the laundry list of those
where the Whistleblower Protection Act has been AWOL over the
last 30 years.
Senator Akaka. Thank you. Ms. Brian.
Ms. Brian. Mr. Chairman, if I could add yet one more reason
to Mr. Devine's long list, which is we believe that having
access ultimately to jury trials after the administrative
process would actually improve the quality of the
administrative process because they would know someone outside
was actually reviewing their work. That is essentially how the
court system works outside this administrative process, and we
think, if the MSPB knew there was going to be genuine scrutiny
of their work, that it would actually improve the work and
would not necessarily require people to go on to jury trials at
all.
Mr. Devine. We think the Board's track record will be more
balanced if there is Federal court interpretations of the facts
to help keep them more honest.
Senator Akaka. Thank you. Professor Vaughn, your written
testimony provides a great deal of detail on how a jury trial
provision would function in practice, which will be useful to
this Subcommittee's understanding of the issues involved. Your
testimony concludes that few whistleblower cases likely would
be filed in district court. I would like to give you an
opportunity to walk us through your analysis and its
implications.
Mr. Vaughn. Thank you. I think that there are several
reasons. One is that the cost of essentially Federal
litigation--when I was growing up, my father was a small-town
attorney, and when I would complain about things, he would say,
``Don't make a Federal case out of it.'' And what he meant by
not making a Federal case out of it was that was an expensive,
time-consuming activity. It is also one where we have some of
the most important cases decided, which is what we also mean by
making it a Federal case.
I think the costs, time, and money of mounting a Federal
case would limit the number of whistleblowers who would use the
alternative recourse provision. I think that the Board's
practice, there are aspects of it. The majority of persons who
appear before the Board are unrepresented or are represented by
persons who are not attorneys. As we heard earlier,
whistleblowers have trouble finding someone to represent them.
Those pro se whistleblowers would, I think, particularly find
it difficult to use the alternative.
At the Board there is a right to a hearing. That is not
necessarily the case in Federal court. There is interim relief
at the Board. Many cases decided at the Board would be decided
within the 120-day limit. About 50 percent of the cases are
dismissed for timeliness or lack of jurisdiction. So the
suggestion would be that a lot of the cases do not consume very
much resources at the Board.
Our experience with other statutes like Title VII, the
Sarbanes-Oxley Act, demonstrate that the majority of
whistleblowers who would be able to leave the administrative
process do not do so. And then there are problems also of delay
in Federal court. The statistics I have in my testimony deal
with the time from filing a civil action in Federal court
regarding employment-based actions until there is a disposition
at trial, and those times, depending on the kind of case that
it is, run from over 1 year to over 2 years. So there would
be--a whistleblower would face delay.
As I mentioned in my written testimony, there are a number
of dispositive motions that are available in Federal court. The
motion for summary judgment, motion for judgment is a matter of
law, the renewed motion for judgment is a matter of law which
prevent the cases from being decided by a jury or reverse the
jury's determination. Summary judgment has become a very common
motion in Federal court. The data regarding employment-based
cases show that a very small percentage of those cases proceed
to a jury trial, and few civil cases that are filed in Federal
court actually reach trial, the most recent statistics say less
than 2 percent. And, finally, there will be a confined limit of
the pool of potential whistleblowers to use this process. So I
think that the number of jury trials that we would expect in
Federal court would be fairly limited.
If I could, I also wanted to mention and agree about the
problem with the removing the clear and convincing evidence
standard. I am not sure I agree with the conclusion that juries
would find it difficult to apply the clear-and-convincing-
evidence standard when they apply preponderance-of-the-evidence
and the reasonable-belief standard. Juries, as a group, may not
have as much experience with the standard as they do with a
preponderance or reasonable belief, but the individual juries
themselves do not have experience at all when they begin a
case. And one of the functions of the court is to describe the
character of the burdens of persuasion that are based--that
rest in the case, and juries do a diligent job of following
those. And just off the top of my head, in civil actions we
have a number of tort actions, including defamation, where
clear and convincing evidence is the standard that is used,
that juries have to be instructed on. In almost all cases,
contract and commercial cases that involve fraud or allegations
of fraud, clear and convincing evidence is the standard that
the court has to instruct the jury about.
