[House Hearing, 115 Congress]
[From the U.S. Government Publishing Office]
FIVE YEARS LATER: A REVIEW OF THE WHISTLEBLOWER PROTECTION ENHANCEMENT
ACT
=======================================================================
HEARING
BEFORE THE
SUBCOMMITTEE ON
GOVERNMENT OPERATIONS
OF THE
COMMITTEE ON OVERSIGHT
AND GOVERNMENT REFORM
HOUSE OF REPRESENTATIVES
ONE HUNDRED FIFTEENTH CONGRESS
FIRST SESSION
__________
FEBRUARY 1, 2017
__________
Serial No. 115-10
__________
Printed for the use of the Committee on Oversight and Government Reform
Available via the World Wide Web: http://www.fdsys.gov
http://www.house.gov/reform
Committee on Oversight and Government Reform
Jason Chaffetz, Utah, Chairman
John J. Duncan, Jr., Tennessee Elijah E. Cummings, Maryland,
Darrell E. Issa, California Ranking Minority Member
Jim Jordan, Ohio Carolyn B. Maloney, New York
Mark Sanford, South Carolina Eleanor Holmes Norton, District of
Justin Amash, Michigan Columbia
Paul A. Gosar, Arizona Wm. Lacy Clay, Missouri
Scott DesJarlais, Tennessee Stephen F. Lynch, Massachusetts
Trey Gowdy, South Carolina Jim Cooper, Tennessee
Blake Farenthold, Texas Gerald E. Connolly, Virginia
Virginia Foxx, North Carolina Robin L. Kelly, Illinois
Thomas Massie, Kentucky Brenda L. Lawrence, Michigan
Mark Meadows, North Carolina Bonnie Watson Coleman, New Jersey
Ron DeSantis, Florida Stacey E. Plaskett, Virgin Islands
Dennis A. Ross, Florida Val Butler Demings, Florida
Mark Walker, North Carolina Raja Krishnamoorthi, Illinois
Rod Blum, Iowa Jamie Raskin, Maryland
Jody B. Hice, Georgia Vacancy
Steve Russell, Oklahoma Vacancy
Glenn Grothman, Wisconsin Vacancy
Will Hurd, Texas Vacancy
Gary J. Palmer, Alabama
James Comer, Kentucky
Paul Mitchell, Michigan
Jonathan Skladany, Staff Director
William McKenna, General Counsel
Tristan leavitt, Senior Counsel
Sharon Casey, Deputy Chief Clerk
David Rapallo, Minority Staff Director
------
Subcommittee on Government Operations
Mark Meadows, North Carolina, Chairman
Jody B. Hice, Georgia, Vice Chair Gerald E. Connolly, Virginia,
Jim Jordan, Ohio Ranking Minority Member
Mark Sanford, South Carolina Carolyn B. Maloney, New York
Thomas Massie, Kentucky Eleanor Holmes Norton, District of
Ron DeSantis, Florida Columbia
Dennis A. Ross, Florida Wm. Lacy Clay, Missouri
Rod Blum, Iowa Brenda L. Lawrence, Michigan
Bonnie Watson Coleman, New Jersey
C O N T E N T S
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Page
Hearing held on February 1, 2017................................. 1
WITNESSES
Mr. Robert P. Storch, Deputy Inspector General, U.S. Department
of Justice, Chair, Whistleblower Ombudsman Working Group,
Council of the Inspectors General on Integrity and Efficiency
Oral Statement............................................... 5
Written Statement............................................ 8
Mr. Eric Bachman, Deputy Special Counsel for Litigation and Legal
Affairs, Office of Special Counsel
Oral Statement............................................... 12
Written Statement............................................ 14
Mr. Thomas M. Devine, Legal Director, Government Accountability
Project
Oral Statement............................................... 25
Written Statement............................................ 27
Ms. Elizabeth Hempowicz, Policy Counsel, Project on Government
Oversight
Oral Statement............................................... 50
Written Statement............................................ 52
APPENDIX
Letter of January 26, 2017, to White House Counsel submitted by
Ms. Watson Coleman............................................. 78
FIVE YEARS LATER: A REVIEW OF THE WHISTLEBLOWER PROTECTION ENHANCEMENT
ACT
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Wednesday, February 1, 2017
House of Representatives,
Subcommittee on Government Operations,
Committee on Oversight and Government Reform,
Washington, D.C.
The subcommittee met, pursuant to call, at 2:14 p.m., in
Room 2154, Rayburn House Office Building, Hon. Mark Meadows
[chairman of the subcommittee] presiding.
Present: Representatives Meadows, Hice, Jordan, DeSantis,
Ross, Blum, Connolly, Cummings, Maloney, Clay, Lawrence, and
Watson Coleman.
Mr. Ross. [Presiding.] The Subcommittee on Government
Operations will come to order. Without objection, the chair is
authorized to declare a recess at any time.
I will defer at this time to the ranking member of the
subcommittee for an opening statement.
Mr. Connolly. Thank you, Mr. Chairman. And I know Mr.
Meadows will be here shortly.
Federal employees who blow the whistle on waste, fraud, and
abuse are on the front lines in the effort to ensure that our
government functions efficiently and effectively. This
committee has a long history of strong bipartisan support for
those whistleblowers, and I want to thank the chairman, Mr.
Meadows, for holding today's hearing to examine how we can
continue to improve protections for those employees.
Whistleblower protection is rooted in civil service
protections. Due process and merit-based hiring and promotion
free of discrimination, retaliation, and political influence
form the bedrock of the very whistleblower protections we are
concerned about and have been for a long time on this committee
and subcommittee.
Five years ago, the bipartisan Whistleblower Protection
Enhancement Act of 2012 significantly strengthened the rights
of Federal employees who disclose waste, fraud, and abuse. This
legislation marks substantial progress, but as we discovered,
gaps remain, and we must continue to work to protect all
Federal employees who disclose wrongdoing.
I look forward to hearing from our witnesses today about
challenges to protecting those whistleblowers under current
law, such as vacancies at the MSPB, loopholes for sensitive
positions, retaliatory investigations, as well as proposals to
address those challenges. In fact, tomorrow this committee, the
Oversight and Government Reform Committee, will be marking up a
bill that I cosponsored, H.R. 657, the Follow the Rules Act.
Last year, a Federal court ruled that an employee who
refused to obey an order is protected from retaliation only if
that order violates a statute, which was never the intent of
the law. This bill clarifies that the Whistleblower Protection
Act, as originally intended, protects employees who refuse to
violate a rule or a regulation. It need not be a statute.
But legislative changes will not be enough. Congress must
provide inspectors general and the Office of Special Counsel
with the resources they need to investigate and enforce
whistleblower protections under the law.
For example, we've heard reports of egregious whistleblower
retaliation at TSA. OSC has already taken action in some of
those cases, but there is a backlog. Without additional
resources, these whistleblowers won't be protected; in fact,
one hears descriptions at TSA that sound like the Wild West.
And a lot of cleanup has to occur there, not only
whistleblowers but performance, measurements, and the like.
Finally, we can't ignore the committee's oversight
responsibility. I was alarmed to hear news reports last week,
only days after the inauguration, that certain Federal agencies
had issued gag orders on Federal employee communications. One
memo issued by the acting secretary of the Department of Health
and Human Services on the very first day in office of the new
President states, and I quote, ``No correspondence to public
officials, that is Members of Congress, governors and the like,
unless specifically authorized by me or my designee shall be
sent between now and December 3rd.''
That language, which ostensibly prevents an employee from
speaking with Members of Congress on his own, appears to
violate, however, a number of Federal laws, including the
Whistleblower Protection Enhancement Act itself. And it
certainly sends a chilling message to our Federal employees. So
I plan to send a letter to agency heads asking them what steps
they're taking to ensure that their communications to employees
comply with the law.
I ask my colleagues across the aisle to join in these
oversight measures. It's my hope that moving forward we can
work in a bipartisan manner, as we always have on this subject.
We must ensure that civil service and due process protections,
the bedrock of the Whistleblower Protection Enhancement Act,
remain in place and are vigorously enforced, and we must
provide diligent oversight to verify that agencies in this
administration are implementing the protections required under
the law.
And with that, I yield back.
Welcome, Mr. Chairman.
Mr. Meadows. [Presiding.] I thank the gentleman from
Virginia. And I also thank the gentleman from Florida for
gavelling us in, and certainly, thank each of you. My apologies
for being tardy.
The chair notes the presence of our colleagues from the
full Committee of Oversight and Government Reform. We
appreciate your interest in this topic and welcome your
participation today. And so with that, I ask unanimous consent
that all members of the Committee on Oversight and Government
Reform be allowed to fully participate. Hearing no objection,
so ordered.
I'm going to go ahead in the interest of time and skip my
opening statement and actually go with recognizing each of you,
and let's hear from you on that.
Mr. Connolly. Don't worry, Mr. Chairman, I pretty much--I
spoke for both of us.
Mr. Meadows. Oh, well, there's no doubt about that, knowing
that we are attached to the hip. But so I would--we'll hold the
record open for 5 legislative days for any member who would
like to submit a written statement.
Mr. Connolly. Mr. Chairman, could I ask just a quick
unanimous consent request. I have a statement from National
Treasury Employees Union for the record. I ask unanimous
consent it be entered into the record.
