Whistleblower-protection bill sent to president

Wednesday, November 14, 2012

WASHINGTON — The Senate yesterday gave final congressional approval for a bill that would significantly expand protections for federal employees who expose fraud, waste and abuse and make it easier to punish supervisors who try to retaliate against the whistle-blowers.

The Whistleblower Protection Enhancement Act (S. 743), approved by voice vote and sent to the president, was the product of 13 years of work by organizations pushing for greater protections for the federal workforce. The House passed the measure in late September.

The legislation closes loopholes created by court rulings, which removed protections for whistleblowers. One loophole specified that whistleblowers were only protected when they were the first to report misconduct.

The new legislation, however, would go beyond restoring protections to expand whistleblower rights and clarify protections that were not explicitly clear. For instance, the bill would clarify that whistleblowers could challenge the consequences of government policy decisions.

Specific protections would be given to certain employees, including government scientists who challenge censorship and workers at the Transportation Security Administration, who provide screening at airports.

The bill also would clarify a 24-year-old portion of appropriations bills, to make clear that agency restrictions on disclosures are superseded by the right to communicate with Congress and other whistleblower rights.

To stop illegal retaliation, the bill would make it easier to discipline anyone who punishes a whistleblower – by making it easier to prove that a retaliatory action is wrong. Also, the Office of Special Counsel, which was established to protect federal employees, would no longer be liable for attorneys fees of government managers if the office does not prevail in a disciplinary action.

The new legislation would suspend the Federal Circuit Court of Appeals’ sole jurisdiction to review decisions in whistleblower cases.

The bill’s supporters said the court consistently narrowed protections and ruled for whistle-blowers only three times in 229 cases between October 1994 and May 2012. A review by all federal circuit courts was added as a two-year experiment.

The legal director of the Government Accountability Project, Tom Devine, said: “After a 13-year roller coaster campaign, Congress unanimously has given whistle-blowers who defend the public a fighting chance to defend themselves. This is a major victory for taxpayers and public servants, but a major defeat for special interests and bureaucrats. Free speech rights for government employees never have been stronger.”

But Devine said that House Republicans blocked proposed provisions for jury trials to enforce newly-enacted protections, and extension of free speech rights to national security workers making disclosures within their agencies.

Carolyn Lerner, head of the federal Office of Special Counsel, which investigates retaliation against government whistle-blowers, also praised the legislation.

She said her office “stands ready to implement these long-overdue reforms, which will better ensure that no employee is retaliated against for speaking out against government waste or misconduct.”

Also see: Obama administration’s leak pursuits ‘unplanned’


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