So I am, I think, more optimistic about juries being able
to use the clear-and-convincing-evidence standard.
Senator Akaka. Professor Vaughn, thank you for walking us
through that. As you know, the House bill would allow
whistleblowers to file district court cases after the MSPB
decision and get a de novo trial by jury. Are you aware of
other statutes that allow a similar process, and what are your
views on this process?
Mr. Vaughn. Title VII has that procedure. I think more
recently the Consumer Product Safety Improvements Act of 2008,
one of the sections of that provision, has a similar mechanism
in it. There is probably an analogous provision in the American
Recovery and Reinvestment Act of 2009. It is analogous because
exhaustion in those cases are through the Office of Inspector
General, not through administrative adjudication. But it has a
similar provision in it. These are the ones I can think of, but
these seem to me to be not an uncommon or unexpected provision
in this kind of law.
Senator Akaka. Thank you. Ms. Brian, as you know, the DOJ
has proposed a new Executive Branch Board to review classified
disclosures to Congress. Could you address the areas of
agreement or disagreement with the Administration on the
appropriate methods and protections for whistleblowers in the
intelligence agencies?
Ms. Brian. Given the hybrid model that was testified to
earlier, there was some new information that I thought was
encouraging. There was an acknowledgment that the people on
that Board would be presidentially appointed. We hope that also
means Senate confirmed. The reason that is important to us is
it would allow the Congress time to evaluate whether you think
those people are appropriate and independent in making these
kinds of judgments.
I was also pleased to see that there was an acknowledgment
that it is important that a whistleblower have the access to
the Congress by notifying the Congress not after the end of any
review, but I am hoping what they meant was at the initiation
of a disclosure to this Board so that if a Member of Congress
was so inclined, that they could go to that Board and find out
exactly what this disclosure is up front.
One of the big concerns I have had is that this Board not
become a way of preventing information from getting to the
Congress. I want the Congress to be able to access it as it
wishes.
We think that there is some possible agreement on how to
make this Board work. It is just really going to be very
important to get a better sense of the details of exactly what
the procedures would be for those who were making disclosures
to it and the rights for those people.
Senator Akaka. Thank you. Mr. Devine.
Mr. Devine. Mr. Chairman, we also think that it is very
important that the Board's jurisdiction be limited to cases
where there is a demonstrable harm to national security. The
idea that because you work at the FBI, or because you work at
the National Security Agency (NSA), you are not entitled to
normal due process, we really cannot accept that. Title V has a
breakdown for employees whose jobs are principally for
intelligence functions and those whose jobs are more generic
public service. And if you are an employee at one of these
agencies who is not doing sensitive work, there is really no
excuse to put you at a lower level of due process. And then
even if you are an employee who is doing sensitive work, there
needs to be a demonstration that a public trial would harm
national security. It might actually help national security by
nipping serious problems in the bud with the scrutiny.
Senator Akaka. Professor Vaughn, in your view, would it be
possible to conduct jury trials for intelligence community
whistleblowers without jeopardizing security?
Mr. Vaughn. In many instances, I think that might be
possible. I was struck by the testimony of the American Civil
Liberties Union in the House on the House version of the bill
where they talked about a number of the kinds of devices that
would be available to a judge to limit the risks and the most
serious cases where national security information might be
involved.
Mr. Devine. Mr. Chairman, they already do have jury trials
all the time under the EEO laws. There is no second-class
status for FBI or intelligence agency employees who are
challenging individual misconduct which violates their personal
rights. This only seems to be impermissible when they challenge
government misconduct that violates the public interest. I do
not think that is really a valid distinction.
Ms. Brian. Mr. Chairman, if I could add one more point----
Senator Akaka. Thank you, Mr. Devine. Ms. Brian.