Mr. Meadows. Without objection, so ordered.
Mr. Connolly. I thank my friend.
Mr. Meadows. I'm pleased to welcome Mr. Robert Storch,
deputy inspector general at the U.S. Department of Justice.
Welcome; Mr. Eric Bachman, deputy special counsel for
litigation and legal affairs at the U.S. Office of Special
Counsel, welcome; Mr. Thomas Devine, legal director at the
government accountability project; and Ms. Elizabeth Hempowicz,
policy counsel at the project on government and oversight.
Welcome to you, all.
And pursuant to committee rules, we ask that all witnesses
be sworn in before they testify.
If you will please rise and raise your right hand. Do you
solemnly swear or affirm that the testimony you're about to
give will be the truth, the whole truth, and nothing but the
truth? I do.
Please let the record reflect that all witnesses answered
in the affirmative.
In order to allow time for discussion, we would appreciate
if you would please limit your testimony to 5 minutes.
But, Mr. Storch, before I come to you, the chair recognizes
the ranking member from the full committee, the gentleman from
Maryland, Mr. Cummings, for an opening statement.
Mr. Cummings. Thank you very much, Mr. Chairman. I really
appreciate your indulgence.
I want that thank Chairman Meadows and Ranking Member
Connolly for this hearing today. Whistleblower protections are
built on the foundation of our civil service system and its due
process protections. I look forward to the testimony today on
how we can continue to strengthen whistleblower laws to ensure
that all Federal employees who blow the whistle are protected.
The topic of today's hearing is the Whistleblower
Protection Enhancement Act of 2012, and it could not be a more
timely subject. I was an original cosponsor of this bill, which
significantly expanded the protections available to government
workers who risk their jobs to disclose wrongdoing. And we have
had a number of them to come before us over my 21 years in this
committee.
Unfortunately, it appears that the Trump administration in
its first week has already violated the Whistleblower
Protection Enhancement Act. Just last week, only days after
President Trump's inauguration, we learned that Federal
agencies issued gag orders on Federal employee communications,
including their communications with Congress.
For example, we have obtained one of these memos, which was
issued by the new acting secretary of the Department of Health
and Human Services. This memo tries to prohibit Federal
employees from speaking to Members of Congress. Let me repeat
that: The Trump administration is trying to prohibit Federal
employees from speaking to Members of Congress. Something is
absolutely wrong with that picture.
On its face, this memo violates the Whistleblower
Protection Enhancement Act because it does not include
mandatory language, that we in Congress required, to protect
whistleblowers who want to report waste, fraud, or abuse. We
required, and I quote, ``any disclosure policy, form, or
agreement,'' end of quote, to include a mandatory statement
that it does not supersede the rights of employees, including
specifically, quote, ``communications with Congress,'' end of
quote. And we passed this unanimously.
Now, my understanding is that the Trump administration
first tried to deny that memo was sent to its employees. Then
they reportedly sent out some kind of clarifying statement. But
my understanding is that even the clarifying statement still
failed to include the mandatory statement we required in the
Whistleblower Protection Enhancement Act.
Mr. Chairman, I ask that this committee--I ask this
committee to seek and obtain all emails and other
communications in the possessions of anyone at HHS relating to
this directive, its drafting, circulation, and subsequent
clarification, as well as any communications about prohibiting
Federal employees from speaking to Congress.
Will you join me in a letter to HHS and other agencies
requesting those documents, Mr. Chairman?
I'm just making a simple request, Mr. Chairman.
Mr. Meadows. Would the gentleman from Maryland repeat his
request? I'm sorry, I was otherwise engaged. That deer-in-the-
headlight look was because I had no idea what you asked.
Mr. Cummings. I apologize. I didn't mean to catch you off
guard, Mr. Chairman. And you have been absolutely wonderful and
a good bipartisan member, and I really appreciate it. But I
didn't mean to--what I said, I asked this subcommittee to seek
and obtain all the emails, and other communications in the
possessions of anyone at HHS, relating to a directive in the
drafting, and circulation, and subsequent clarification, as
well as, any communications about prohibiting Federal employees
from speaking to Members of Congress. I think that should be a
no-brainer for most of us.
Mr. Meadows. The gentleman knows very well that regardless
of who is in the White House, that the chairman believes that
having open communication between members of the Federal
Government and Members of Congress is something that should not
be inhibited. And so certainly, I'm open to following up and
making sure that we get clarification, and hopefully on this,
making sure that the message is loud and clear, that an open
and transparent government is not only something that this
committee supports but the administration supports as well.
Mr. Cummings. Thank you very much. I really appreciate it.
And I'm almost finished, Mr. Chairman.
This is not the only action that the Trump administration
has taken that could chill whistleblowers. In December,
President Trump's transition team asked for the names of
employees at the Department of Energy who had worked on climate
change initiatives. Another transition team request was made to
the State Department for information regarding staffing and
positions related to gender equity, and violence against women.
Just 2 days ago, White House spokesman Sean Spicer
announced that State Department employees who voiced dissent
regarding President Trump's immigration order should, quote,
``either get with the program or they can go,'' end of quote.
To quote Walter Shaub, the director of the Office of Government
Ethics, quote, ``Tone from the top matters,'' end of quote.
I fear the President's tone will discourage whistleblowers
from reporting waste, fraud, and abuse, exactly the opposite of
what we hope to accomplish through the Whistleblower Protection
Enhancement Act. There's still time for this administration to
change.
In a letter I wrote with my colleague, Ranking Member
Pallone, to White House counsel Donald McGahn, we requested
that the President take immediate action to rescind all
policies on employee communications that do not comply with the
Whistleblower Protection Enhancement Act.
We also urged the President to issue an official statement
making clear that all Federal employees have the right to
communicate with Congress and will not be silenced or be
retaliated against for their disclosures. I urged the President
to adopt these recommendations immediately and send a clear
signal to Federal employees that whistleblowers will be
protected, as this committee has made it clear, on both sides
of the aisle, we will protect whistleblowers to the nth degree.
And with that, Mr. Chairman, I appreciate your indulgence,
and I yield back.
Mr. Meadows. I thank the gentleman. The chair is certainly
committed to making sure that we have an open and transparent
accountability. And I think that that serves the American
taxpayer well regardless of party, regardless of any partisan
outlook. And so I look forward to working with not only the
ranking member of the full committee but the ranking member of
the subcommittee on that.
And with that, Mr. Storch, I recognize you for 5 minutes. I
apologize to some of your staff who was actually here earlier
today, and so you're recognized for 5 minutes.
WITNESS STATEMENTS
STATEMENT OF ROBERT P. STORCH
Mr. Storch. Thank you, Mr. Chairman, Ranking Member
Connolly, and members of the subcommittee.
Whistleblowers perform an invaluable service when they come
forward with what they reasonably believe to be evidence of
wrongdoing, and they should never suffer reprisal for doing so.
Thank you for inviting me to speak today about the important
role that the Offices of the Inspectors General play under the
WPEA with regard to informing whistleblowers about their rights
and protections.
I have served as a whistleblower ombudsperson at the DOJ
OIG since our program was established in the summer of 2012. In
November of that year, the WPEA was enacted requiring the
creation of such positions in the offices of all
presidentially-appointed, Senate-confirmed IGs, and many
designated Federal entity IGs have such programs as well.
We are responsible under the act for educating agency
employees about the prohibitions on retaliation for making
protected disclosures and informing employees who have made, or
are contemplating making, disclosures about their rights and
remedies against retaliation. The DOJ OIG strongly supports
reauthorization of this important provision.
The OIG's work in this area is entirely consistent with the
importance of whistleblowers as reflected in the Inspector
General Act itself, which specifically provides for OIGs to
receive and investigate complaints provided by agency employees
and to protect their confidentiality and prohibits the taking
of personnel actions against them for coming to us.
Just as OIGs are well placed within agencies to detect and
deter waste, fraud, abuse, and misconduct, whistleblowers are
very much at the front lines, direct witnesses to potential
wrongdoing, and they play a critical role in bringing forward
such information. Ensuring that whistleblowers are comfortable,
informed, and protected is therefore of central importance to
the OIG's core mission.
We, and many of our fellow OIGs, carry out our role under
the WPEA by creating and disseminating educational materials
and conducting training programs. At DOJ OIG, we filmed an
instructional video that is now required viewing for all DOJ
managers and supervisors and available online for all
employees.
We also prepared informational fliers that have been posted
in offices throughout the Department with contact information
for the OIG and the Office of Special Counsel, which plays a
central role in addressing many cases of suspected reprisal.
We have worked with the FBI and other components to develop
particularized training programs for their workforces, and in
the case of the FBI, to address the specific requirements
applicable to its employees, including, under the recently
enacted FBI WPEA.
We, and other OIGs, also prepared informational brochures
for employees of department contractors, subcontractors, and
grantees. And like many of our counterparts, we created a
robust page on our website with a range of information
regarding whistleblower rights and protections.
Shortly after the passage of the WPEA, we worked through
the Council of the Inspectors General to create a working group
which meets quarterly to share information, discuss best
practices on current issues, and host speakers from within an
outside government.
Our colleagues from OSC have been active participants,
providing their expertise, and facilitating coordination and
cooperation between OSC and the OIGs. And representatives of
many other leading groups, including both GAP and POGO have met
with us as well.
