[Congressional Record Volume 165, Number 62 (Wednesday, April 10, 2019)]
[Senate]
[Pages S2355-S2357]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]
EXECUTIVE CALENDAR
The PRESIDING OFFICER. The clerk will report the nomination.
The legislative clerk read the nomination of Holly A. Brady, of
Indiana, to be United States District Judge for the Northern District
of Indiana.
The PRESIDING OFFICER. The Senator from Iowa.
30th Anniversary of the Whistleblower Protection Act
Mr. GRASSLEY. Mr. President, today marks the 30th anniversary of a
very important law--the Whistleblower Protection Act. It is very
important because people in government ought to listen to
whistleblowers. They are very patriotic people.
The law is a critical foundation for the whistleblower protections we
have in place today. The Whistleblower Protection Act has helped to
usher in a
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new era at our Federal Agencies. Government employees who are aware of
waste, fraud, and abuse can now step forward and do the right thing,
and they can do it with the law on their side.
As one of the original cosponsors of the Whistleblower Protection
Act, I remember what things were like before that law was passed. I
will give some examples, and these examples aren't pretty.
Back in the 1980s, I used to say that the whistleblower's only hope
was like the desperate Charge of the Light Brigade. There were rarely
any survivors. At the time, the executive branch saw whistleblowers not
as patriots but as threats. Agencies wouldn't even verbally acknowledge
the importance of whistleblowers in making government accountable to
the people. Our whistleblower laws had no teeth, so there was nothing
to stop it from happening and nothing to provide any relief at all to
the patriotic whistleblowers who were then experiencing retaliation.
To give an idea of just how bad things were, let's start in 1984. A
study conducted by the Merit Systems Protection Board found that nearly
70 percent of government employees who knew of fraud and impropriety
wouldn't even report it and wouldn't say what they knew about it. They
believed that no corrections would result if they did, and their No. 1
reason for nonreporting was fear of reprisal.
The sitting special counsel from 1982 to 1986 said that if he were an
attorney advising whistleblowers, he would tell them this: ``Don't put
your head up, because it will get blown off.'' At the time, the Office
of Special Counsel was part of a bigger organization that we refer to
as the Merit Systems Protection Board. Instead of protecting
whistleblowers, it protected the merit system--not individual
employees, and, let me emphasize, certainly not whistleblowers. The
special counsel's office would pursue only those cases it thought it
could win. If a whistleblower came to it with a retaliation case that
was difficult to prove, the whistleblower was simply out of luck.
So the Whistleblower Protection Act, 30 years old, addressed all of
these problems and then some. That law made the Office of Special
Counsel into a separate body, and it firmly established that the Office
of Special Counsel was there solely to protect employees, especially
whistleblowers.
In doing so, it gave whistleblowers a new and important ally. The law
also established that the Office of Special Counsel should act, not
just when it had an open and shut case but whenever it was likely that
a prohibited personnel practice had occurred against a whistleblower.
It made the Office of Special Counsel a chief defender of employees
subject to prohibited personnel practices. The law addressed other
problems as well.
I remember back in the 1980s, the Office of Special Counsel had
developed a disturbing practice of providing information on
whistleblowers to Federal Agencies conducting personnel inquiries; as
an example, people like Elaine Mittleman. Elaine worked at the Treasury
Department. She went to the Office of Special Counsel alleging reprisal
against her whistleblowing. When her case was rejected, she learned
that the Office of Special Counsel had leaked negative information
about her to the Office of Personnel Management to do her damage. The
old Office of Special Counsel effectively ensured that Elaine was
blacklisted from any other Federal employment.
Thankfully, the Whistleblower Protection Act stopped that practice
and stopped it cold. The act prohibited the Office of Special Counsel
from responding to Agency personnel inquiries about Federal employees
except in the most limited of circumstances. It also expanded the
definition of a protected disclosure and made it easier for employees
to show reprisal. Of course, the 1989 law wasn't perfect, and in the
time since it was passed, Congress expanded it and strengthened the
Whistleblower Protection Act in very important ways.
In 2012, I was proud to serve as one of the original cosponsors of
the Whistleblower Protection Enhancement Act. That legislation plugged
several holes in the original law and made it clear that the executive
branch can't use nondisclosure agreements to prevent whistleblowers
from making protected disclosures. If Federal employees are required to
sign a nondisclosure agreement, specific language has to be included in
that agreement making it clear that whistleblowers can still report
waste, fraud, and abuse. Wouldn't the taxpayers expect a Federal
employee who knows about waste, fraud, and abuse to report that as a
responsibility to their office and then not to be reprised against
because they did?