Ms. Brian [continuing]. Which is that GAO looked into this
question and concluded that there should be no concerns about
providing intelligence agency employees with full due process
rights, including jury trials, given that the courts already
have a long history of handling classified materials and
knowing how to manage those problems.
Senator Akaka. Ms. Brian, with respect to national
security, the House whistleblower bill would protect
disclosures only if they are made to members of specific
congressional committees. In your testimony, you stated your
preference for the Senate provision because it allows
whistleblowers to make disclosures to legislative staff holding
an appropriate security clearance.
Can you discuss the challenges that whistleblowers
experience when making disclosures of classified information to
Members of Congress?
Ms. Brian. Thank you very much, Chairman. I think that is a
really central question as you consider this legislation. It is
not only to properly cleared legislative staff, but it is also
to any Member of Congress, regardless of committee. And the
problem a whistleblower will face is they are very likely, as
they decided to make a disclosure--which is in itself a very
difficult decision to make. But once they have decided to make
such a decision, the likely place they will turn is to their
own Member of Congress because they are a constituent. It is
very unlikely that Member of Congress sits on the committee of
jurisdiction.
The next problem is it is unlikely that the whistleblower
has read the law that specifies that their disclosure is only
protected if they go to a particular committee. And so it
creates this unfair burden for that person who is in good faith
going to either their Senator or Congressman or perhaps a
Member who they have seen is already conducting oversight in
that arena outside of the committee jurisdiction, and they want
to go to them because they think they are a particularly
effective Member of Congress. I believe that person handling
classified information properly by going to the cleared staff
or meeting with the Congressman himself should be protected.
Senator Akaka. Ms. Brian, under the WPA, agencies are
required to inform their employees of their whistleblower
rights. In response to this mandate, OSC created a voluntary
program to assist agencies in making their employees aware of
their rights. Currently, numerous agencies have completed the
certifications or are participating in the program. However,
you have indicated that many employees, particularly national
security employees, are not educated on their whistleblower
rights and how to report misconduct.
What further actions must Congress and the agencies take to
ensure that employees understand their whistleblower rights?
Ms. Brian. I think to clarify my testimony, I was not
suggesting that they are not aware of their rights. They just
do not have adequate rights in the first place. And so what we
need to do is give them those rights. That is what I would say.
Mr. Devine. Mr. Chairman, the premise of your question was
well taken; however, I am not sure what else Congress can do to
legislate. It might be very helpful to have a special program
for managers on rights and responsibilities under this
legislation. But it was part of the 1994 amendments that agency
heads have a duty to train, to inform their employees of their
rights. It was part of the No Fear Act that they have to have
detailed programs, and the agencies simply have not been
complying. I do not think the problem is lack of congressional
legislation. It has been lack of leadership within the
Executive Branch.
The prior Special Counsel program that you referenced was
an ambitious and genuine one to get agencies up to speed and
making commitments to train their employees on their rights,
and it ended with the last special counsel.
The way you folks can really help is to push the
Administration to hurry up and appoint a new special counsel
and a new chair of the MSPB so the agencies that turn these
laws into reality can start functioning properly.
Senator Akaka. Thank you so much. This has been a good
discussion.
Finally, I want to give each of you an opportunity to give
closing remarks on your thoughts about what has been said or on
what challenges lie ahead. Mr. Bransford, will you please
begin.
Mr. Bransford. Thank you, Chairman Akaka. I believe, if my
memory serves me correctly, Mr. Devine and I sat on a similar
panel to this in November 2003 with similar legislation making
similar positions. And here it is 2009, and there is still no
reform.
What I have seen in my law practice and what I have seen in
representing the Senior Executives Association over the years
is a gradual erosion, to the point where today there is no
whistleblower protection. It is non-existent. Just this week, I
had two people telephone me who were concerned that they are
being retaliated against because they raised issues as part of
their jobs, absolutely 100 percent part of their jobs. And, of
course, the current whistleblower law would not protect them,
so we are dealing with helping these people through other
means, perhaps EEO or whatever. So I hope that there is a
prompt resolution and reconciliation.