The working group also has facilitated meetings with
congressional members and staff to discuss these issues, and we
partnered with OSC, OSHA, and congressional staff in organizing
last summer's successful celebration here at the Capitol of
National Whistleblower Appreciation Day.
As Congress considers reauthorization of the ombuds
provision, I'd close by mentioning a couple of areas that have
surfaced in the working group: First, the work we do generally
does not include much of what is often done by traditional
ombudsmen. And some of their activities might even be seen as
inconsistent with our independent position as OIGs. This may
result in some confusion about our roles, and I would be
pleased to work with the committee to discuss possible ways to
address this.
Second, many of the working group discussions have
reflected what we found at DOJ; namely, that both our
educational activities and the underlying whistleblower
reprisal investigations are resource intensive. And our ability
to do this, along with our other responsibilities, is impacted
by the limitations on our available staffing and resources. Our
work in this area is only expected to increase as whistleblower
rights and protections are expanded and made permanent and more
educational activities take place.
I'd be pleased to work with you and your staffs on these
issues. Thank you for the opportunity to speak with you today.
And I'd be happy to answer any questions you might have. Thank
you.
[Prepared statement of Mr. Storch follows:]
[GRAPHICS NOT AVAILABLE IN TIFF FORMAT]
Mr. Meadows. Thank you so much.
Mr. Bachman, you're recognized for 5 minutes.
STATEMENT OF ERIC BACHMAN
Mr. Bachman. Thank you.
Good afternoon Chairman Meadows, Ranking Member Connolly,
and members of the subcommittee.
Thank you for the opportunity to testify today about the
U.S. Office of Special Counsel and our enforcement of the
Whistleblower Protection Enhancement Act, the WPEA.
My testimony today will discuss the key parts of the WPEA,
how its new safeguards have helped OSC protect more
whistleblowers than ever, and suggestions on how to make the
law more effective.
OSC is an independent agency, and one of our primary
missions is to protect employees from whistleblower
retaliation. Since the WPEA was enacted nearly 5 years ago, the
number of whistleblower retaliation complaints filed with our
office has increased by 15 percent, and we've helped a record
number of whistleblowers.
For example, OSC has increased the number of favorable
outcomes from whistleblowers by 150 percent; we've increased
the disciplinary actions against retaliators by 117 percent;
and we've taken further steps to strengthen the whistleblower
law through our amicus briefs and our outreach programs. These
protections are important because whistleblowers are a vital
tool in rooting out waste, fraud, and abuse in the government
and have helped saved hundreds of millions of taxpayer dollars.
And we want to thank Congress and this committee for its
forceful, bipartisan support of Federal whistleblowers in OSC.
In particular, we thank Representative Blum for his sponsorship
of H.R. 69 to reauthorize OSC, which passed the House earlier
this year. This committee's enthusiastic backing has made our
office far more effective in helping whistleblowers, and we
look forward to continuing this productive relationship in the
new Congress and beyond.
The WPEA is landmark legislation, and it has unmistakably
helped Federal whistleblowers. The WPEA provided many new
protections, including, among other things, authorizing OSC to
help shape the whistleblower law by filing friend-of-the-court
briefs, bolstering the remedies that are available to
whistleblowers who win their retaliation claims and granting
full whistleblower protections to all TSA employees.
And for every new safeguard in the WPEA, OSC has succeeded
in securing victories for whistleblowers. For example, we used
our new amicus authority to file a brief with the Supreme Court
in the Department of Homeland Security vs. MacLean case. And in
a seven-two decision, the Supreme Court agreed with our
arguments on behalf of the whistleblower. And since 2012, OSC
has received and investigated about 243 whistleblower
retaliation cases from TSA employees, which we would not have
been able to investigate prior to the WPEA.
Another new element of the WPEA is this anti-gag order
provision, which ensures that whistleblower protections
supersede any agency nondisclosure agreements or policies. It
requires that any nondisclosure agreement or policy include
language that clearly states that the employee may still blow
the whistle even if they have signed the agreement or are
subject to the policy. OSC has vigorously enforced this anti-
gag provision, and since 2013, we've obtained nearly three
dozen corrective actions and also issued specific guidance to
agencies on this important topic.
The WPEA also contains two valuable provisions that are set
to expire at the end of this year: The whistleblower protection
ombudsman program that Mr. Storch discussed, and the all
circuit appellate review program. OSC strongly recommends that
both of these programs be made permanent.
Finally, although the WPEA has undeniably strengthened
protections for Federal whistleblowers, further enhancements
should be considered. For example, the WPEA sets a higher
evidentiary burden for disclosures that are made in the normal
course of duties. Congress intended this heightened burden to
apply to jobs like investigators and auditors, where
investigating reporting wrongdoing is an everyday job function.
But recent court decisions have applied this heightened
burden to a much broader universe of jobs, jobs like teachers
and purchasing agents. And this risks making it harder for many
Federal employees to be able to prove their whistleblower
retaliation claims. So we recommend that Congress clarify that
this additional burden applies only to that small subset of
Federal workers who investigate and report wrongdoing as a core
job function.
We greatly appreciate the committee's robust support for
office and for Federal whistleblowers. I thank you for the
opportunity to testify, and I'm happy to answer your questions.
[Prepared statement of Mr. Bachman follows:]
[GRAPHICS NOT AVAILABLE IN TIFF FORMAT]
Mr. Meadows. Thank you, Mr. Bachman.
Mr. Devine.
STATEMENT OF THOMAS M. DEVINE
Mr. Devine. Thank you. This hearing is significant because
action is essential to address newly emerging threats in
loopholes that obstruct or circumvent the WPEA's mandate, and
because 2017 will be the year of truth for unfinished business
on the due process structure to enforce the law's rights. If
Congress acts effectively, after 39 years whistleblowers will
have legal rights on which they can rely, a genuine metal
shield against retaliation.
2016 continued a pattern since the WPEA's passage. The last
5 years have been the best and worst of times for
whistleblowers. My written testimony summarizes encouraging
news about closing the loopholes, Supreme Court support for the
law, the Office of Special Counsel's effective track record,
and unprecedented impact from whistleblowers in making a
difference.
To illustrate the latter, in Supreme Court oral arguments
for Air Marshal Robert MacLean, whose disclosures stopped TSA
from going AWOL during a more ambitious rerun of 9/11, we
argued that Mr. MacLean acted to better protect the Nation.
Justice Scalia interjected, ``And he was successful.'' It's no
wonder that whistleblowers are receiving more respect than ever
before.
Unfortunately, it is the sad truth that the Office of
Special Counsel's track record of 5.2 percent corrective action
against retaliation reflects the best option that exists. As a
rule, employee rights under the Whistleblower Protection Act
continue to be a mirage when agencies violate them, and
whistleblowing is more dangerous than ever before.
Consider four primary causes: The first is administrative
agency enforcement. Despite best efforts, the special counsel
is hampered by resource-based tradeoffs that result in almost
no litigation and excessive delays that unemployed
whistleblowers cannot afford and that undermine the relevance
of its decisions on current events.
Special counsel can never be more than anecdotal source of
justice that makes impressive points. To consistently achieve
the X purpose, no remedial agency can substitute for due
process. And unfortunately, whistleblowers are not getting it
at the Merit Systems Protection Board.
Board members have been good-faith, responsible stewards of
the act, but the hearings are conducted by administrative
judges who are openly hostile to the act, ruling against
whistleblowers from 95 to 98 percent of the decisions on the
merits. When you combine that with OSC's 5 percent corrective
action rate, whistleblowers do not have more than a token
chance of justice under this law.
Consider the ordeal of Kim Farrington, who is an FAA
inspector, fired after she challenged the Agency's failure to
assure proper training of flight attendants. Her case has been
pending for 7 years. In 2012, the board overturned a hostile
administrative judge decision but remanded rather than
reversing. The AJ then held a hearing but never issued a
decision. When the AJ retired, a new judge was appointed, who
held another hearing in December 2013, but again did not rule.
In May 2016, Ms. Farrington protested the delays to the
full board and the administrative judge promptly responded with
a June decision that rejected all of her claims without even
referencing the hearing audiotape. There was no transcript
because the court reporter had died during the delays. Her case
is again on appeal, but due to vacancies, the board cannot
issue decisions and there is no end in sight.
The lack of credible due process at the MSPB is the
Whistleblower Protection Act's Achilles heel. Shifting tactics
have made the law less effective. Because it is more difficult
to fire employees, agencies are opening more retaliatory
investigations with criminal prosecution referrals. And
currently, there is no defense against this even uglier form of
harassment.
Then there's the sensitive jobs loophole, an all-
encompassing national security loophole that will subsume the
entire merits system if Congress does not act.
And finally, there is lack of acceptance. Mr. MacLean's
experience is a microcosm. Immediately after his victory, TSA
lagged 4 months and then assigned him to air marshal missions
on flights to the Mideast despite intelligence that ISIL was
combing the internet to find the identities of undercover air
marshals, and he was the most visible air marshal in history.
After the OSC intervened, the Agency reassigned him to an
empty room with no duties for 4 months. It refused to consider
him even routine promotions, forcing him into bankruptcy.
Although he continues to make impressive disclosures on
security breaches, they will not assign him any duties due to
lack of seniority caused by his own illegal termination. It
held up processing his security clearance for 10 months,
although required to forward it within 14 days. He has still
lost by winning due to the poor attitudes.
Mr. Chairman, my written testimony has a full menu of
suggestions for how we can deal with these challenges. Thank
you.
[Prepared statement of Mr. Devine follows:]
[GRAPHICS NOT AVAILABLE IN TIFF FORMAT]
Mr. Meadows. Mr. Devine, thank you so much for your
passionate and articulate testimony. And I can assure you that
we will be following up in earnest. Some of these things are
things that we were aware of; some, obviously not, but working
with OSC in making sure that their success rate is greater and
not laborious is something that this committee is committed to.
But thank you so much.
Ms. Hempowicz.
STATEMENT OF ELIZABETH HEMPOWICZ
Ms. Hempowicz. Ranking Member Cummings, Subcommittee
Chairman Meadows, and Ranking Member Connolly, and members of
the Subcommittee on Government Operations, thank you for
inviting me to testify today and for your dedication to
ensuring proper implementation of whistleblower protections.
Five years ago, Congress passed the Whistleblower
Protection Enhancement Act, closing many loopholes and
upgrading protections for Federal workers who blow the whistle
on waste, fraud, abuse, and illegality. The WPEA codified an
anti-gag statute championed by Senate Judiciary Committee
Chairman Senator Chuck Grassley that requires agencies to issue
a statement notifying employees that statutory rights to
communicate with Congress and whistleblower protections
supersede agency restrictions on disclosures or communications.
In addition, the WPEA clarified that any whistleblower
disclosure may be protected, including when a whistleblower
makes a reasonable disclosure to his or her supervisor even if
that supervisor is involved in the wrongdoing. Similarly, it
clarified that a whistleblower's intent in making a disclosure
should not be factored in when determining whether he or she
made a protected disclosure. These changes provided essential
channels to report through and prioritized disclosing
wrongdoing as being the primary public interest.
Finally, the law created a pilot program for Federal
employees who appeal a judgment of the Merit Systems Protection
Board to file their appeal in any U.S. Court of Appeals with
jurisdiction. This committee led the charge in extending that
pilot program 2 years ago and should now work to make that
right permanent.
While the positive impact of this law is significant, its
enforcement has not been without issue. A report released by
Senator Grassley, 2 years after the passage of the WPEA,
revealed that only one agency out of the 15 studied was fully
compliant with the anti-gag provision of the law. This
important provision has been called into question as recently
as last week when several agencies ordered staff to cease or
limit external communications.
As members of this committee have recognized, these
directives may violate the law. Efforts to prevent government
employees from communicating with Congress and the public could
represent a serious threat to public health and safety, and
continued congressional oversight is necessary to make sure
that this important provision continues to be implemented
properly.
Despite broad protection laws like the WPA and the WPEA,
the totality of whistleblower protection laws include a
patchwork of protections dependent on where a whistleblower
works in the government and in what capacity. The WPEA afforded
new and necessary protections to many Federal employees when it
was enacted, but it excluded intelligence community contractors
despite having a proven track record of success with previous
protections.
Although IC contractor whistleblowers have some protection
under presidential policy directive 19, it is too narrow to be
considered comprehensive and can be revoked at the President's
discretion. Whistleblowers must have safe channels to report
abuses of power that betray the public trust, and Congress has
a responsibility to fill these accountability loopholes. The
next round of whistleblower protection legislation must include
protections for intelligence community contractors.
Congress should also consider requiring mandatory
punishment against supervisors who retaliate against
whistleblowers. Without mandatory punishment for those who
retaliate, there is no substantial deterrence to violating
these laws.
Any legislation should carefully balance due process rights
of employees accused of retaliatory actions with the proper
chance to present a defense and appeal a final decision.
Recently passed legislation creates a minimum 12-day unpaid
suspension when a complaint that a supervisor has retaliated
against a whistleblower is substantiated. This should serve as
a model.
As you mentioned, Ranking Member Connolly, it is also
important to update the law to undue a recent curtailing of
whistleblower protections in cases where Federal employees
refuse to obey an order that would break a rule or regulation
created by the agency.
Another area of concern is the implementation of former
President Obama's insider threat program. This program was
created in order to ensure responsible sharing and safeguarding
of classified information. It includes a provision prohibiting
the use of the program to identify or prevent lawful
whistleblower disclosures. Despite this, we've repeatedly seen
government training materials conflate whistleblowers like
Thomas Drake with terrorists like the Fort Hood and Navy Yard
killers.
The Office of the Director of National Intelligence has
assured POGO that these errors have been corrected and its
general counsel's office has fastidiously implemented
whistleblower protection training for the intelligence
community. However, increased congressional oversight may be
helpful to make sure this program isn't used improperly.
Additionally, the House should create a whistleblower
ombudsman office to train congressional staff on working with
whistleblowers and to provide assistance and advice to staff on
working with whistleblowers.
Many of these issues that I have raised in my testimony
hinge on congressional oversight. Passing stronger laws is a
necessary first step, but continued congressional oversight
ensures that whistleblowers are championed and not punished. I
look forward to your questions, and thank you again for holding
this important hearing.
[Prepared statement of Ms. Hempowicz follows:]
[GRAPHICS NOT AVAILABLE IN TIFF FORMAT]
Mr. Meadows. Thank you so much for your testimony.
I'll now recognize the gentleman from Florida, Mr. Ross,
for 5 minutes.
Mr. Ross. Thank you, Chairman.
And I thank the panel for being here very much.
You know, as we talk about the WPEA, it leads one to
believe that it should have a dual purpose: First being a
shield, a shield to protect those who have seen the wrongdoings
or the corruption and allow them the opportunities and, quite
frankly, the incentives to report them; and then it should be a
sword as well. It should be a sword to be able to go in and cut
off the wrongdoing and enforce what needs to be done.
But it seems, through some of this testimony, that the
sword has been turned back and it has been turned back on the
whistleblower. And so my first question is to Mr. Storch in
regards to retaliatory investigations. It said that for every
one whistleblower complaint that in most cases there's a
counter complaint against them by the person whom the complaint
is lodged.
So now, is this something that is routine for you or any
other inspectors general to investigate as to the source or the
circumstances surrounding the complaint to see if it may be a
counter complaint?
Mr. Storch. Thank you very much for the question. I mean,
it raises important issues. Obviously, as inspectors general,
we receive information in our offices from employees throughout
our departments that we oversee, right. And one of the things
we always take into account is the source of the information,
and we evaluate that as we evaluate the information.
People may have lots of reasons they come forward. That
doesn't in any way invalidate the information that they provide
and, in fact, it can be very important information for us to
have in order to conduct our oversight functions.
So, the primary thing we want to do is encourage people to
be able to come forward and to be comfortable coming forward
knowing that they'll be protected under the WPEA in doing so.
Mr. Ross. But will they be protected? I mean, will they
really be protected? In other words, they make themselves
subject of a counter complaint if they're not careful. And I
think that's the protection I'm trying to make sure that we can
nip in the bud, either through cross-referencing in the
complaints or maybe there's a logarithm that can be worked out
to find out that.
Mr. Storch. Right. No, it's a difficult question, and I
think our colleagues from OSC referred to it in their prepared
statements; that there certainly are competing interests here
because we want to encourage legitimate investigations, but we
don't want to have investigations be used to in any way deter
people from coming forward with information.
Mr. Ross. I agree.
Mr. Storch. And so the question is how do you strike that
balance----
Mr. Ross. And protect due process.
Mr. Storch. --in a way that protects whistleblowers and
encourages them to come forward. And we certainly would be very
happy to continue to work with OSC, with you, and the committee
on this.
Mr. Ross. And that leads me to my next question, Mr.
Bachman, with regard to the OSC. How important is subpoena
power?
Mr. Bachman. Thank you for the question. The subpoena power
for us, we currently have under an OPM rule----
Mr. Ross. For documents or for testimony?
Mr. Bachman. For both.
Mr. Ross. Okay.
Mr. Bachman. But the issue that we have, it's really a
related issue, is our access to information where we think it
would be extremely helpful for Congress to clarify, give us
statutory direct access to all relevant information and
documents and witnesses and not be subject to perhaps an
incorrect assertion of attorney/client privilege by the Agency,
similar to what the IGs currently have. So having that ability
to know what the Agency knows so that we can investigate
whether wrongdoing occurred is essential.
Mr. Ross. So if somebody files an objection to a subpoena,
what's the court of competent jurisdiction there? Is it an ALJ?
Is it--who decides whether there should be enforcement? Do they
have to come--where do they go?
Mr. Bachman. It's unfortunately a cumbersome process.
Mr. Ross. Yeah.
Mr. Bachman. We need to go to the MSPB and ask----
Mr. Ross. That doesn't have a quorum now----
Mr. Bachman. Exactly, yes.
Mr. Ross. --which Mr. Devine pointed out is problematic.
Mr. Bachman. So they would not be able to move forward with
that. If there was a quorum, the MSPB, not OSC, would make the
decision of whether or not to attempt to enforce that subpoena.
Mr. Ross. And then that subpoena, if still objected to,
would have to be enforced eventually----
Mr. Bachman. In district courts, yes.