I also would say that on a regular basis I meet with
hundreds of Federal managers every year. I do training for
Federal managers. I focus on why is it that Federal managers do
not deal with problem employees. And while fear of
whistleblower prosecution does not come up--it does not come up
because it does not happen. But it does come up in the context
of EEO; it does come up in the context of the complexity of the
Federal system, the absence of training and other such things.
And I do know that Federal managers will sometimes have pause
in taking action out of fear of uncertainty of the system. And
my genuine concern is that jury trials will add to that.
And I do believe the MSPB is capable of deciding these
cases, of hearing them and issuing good decisions, assuming the
law were changed, and especially allowing review by the other
circuit courts of appeals to interpret those laws.
So I hope the reform can take place and can take place this
year, because I do believe it is needed.
Senator Akaka. Thank you very much, Mr. Bransford. Ms.
Brian.
Ms. Brian. Chairman Akaka, thank you for the opportunity. I
have been working on these issues since the 1980s, and I think
you probably have also. There has been longstanding concern on
the part of the Congress to fix the problems that we have been
discussing. I think the important change that we are seeing is
this is the first Administration that I think is, first of all,
not threatening to veto this legislation. We see a dramatic
change in the level of communication with the community and
hearing our concerns and engaging. And I think it is something
that is going to finally mean that we will be seeing a Rose
Garden ceremony where whistleblower protections will pass this
year.
Senator Akaka. Thank you. Mr. Devine.
Mr. Devine. Mr. Chairman, this legislation has evolved and
grown over the last 10 years as we have learned a lot of
lessons. When it was first introduced, almost all the
whistleblower laws were enforced through administrative, solely
administrative remedies. Now the rule is to give people normal
access to enforce these rights, as we have learned from track
records.
I think the point that we are at with the Whistleblower
Protection Act is consolidating the lessons learned of the last
10 years and creating a truly modern law for Federal employees.
The mandate does not seem to be in debate from any side at this
point. It is just how to do it right. And that is merely a
process of making sure that we have kept track of the best
practices and that we incorporate them into this legislation so
that four will be the charm. And the timing is very critical.
We are in a period of unprecedented government spending,
crises in terms of civil liberties, human rights abroad, as
well as our economy that will require our government to be at
its best. And that is why we put first-class accountability
measures for whistleblowers for all the people who receive
stimulus funds, and that is the reason why we cannot settle for
second-class due process in a first-class good government law
for the Federal workers. It is not too late, but we need to
finish this before the stimulus spending gets fully underway,
and we will be ready for whatever comes.
Senator Akaka. Thank you very much. Mr. Vaughn.
Mr. Vaughn. Mr. Chairman, my last word is it is always
dangerous how you begin your career. As a 26-year-old young
attorney, I began to work with Ralph Nader on a project on
civil service reform, and it was his opinion that the most
important part of that reform was the protection of
whistleblowers. And over the course of my career, I have seen
how whistleblowers disclose mismanagement and corruption. They
secure openness in government, impose accountability, support
the rule of law, protect the First Amendment.
It is our obligation to many ethical and brave employees to
protect them. The protections that we provide them are also the
cost that we pay, the price that we pay for the important
disclosures that they make that make our government accountable
to the people, and I think that in doing that, we can take
risks. With the House provision, I think that we are not taking
risk that the provisions that are contained in the House
provision that I have discussed are not novel or untried or
dangerous. And I think they are part of that obligation and
price we have to pay for all the benefits of whistleblower
protection.
Senator Akaka. I want to thank all of our witnesses. You
have helped us to really think through the key concerns for
finalizing this bill. This issue is a priority for me, and I am
optimistic that finally we will enact protections for
whistleblowers this year. My colleagues in Congress and I will
be working closely with the Administration and stakeholders on
this.
This hearing record will be open for one week for
additional statements or questions from other Members of the
Subcommittee.
This hearing is adjourned.
[Whereupon, at 4:36 p.m., the Subcomittee was adjourned.]
A P P E N D I X
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