Mr. Ross. --in district courts. Okay.
Lastly, Mr. Bachman, there has been some positives with the
WPEA, but one of the things has been its lack of enforcement
where I really think the sword should be. Can you articulate in
any way what additional measures of enforcement may be
necessary in order to make it really effective.
Because as one who is a student of the law, you know,
deterrents have an impact on future behavior and future
performance, especially if somebody decides that they don't
want to have that repercussions against them if they know what
the law will be and how it is enforced. Any suggestions as to
further enforcement or additional enforcements of the WPEA?
Mr. Bachman. Yes. We couldn't agree more that disciplinary
actions play an important deterrence role in the Federal
Government. They have ripple effect. They show that managers
can be held accountable.
At OSC though we have made a decision though that we need
to prioritize getting the whistleblower back on their feet and
back on their job and protect them first----
Mr. Ross. Yes.
Mr. Bachman. --to the extent we can though. I think we are
proud of the fact that we've been able to increase the number
of disciplinary actions by 117 percent since the WPEA was
passed. Of course with additional resources, I think we can do
even better than that.
Mr. Ross. Look forward to working with you on that.
And I yield back. Thank you.
Mr. Meadows. I thank the gentleman.
The chair recognizes the gentleman from Virginia, the
ranking member, Mr. Connolly.
Mr. Connolly. I thank my friend, and welcome, again, to our
panelists.
Mr. Storch, do you recall that back in 1988, a long time
ago, then-Senator Chuck Grassley--who is still with us in the
Senate, been there a long time--he had something called the
anti-gag rule. Can you describe that to us if you're familiar
with it.
Mr. Storch. I'm not familiar with the rule.
Mr. Connolly. Anyone familiar with it? Yes, Mr. Devine.
Mr. Meadows. If you'll hit your mic, please.
Mr. Devine. Thank you. It was instituted in December 1988
to thwart a nondisclosure policy being ordered throughout the
Federal Government that prevented employees from disclosing
classifiable information without prior approval.
And since classifiable is designed as any information that
could or should have been classified, it created basically a
backdoor official secret set. The restrictions on funding to
implement or enforce that were passed unanimously without
exception through the time of the WPEA when Congress codified
both rights, sir.
Mr. Connolly. And it was in some ways designed, was it
not--well, that anti-gag rule, even writ larger, it was
ultimately incorporated into the Whistleblower Protection Act.
Is that correct?
Mr. Devine. Yes, sir.
Mr. Connolly. And so let me ask you this: We have the
acting secretary of the Department of Health and Human Services
on the very first day of the new administration writing, quote,
``No correspondence to public officials, for example, Members
of Congress and governors''--his example, not mine--``unless
specifically authorized by me or my designee shall be sent
between now and February 3rd.'' How does that comport with the
anti-gag provision of the Whistleblower Protection Act?
Mr. Devine. Well, the official who issued the order said,
new team, new rules. But those new rules cancel the rule of
law, Congressman. It violates three provisions in the
Whistleblower Protection Enhancement Act. It violates two
appropriations writers. It violates the Lloyd LaFollette Act of
1912, and by the way, the First Amendment.
Mr. Connolly. Oh. Other than that, it's just helpful
guidance? Yeah, okay.
Anyone else on the panel want to comment on that? Mr.
Storch. Mr. Devine has just said, what I read from a member of
the new administration, violates the law, a number of laws, and
the Constitution itself in a number of respects.
Mr. Storch. Yes, sir.
Mr. Connolly. You're from the Department of Justice. Would
you concur?
Mr. Storch. I was a prosecutor at the time of Senator
Grassley's rule that you referred to, but I have been with the
Office of the Inspector General and acting as the ombuds for
our OIG for the last 4 and-a-half years. And I'm very familiar
with the provision in the WPEA that requires that appropriate
language be put in place in any policy or agreement that would
attempt to deter communications by whistleblowers,
communications with Congress. And the law seems quite clear in
requiring that. And anything that doesn't do that, that falls
within those parameters, would be in violation of that
provision of the WPEA.
Mr. Connolly. You would concur, Ms. Hempowicz?
Ms. Hempowicz. I would, and I would even go a little bit
further. Even if these statements or these guidance documents
are reissued with the disclaimer that they're required to have,
they've already had a chilling effect. So that, you know, I
would encourage this committee to continue its rigorous
oversight and keep watching.
Mr. Connolly. I mean, what could go wrong with the chilling
effect?
Ms. Hempowicz. Well, if you don't have whistleblowers
feeling like they can come forward through protected channels,
you'll see more and more increased leaks to the media, to the
press. And I think you always want the strongest whistleblower
protections in place because you want to incentivize people
within an agency to go through those proper channels.
And they're not going to if they're not going to be safe
from reprisal, but they're also not going to go through those
channels if they don't find that they're meaningful channels,
if they don't see that the complaints that they're making to--
through those proper channels are being taken seriously and
addressed within the agency.
Mr. Connolly. And one might note that this committee
historically has been the recipient of whistleblower
information that has often led to useful legislation and
sunshine hearings that, you know, spotlight an issue that
otherwise wouldn't get covered.
So the chilling effect in deterring people or discouraging
people from providing that information to elected Members of
Congress actually can really preclude the ability to reform and
fix problems we identify because we're not identifying them.
I yield back.
Mr. Meadows. I thank the gentleman.
The chair recognizes the gentleman from Iowa, Mr. Blum, for
5 minutes.
Mr. Blum. Thank you, Mr. Chairman.
Thank you to the panel for being here today.
My questions are primarily for Mr. Storch or Mr. Bachman.
How many whistleblowers have there been over the last 2 years,
the last session of Congress?
Mr. Bachman. Thank you for the question. I can tell you,
for OSC, this past year we received a total of 6,000 complaints
across all of our program areas. Of those 6,000, 2,000 alleged
that they had been retaliated against for blowing the whistle,
and that's consistent over the last 2 years.
Mr. Blum. So a third of them.
Mr. Bachman. So let's say, 4,000, about 4,000 from our
office.
Mr. Blum. Is that trend up or down, number of
whistleblowers that we are aware of?
Mr. Bachman. That trend is up.
Mr. Blum. And why do you think so?
Mr. Bachman. I think there's several different factors. I
think, number one is the enhanced outreach and education that
OSC, the IGs, the ombudsmen have been doing throughout the
government. People are----
Mr. Blum. Ombudsperson.
Mr. Bachman. Excuse me, yes. Thank you for that.
Mr. Blum. I do the same thing.
Mr. Bachman. Although that is what is in the law. But I
think more and more agencies and employees are better informed
about their rights and where to go to make these complaints. I
think there has been increased attention through Congress and
the media on these rights, and I think it's encouraged more
people to come forward with complaints.
Mr. Blum. Of these cases, how many were threatened by
management, either explicitly or implicitly?
Mr. Bachman. Of the whistleblower retaliation cases we get,
most--I mean, I would say almost all of them are----
Mr. Blum. So the 2,000 of the 6,000?
Mr. Bachman. Yes, are saying that they have been subjected
to some sort of personnel action.
Mr. Blum. And then how many positive outcomes? And would
you define a positive outcome.
Mr. Bachman. Positive outcome covers a range of issues. It
could be us settling the case, or helping to settle the case
between the whistleblower and the employee where they get their
job back, they get some sort of damages for backpay if they
were out of their job, maybe they get a suspension rescinded,
or were able to temporarily halt their termination while we
investigate it. So those are the types of things that we'd say
are a favorable outcome.
For whistleblowers, over the last couple of years coming to
our office, it's ranged about 200 favorable outcomes a year for
whistleblowers coming to our office.
Mr. Blum. Do you need more staff?
Mr. Bachman. Absolutely, we could use more resources. We
are stretched to capacity. Our folks are doing a fantastic job.
They're achieving record levels of successes, but they're also
carrying caseloads that are two or three times as high as they
normally would be.
Mr. Blum. I'm from the private sector, from Iowa, and
there's a perception there, as across the Nation, I think, that
the Federal Government is bloated, that the Federal employees
are overpaid, and most importantly, it's next to impossible to
terminate a Federal employee. And I know it's not particularly
your area of expertise, but what we're talking about here's
accountability.
So I'd like to ask, in the context of whistleblowers and
retaliation, what happens to the manager, the supervisor who
threatened the retaliation? What happens? Because, you know,
often people sit here and they've done things that are, you
know, it's waste, fraud, and abuse, and I ask, did you get a
bonus? The answer is yes. Did you get promotion? Half the time
it's yes. Worst case is they get reassigned.
Where is the accountability in Federal Government? What
happens to supervisors who threaten retaliation against a
whistleblower? What happens?
Mr. Bachman. That's an excellent question, and we couldn't
agree more about the importance of the deterrence factor when
it comes to disciplinary actions. As I mentioned, we have
increased our rate of achieving those by over 100 percent,
but----
Mr. Blum. What kind of number are we talking about?
Mr. Bachman. We're talking going from 23, in the years
prior to the WPEA, to 50 over the last 4 years. But in addition
to that----
Mr. Blum. So 50 out of 2,000?
Mr. Bachman. Fifty out of the 2,000, although I do want to
clarify one issue on that denominator of 2,000. When we're
talking about that, that 2,000 number includes a number of
cases, for example, 15 percent, that are actually
discrimination claims which we defer to the agency process on
that. So we don't handle those.
Another 12 percent or so we don't have jurisdiction over,
and then another portion of that just don't meet the statutory
limits.
Mr. Blum. How can we increase that? It's such a serious
thing for a supervisor to retaliate against an employee who is
trying to do well, trying to do something good for the
taxpayers. We need to increase that number.
Mr. Bachman. Excuse me, I'm sorry. Resources absolutely
would help. But I do want to add that there are other ways that
we help to get discipline imposed, for example, through our
disclosure process. With the VA, over the last couple of years,
the VA alone has disciplined about 40 or actually more than 40
employees who were implicated in wrongdoing that was brought to
light by whistleblowers coming to OSC and us referring that
case to the VA. They subsequently disciplined those employees.
So it doesn't always have to be a formal investigation into
whistleblower retaliation that leads to this accountability. It
can happen through our other program areas as well, and it
does.
Mr. Blum. Once again, thank you to the panel.
And Mr. Chairman, I yield back the time I do not have.
Mr. Meadows. I thank the gentleman from Iowa.
The chair recognizes the gentlewoman from New Jersey, Mrs.
Watson Coleman.
Mrs. Watson Coleman. Thank you, Mr. Chairman.
And thank you all for coming and for your testimony.
We heard reports last week that multiple Federal agencies
issued gag orders on Federal employee communications. And one
of the memos obtained by the committee appears to specifically
prohibit employees from speaking to Congress, in violation of
the Whistleblower Protection Enhancement Act.
And now White House press secretary Sean Spicer has
declared that State Department employees who utilize the
Department's dissent channel to object to the President's
executive order on immigration should, quote, ``Get with the
program or they can go,'' closed quote.
Mr. Devine, do you believe that the State Department's
dissent channel is a means by which the State Department
employees can blow the whistle?
Mr. Devine. Yes, ma'am, and indeed, it's the type of
channel that the posters on the wall of every office in the
government direct employees to bring their concerns if they
want to blow the whistle. This is the proper channels that
you're supposed to use if you're a public servant who's
following in respecting the Code of Ethics.
It is incompatible with the Whistleblower Protection Act to
threaten people with termination or ask them to leave because
they're doing what the Code of Ethics says they're supposed to.
Mrs. Watson Coleman. Thank you. I think you answered my
second question.
So is it your understanding that communication in this
manner through this dissent channel should be protected?
Mr. Devine. There could be no credible disagreement that
under the laws as it's written, that's legally protected
speech, and there should be discipline against those who try to
cancel the flow of information to Congress.
To respond to the earlier question, one way to achieve some
deterrence would be empowering judges, whether they're
administrative or article III court judges, to order discipline
as part of the relief when they find a violation of the
Whistleblower Protection Act. They could do it on the same
record instead of expecting the OSC to do it for them.
Mrs. Watson Coleman. Would you say that if indeed the White
House press secretary threatened those employees by saying
that, quote, ``Get with the program or they can go,'' that that
sounds like a potential violation of the Whistleblower
Protection Act's prohibition on taking or threatening to take
retribution against whistleblowers?
Mr. Devine. Well, Mr. Spicer didn't have the--he's not
eligible to violate the Whistleblower Protection Act because he
can't recommend or take a personnel action. But he wasn't
speaking for himself.
Mrs. Watson Coleman. Absolutely.
Mr. Devine. So the people behind that policy were violating
the law.
Mrs. Watson Coleman. So I'm glad to hear that and sorry to
have to deal with that issue, because I certainly am alarmed by
the tone that the President Trump has said in his first few
days in office. But he certainly does have the time to make
changes that would create a better tone.
I'd like to enter into the record a letter dated January
26, 2017, from Ranking Member Cummings and Ranking Member
Pallone to the White House counsel, Donald McGahn. And I have
it right here.
Mr. Meadows. Without objection.
Mrs. Watson Coleman. Thank you.
This letter recommends that the President immediately
rescind all policies on employees' communications that do not
comply with the Whistleblower Protection Enhancement Act. Mr.
Bachman, do you agree with this communication?
Mr. Bachman. Thank you for the question. And I can't speak
directly on this issue because I don't want to prejudge a case
or an investigation that may come before my office, but what I
can do is speak more broadly about the idea that everybody
shares the goal of cutting waste, fraud, and abuse in our
government.
But in order to do that, you have got to encourage
whistleblowers to come forward. They're the ones who know about
that waste, fraud, and abuse. And tone at the top really
matters in these situations. And that's what's going to
encourage and give employees that comfort that if they come
forward they're not going to be retaliated against.
So on a broader level, we have two recommendations here:
The first is that to cure any potential chilling effect on
whistleblowing that nondisclosure agreements or policies may
have had, agency leadership, once they're installed, or if
they're already installed, should make it very clear in writing
to all their employees that any nondisclosure agreements or
policies that went out do not wipe out whistleblower
protection.
Mrs. Watson Coleman. Thank you.
Just really quite briefly, do you believe that it is
important that the President of the United States set the tone
by stating affirmatively that there is whistleblower
protection; that individuals do have the right to speak to
Congressmembers; and that, there is nothing that this
administration will do that will place any daunting upon
whistleblower protection? That's a yes or no, and if you would
each just give me a yes or no on that, I'd appreciate it.
And thank you, Mr. Chairman.
Mr. Meadows. Yes. The gentlewoman's time has expired, but
please, you can give a brief answer, each one of you.
Mr. Bachman. Yes, tone at the top is critical, and support
of whistleblowers is paramount.
Mr. Storch. I agree.
Mr. Devine. Yes, if the President wants whistleblowers to
help him drain the swamp, he can't feed them to the alligators,
ma'am.
Ms. Hempowicz. I agree, and I think it's important for any
incoming administration to make that clear from the beginning.
Mrs. Watson Coleman. Thank you.
And thank you, Mr. Chairman, for your indulgence.
Mr. Meadows. I thank the gentlewoman.
You'll be pleased to hear that today Chairman Chaffetz and
I are joining Senate Judiciary Committee Chairman Chuck
Grassley to send a letter to the White House encouraging it to
use whistleblowers as an ally to identify waste, fraud, and
abuse, and mismanagement of the Federal Government.
We're suggesting that the White House clarify any confusion
that may exist regarding various transition memos as they
relate to the WPEA or the anti-gag provision which Senator
Grassley authored. These are issues that are extremely
important to those of us that are committed to making
government work more effectively through the oversight process,
and we will ensure that whistleblower rights to communicate
directly with Congress are not impeded.
And with that, I will recognize the vice chairman of the
subcommittee, the gentleman from Georgia, Mr. Hice.
Mr. Hice. Thank you very much, Mr. Chairman. And I thank
each of you for being here.
Mr. Bachman, I think I heard you said, and I'm not sure
that you really meant this, but you said everyone in government
wants to deal with waste, fraud, and abuse. I'm not so sure
that that's an accurate statement. I actually have come to more
or less believe that the three real branches of our government
are waste, fraud, and abuse. They feel like that sometimes. And
this is a serious problem, but the whistleblowers, as you did
go on to say, are an essential ingredient to dealing with this
problem.
Can you give me a couple of examples of what the
retaliation of these whistleblowers looks like.
Mr. Bachman. Certainly. We have had a number of cases
recently with the VA. Before I go into this, I do want to say
the VA has been an excellent example of good tone at the top. I
think they really have made strides to improve their
protections of whistleblowers.
That being said, we've had a number of whistleblower
retaliation complaints with them. One of them involves an
employee in the Puerto Rico facility who had blown the whistle
about activities that the director of that facility was engaged
in that he believed evidenced a violation of law, rule, or
regulation.
Very soon after that, this employee found himself detailed
to a position in which he had basically no job functions, no
office, and no real career path after that. After he filed a
complaint with OSC, we were able to get involved, get him
temporarily put back into his job while we investigated.
Ultimately, was able to get his job back full-time, get him
damages for what he suffered. And the VA has recently announced
the removal of the director of that facility.
Mr. Hice. Okay. That's a good outcome when all is said and
done, but that's somewhat of a typical retaliation, an outward
change in their job or responsibilities or something along--are
there more subtle retaliations? What would a subtle--and I'll
just open this up, but if you could answer relatively quickly
because I want to drive somewhere with this. What is a more
subtle, less obvious retaliation?
Mr. Bachman. I mean, for example, just getting less
glamorous assignments within the agency, the ones that aren't
going to get you the awards or get you the recognition for the
promotion that's coming up in another year or so, that--you
know, it's hard to really put your finger on exactly what it
is, but you know it's affecting your career. And those can be
extremely damaging and, frankly, extremely difficult to
investigate as well.
Mr. Hice. Okay. Ms. Hempowicz, I would like--you were ready
to go.
Ms. Hempowicz. I would refer again to the retaliatory
investigations that have been mentioned earlier. We called them
the weapons of choice for retaliation against whistleblowers
because it's a lose--it's a win-win situation for the agency.
Either they find something and then they can take whatever
action they want to against the whistleblower and have a reason
for it, or they don't find something and it just looks like
they were doing their due diligence.
Mr. Hice. Okay. So in your testimony, I believe you
suggested some legislative solutions. What would--how do you
draw the balance in providing an agency the ability to
investigate and at the same time protect the whistleblower?
What does the legislation look like to you?
Ms. Hempowicz. I believe that was in Tom's.
Mr. Hice. Okay.
Mr. Devine. Yes, sir. It's really not a different balance
than any other personnel action. We need to terminate employees
who don't perform properly. We don't want to abuse that
responsibility. And it's the same with investigations. We'd
recommend just exempting routine, ministerial, administrative,
nondiscretionary investigations from the X coverage. But the
discretionary ones are very, very commonly used. They're more
chilling than the actual personnel action when they lead to
criminal prosecutions. And even when the investigation is
closed, we have seen a very common phenomenon of serial witch
hunts. There's another one opened 1 or 2 months later, and it
just goes on indefinitely. This has a far greater chilling
effect than conventional personnel action.
Mr. Hice. So the congressional action would be?
Mr. Devine. The congressional action would be similar to
what we have in all the corporate whistleblower laws and in
many State whistleblower laws and the First Amendment, that you
can challenge a retaliatory investigation as a violation of the
Whistleblower Protection Act. We agree that there should be
limitations on it so that it can function the routine
necessary--you can't interfere with the routine necessary
functions of government, but when it's misused--this is a start
of almost every case of retaliation, to shift the spotlight
from the message to the messenger and try to destroy their
credibility, ruin them and make an example. And you can do that
without ever touching the Whistleblower Protection Act, because
they're defenseless until the other shoe drops, a formal
personnel action. And if the other shoe is a prosecution
referral, the act never becomes relevant, the whistleblower is
defenseless.
Mr. Hice. Thank you, Mr. Chairman.
Mr. Meadows. I thank the gentleman.
The chair recognizes the gentlewoman from Michigan, Mrs.
Lawrence, for 5 minutes.
Mrs. Lawrence. Thank you, Mr. Chairman, and to my ranking
member.
Last month, the Republicans included the Holman act as part
of the rules package for the 115th Congress. This rule allows
lawmakers to slash the salary of an individual Federal employee
to $1. Imagine a Federal employee who is considering blowing
the whistle on wrongdoing. Even if that disclosure is
protected, meaning the agency cannot take retaliatory action,
nothing prevents Congress from slashing that employee's salary.
Mr. Devine, and I ask the other ones too, what do you think
the Holman Rule--do you think it would have a chilling effect
on the whistleblower disclosure?
Mr. Devine. It should have a chilling effect because it
creates a deep vulnerability. It allows Members of Congress to
engage in the same actions that would be illegal if taken by an
executive branch employee who actually is familiar with the
whistleblower's performance or work. So it's a serious new
loophole that should be addressed.
Mrs. Lawrence. Mr. Bachman.
Mr. Bachman. I agree. I think that anything like the Holman
Rule or nondisclosure agreements that might have a chilling
effect on employees, that might give somebody pause or more
than pause about coming forward to expose waste, fraud, and
abuse in the government, that's something that, from a
whistleblower's point of view, is not helpful. And I'll leave
it at that. Thank you.
Mrs. Lawrence. Mr. Storch.
Mr. Storch. Yes. I certainly agree. I mean, as we've said
from the outset, and I think everyone in the room has said, we
want to encourage people to come forward with information.
That's the only way we can find out what's really going on and
be able to address it, if appropriate. And if people in our
government agencies don't feel comfortable coming forward,
whether it's because they feel they're going to suffer reprisal
in their jobs or they feel they're going to suffer some other
economic consequences, that's a thing that could deter them
from coming forward and something we want to stop.
I didn't get a chance to mention it before, but I will now.
We get over 12,000 complaints a year on our hotline at DOJ,
which is just one agency. Something like 500 of those in the
last year were within the ambit of what are considered
whistleblowers. Now, not all of those, fortunately, are
reprisal cases, because a lot of those go to the OSC. But
having said that, we do see a lot of reprisal and we see it
increasing.
We oversee the FBI, we have jurisdiction to investigate
there. And with the FBI WPEA, that's only going to increase,
which is a great thing. We support it expanding the ambit of
people that FBI employees can report to. But with that comes a
cost, a cost in terms of resources. But that's something we
think is important to do because we want to encourage people to
come forward. And anything that stops that from happening or
deters that in our view is a bad thing.
Mrs. Lawrence. You know, I served as an EEO investigator
for a Federal agency. And the one thing I will say, and I'm
glad that you all are saying it, the act of discrimination or a
case that's filed, the culture of organization is based on that
reprisal point. And if we do not manage that and make sure that
we're clear that reprisal of a person whistleblowing or a
victim of discrimination will not be tolerated in an agency, it
is extremely chilling and damaging for any organization.
The last thing I want to say--I wanted to hear from you,
Ms. Hempowicz.
Ms. Hempowicz. I agree with my copanelists that we are
deeply concerned that the Holman Rule can be used to retaliate
against whistleblowers. As Tom said, it would be perfectly
legal for it to. It's not against the WPEA. And so,
unfortunately, it creates more work for the members of this
Committee on Oversight over that rule in making sure that it's
not used as retaliation against whistleblowers.
I think employees of Federal agencies are going to look to
you and to the House Whistleblower Protection Caucus to make
sure that you are conducting that oversight and making sure
that it's not being used as a new tool to retaliate against
whistleblowers.
Mrs. Lawrence. I just want to say to the chairman, it's
refreshing to hear that the party, my colleagues are actually
taking on the banner of saying how important our whistleblowers
are to the health and the trust of the American people and that
we are doing our job. And we must continue to protect the
whistleblower.
Thank you, and I yield back.
Mr. Meadows. I thank the gentlewoman for her kind comments.
The chair recognizes himself for a series of questions. So
let me start off by saying for those that are whistleblowers
that are watching here today, this is something that the
ranking member and I, the retaliation, we will not tolerate.
And by saying that, it means that we won't forget. There are
people here in the audience, there's also people here that are
watching that are hoping against hope that, Mr. Bachman, that
you can help them or that they can get their reputation back.
And sometimes it's not even the financial aspect. It is really
the humiliation of being treated the way that they've been
treated by a government that should and can do better.
And so I say that because it's real easy to have hearings
and assume that nothing's going to happen. That's not the way
that I conduct my hearings. In fact, if anything, this is
normally a culmination of fine, fine work by the staff. I'd
like to take all the credit for their great work, and yet it is
their work that brings forth a hearing, but also has a follow-
up hearing. The gentleman from Virginia and I are committed to
making sure that protections are there.
With that being said, Mr. Bachman, I am concerned that a
third of the whistleblowers are retaliated against. Did I hear
you correctly, out of 6,000, some 2,000 are retaliated against?
Mr. Bachman. No, I'm sorry. Let me clarify that. The
overall number of cases that OSC receives across all program
areas is 6,000. In terms of whistleblower retaliation
complaints we receive, it's 2,000.
Mr. Meadows. Okay. Okay. So even if we look at
whistleblower retaliation, one of the things that we've talked
about, we talk about chilling effects, is there any
consequences to those that actually do the retaliation? Because
I'm not seeing a whole bunch, other than, at times, maybe a
slap on the wrist or even that may be more than they get, they
get a letter in their file. Mr. Bachman, are we seeing any of
that?
Mr. Bachman. Well, I think--we couldn't agree more that we
would like to see more disciplinary actions. I think, you know,
as I said, we've made an over 100 percent increase in those
numbers. We obviously want to do more. Our main focus has been
to help the whistleblower. You know, when they come to us,
they've been fired, we need to get them back on their job and
back on their feet. I do think getting them back on their job
does send a message. It's not the same thing as getting that
manager fired, but it does send a message to the other
employees that this person was protected, they were brought----
Mr. Meadows. And I do get that and I understand that, but I
guess here is my concern with that. Having been in the private
sector for a long time, I'm rewarded for those things I get
rewarded by and I do them more. And those things that I don't
get rewarded for or that I get punished for, I don't do them.
And if there is neither the reward for good behavior, I mean--
and so maybe we look at this as if you have zero whistleblower
retaliation events, that you get some kind of recognition.
I'm not sure how we go about this, but I can tell you the
ranking member and I were having a private conversation, the
time is now. And what I would ask of each of you is to give
this committee some of your recommendations on how we can do
that. Because if we've got senior level managers who will
continue to do this, and, Mr. Bachman, with all due respect,
you're doing a great job, but they can thwart you as we do know
with TSA and some of the other events that I'm familiar with,
they thwart you and they try to run out the clock. And when
they are running out the clock, bringing one person back sends
an unbelievable message to all those other whistleblowers.
And the reason I know that is I get calls from agencies all
across the country. And they're calling and they make sure
their numbers are unidentified, and they call with aliases just
because they know that I will actually do something about it.
But the other problem that we have there is, is if they're that
fearful to talk to a Member of Congress, then we've got a
systemic problem that we've got address.
So I would ask, are you all all willing to give
recommendations to this committee in terms of how we can maybe
incentivize or discourage the behavior, and give me two
recommendations on what you think? Mr. Storch, are you willing
to do that?
Mr. Storch. Yes, sir, absolutely. I am happy to participate
in that very important discussion. One thing I would add that
we've been doing for a while, and I was very happy to see in
the IG Empowerment Act, was posting of instances where there's
been reprisal. And that's something--we always look at these
reprisal cases, and we don't have the volume that OSC does, but
say in the FBI area or other areas. We look at them both in
terms of whistleblower, obviously, and the harmed that they
have suffered for coming forward and performing the service of
doing that. But also we look at the person who engaged in the
reprisal and whether or not that we can show that that
constitutes misconduct, and if so, then to our standard
procedures we would refer that.
We had a posting not long ago where we posted a fairly high
level person within the FBI who we found, based on our
investigation, had engaged in reprisal against someone who had
blown the whistle. And we publicly reported on that. And we're
not the adjudicative body, as you know, that goes to another
part of the Department, but still, hopefully, there's a
deterrent effect from that, right? And very happy to see that
in the IG Empowerment Act. And I think others in the IG
community do that, and as more of that happens, hopefully,
people will see that there are consequences for supervisors and
managers who engage in that concept.
Mr. Meadows. So since you do it there at DOJ, would you say
that that's something we need to implement through OPM or some
directive from OPM?
Mr. Storch. Well, my understanding of the IG Empowerment
Act is that now all of the IGs will be reporting when they find
instances of reprisal against----
Mr. Meadows. Yeah, but it kind of bypasses OSC when you--I
mean, indeed, if it's an IG investigation that applies and
it's--I'm very familiar with that Act, but at the same time,
it's critical that we send a message. So if you all would do
that.
Mr. Bachman, are you willing to do that?
Mr. Bachman. Yes, absolutely. And very quickly, I think one
thing to point out that has had a concrete effect is including
within performance evaluations. So every employee gets an
annual performance appraisal. We at OSC have now made that part
of our supervisors and managers performance appraisals that
they will be judged upon having an open atmosphere that would
encourage whistleblowing. That has also been made a part of the
VA's performance appraisals. So we think that could have a big
impact as well.
The second part is tone at the top, as I mentioned
previously, and I just want to commend you and this committee
and Senator Grassley for ``walking the walk.'' And planning to
send this letter, I think, sends exactly the right message to
whistleblowers across the----
Mr. Meadows. It either is gone or about to go out. So by
the time we will gavel out, it'll be there.
Mr. Devine.
Mr. Devine. Sir, I agree with Mr. Bachman's priorities that
the OSC has to focus on saving the careers of people who are
being purged as a top priority. And that's why I think that
structural reform in franchising the ability to seek discipline
as part of the due process dimension of the list of our
protection act is the most effective and direct solution, that
a whistleblower should be able to seek discipline as part of
the relief when prohibited personal practice is proven.
The other alternative is to restore personal liability for
constitutional violations, which historically existed but the
Supreme Court canceled in 1983 due to passage of the statutory
provisions. And Congress could restore that liability and that
also would create deterrence.
Mr. Meadows. Those are good recommendations. The latter one
will be much more difficult to have happen.
So, Ms. Hempowicz.
Ms. Hempowicz. Yeah. I would be happy to give you some more
recommendations after the hearing. But I will just repeat what
I said in my testimony, that I think it's incredibly important
that we make punishment for those found to have retaliated
against whistleblowers mandatory. It was in the VA bill last
year and went through.
And when you have this mandatory punishment for somebody
who retaliates, you've got to make sure that you have due
process in place to make sure that you're not going to be
punishing somebody who doesn't deserve it. But a mandatory
suspension for the first offense sounds fair to me and sends
that picture that retaliation is not acceptable and won't be
rewarded. Because like you said, a lot of times, these people
who are retaliating against whistleblowers receive bonuses, are
promoted, or are moved up and out of the agency.
Mr. Meadows. All right. So one final question and then I'll
recognize the ranking member.
Mr. Bachman, in terms of former Federal employees and the
protections there, I mean, what kind of circumstances would you
be able to help with former Federal employees?
Mr. Bachman. That's an excellent question and identifies
one of the big gaps in our enforcement areas. Right now, if
you're an employee or an applicant for a Federal position, you
are protected from retaliation. However, if you've left the
Federal Government and then somebody retaliates against you
because of what you had disclosed while you're with the
government, the WPEA does not cover that. So right now, we are
not able to----
Mr. Meadows. What about things they disclose after they've
left? So they're a retiree. I've had some come to my office
just afraid to share anything because they're afraid of
potential retaliation with either clearances or retirements or
anything else.
Mr. Bachman. And if that--for example, if they retired and
then blew the whistle and then were considering being a, you
know, reemployed annuitant or something like that, yes, I think
that should be covered. And we--OSC has actually taken that
position recently in an amicus brief that any disclosure means
any disclosure, regardless of whether you're an employee at the
time. If you then seek employment with the Federal Government
and they hold that against you, that's whistleblower
retaliation.
Mr. Meadows. All right. Well, with that, I would look
forward to maybe some clarifying language that we could work in
a legislative manner. And I'll recognize the ranking member.
Mr. Connolly. Just underscoring your point, Mr. Meadows. I
think we would be interested in trying to look at some kind of
set of standards for disciplinary action when somebody is
conclusively found to have retaliated against a whistleblower.
The adjudication is going to be important because I am
aware of cases of the opposite, where somebody claimed to have
been discriminated against, and when you look at the evidence,
it's simply not true. And they either have it in their head or
they have a grievance against somebody and want to tarnish
their good name. And so we have to be careful about that too in
protecting reputations.
The interesting thing to get at, for me, what I hear the
most about is retaliation is more subtle than that. Putting
someone in a broom closet without a phone and without a window,
everyone can kind of catch on to that. But it's the subtle
performance erosion in the evaluation and the lack of promotion
that follows from that because you've got a bad evaluation or
suddenly issues are cropping up. You know, and it's done
cleverly and in an almost sinister way to damage your career
and your good name over time.
I think that is one that I worry a lot about because it's
much harder to get at. It's harder to prove, but in some ways
it's even more insidious. I don't know if anyone wants to
comment on that before we close the hearing.
Mr. Storch. I would agree entirely. You're absolutely
right. And I would just say, based on our experience, when
we've done these investigations in the FBI contacts, with the
contractors, subcontractors, grantees, and the like, the more
subtle the discrimination or the action, the more difficult it
is to ferret out. And that--not that this is a play for
resources, but I will say that it feeds into that problem,
because they are very resource intensive investigations. I know
I don't have to tell OSC that.
I know from our working group OIGs across the community, we
believe in the importance of whistleblowers. They're really key
partners in the work we do. And we don't want to see them
suffer reprisal. So there is not a lack of commitment. There
are issues with resources----
Mr. Connolly. Yeah, but don't get too carried away. I know
of one example, at least in an OIG office----
Mr. Storch. Yes, sir.
Mr. Connolly. --where this occurred and it was the IG doing
it.
Mr. Storch. Right. No, I don't claim anything is absolute,
but I think people--certainly, I can speak for our office, we
get and others in our working group have talked about the
importance of these principles, but also have talked about the
difficulty of ferreting out just that sort of subtle
discrimination. So the reason I bring it up is I really do
think it feeds into this issue that these are really important
issues that we want to be able to tackle and work with you on
tackling and work with you on getting the resources to make
sure we can do it effectively.
Mr. Bachman. And for OSC, we couldn't agree more on the
importance of the subtle forms of retaliation. And we've really
made it a point, in our office, for our complaints examining
unit who are the initial front line to review these complaints,
if they see something like this and they believe there's an
evidence of a violation, that we want to address this as
quickly as possible because, A, it stops the bad action from
happening, it helps the whistleblower. But B, it lets the
agency, it lets the folks know we're looking at the little
stuff too. We're not just going--you know, we're not just
looking at the termination, we're looking at these subtler
forms of retaliation. And also in terms of our outreach
programs where we go to agencies, we train them, we make sure
to include that these smaller personnel actions, that's
retaliation too and you can't do it.
Mr. Devine. So your insight about subtle retaliation is
very well taken. The Whistleblower Protection Act shields
against harassment, such as refusing to give people training
that would allow them to advance in their careers. One of the
common tactics that I come across is in a performance
appraisal, having a comment in the appraisal that, I'm
disturbed that Mr. Smith is not a team player. And that sends a
message to all future employers in all job applications that
are reviewed.
And your question is a cue for the importance of the amicus
briefs by the Office of Special Counsel and the job duties, so
a short portion of the Whistleblower Protection Act. That's the
only portion that requires actual retaliation. And the board
has been drifting into expanding the scope of the job duties
loophole and having high burdens of proof for it. And this
should be interpreted very, very narrowly.
There is no public policy relevance to whether a
whistleblower commits the truth as part of an assignment or a
personal initiative. And the same causal link that can cancel
adverse actions for taking a personal initiative should be
there when you're just doing your job properly.
Ms. Hempowicz. I don't know if I have anything to add.
However, it is definite that's something that we're very
concerned about, and I'm happy to hear that you share that
concern and plan to do more on that going forward.
Mr. Connolly. Thank you. And, Mr. Chairman, thank you so
much.
Mr. Meadows. Well, thank you all for your enlightening
testimony. I can assure you that it will be followed up on. Our
staff here is one that are not only diligent, but they're
tenacious and so--in doing that.
If there's no more business before the committee, the
committee stands adjourned.
[Whereupon, at 3:41 p.m., the committee was adjourned.]
APPENDIX
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