It is safe to say that, taken together, the Whistleblower Protection
Act and the 2012 amendments have had a transformative effect on our
Federal Agencies. Things are still hard for our whistleblowers in too
many instances, and we still have a long way to go, but we have come a
very long way since I first started working on these issues. By the
numbers, more whistleblowers now report waste, fraud, and abuse, and
they have the ability to fight retaliation. I hate to say this, but too
often whistleblowers are retaliated against, even with respect or even
in consideration of the Whistleblower Protection Act.
In fiscal year 2017, to show progress and to show that the bill has
made a difference, the Office of Special Counsel obtained 323 favorable
actions, including stays, corrective actions, disciplinary actions, and
systemic changes to Agency practices. That is an Agency record and a
16-percent increase over the previous year. Of those, 241 involved
instances of whistleblower retaliation, and 44 involved stays with
Agencies to protect employees from premature or improper personnel
actions against them.
One of those retaliation cases involved a Federal worker who reported
an Agency official to her management and to the Office of Inspector
General for suspected theft. In exchange for disclosure, the official
who was reported demoted the worker to the lowest possible position she
could.
That is just one example to show you how patriotic people in the
Federal employment who are whistleblowers--who just want government to
do what the law requires or spend the money accordingly--get shafted as
a result of just doing what you ought to do as a Federal employee:
report waste, fraud, and abuse and stealing.
This person had some help because, as I said, she was demoted to the
lowest possible position that she could; that is, until the worker
filed a complaint and the Office of Special Counsel investigated.
Following the investigation of the Office of Special Counsel, the
complainant was not only reinstated but given backpay and compensatory
damages. Faced with punitive actions, including temporary suspension
and a reassignment, the Agency official who had engaged in the
retaliation decided to resign. That is just one example of how the
Whistleblower Protection Act has made a difference. I could, of course,
list many others.
The Whistleblower Protection Act and its amendments have also had an
important effect on congressional oversight. Whistleblowers are the
eyes and ears inside the executive branch. In fact, when people come to
my office explaining why they ought to be confirmed by the Senate,
there are a couple of things I always tell them: No. 1, either you run
your Department or it runs you; No. 2, you ought to listen to the
whistleblower. Whether you are a little Agency with a couple of
thousand employees or whether you are the Veterans' Administration with
350,000-some employees, you can't know what is going on down underneath
you. When people tell you something is wrong, you ought to listen. Like
I said, I have found it very helpful with congressional oversight.
My own oversight efforts would not be possible without the courageous
action taken by whistleblowers. For example, whistleblowers contacted
my office during the Obama administration about criminals who should be
ineligible for DACA but, due to an oversight by the Department, were
still receiving benefits like work authorization. Scrutiny of the
program led to more thorough recurrent vetting of the U.S. Citizenship
and Immigration Services.
I worked with a number of whistleblowers at the Department of
Veterans Affairs who had the courage--and it takes courage--to stand up
and do what is right.
More recently, my office worked with Brandon Coleman after he was put
on administrative leave for more than a
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year and kept from running an addiction treatment program for veterans.
It happens that Brandon's only ``mistake'' was to point out poor
treatment of suicidal veterans. Eventually, after a concerted effort by
my office, Senator Johnson's office, and the Office of Special Counsel,
Brandon was provided a new position within the VA's Office of
Accountability and Whistleblower Protection. That is how it should be
done.
Without the protections established by the Whistleblower Protection
Act, Brandon's story might have turned out very differently. Without
these protections, who knows how many other instances of waste, fraud,
and abuse that we have been able to find and repair thanks to
whistleblowers would be continuing now unabated?
Now, make no mistake, we still have a ways to go to ensure that
whistleblowers are valued as they should be valued and supported as
they should be supported. I still hear from far too many whistleblowers
who have done the right thing only to experience retaliation from their
Agencies as a result.
We in Congress, including this Senator, shouldn't be hearing those
things at all. That is why continued oversight by Congress is so very
important. Whistleblowers depend on us--you and me. All of our
colleagues in this body ought to be listening to them. We ought to be
supporting them and honoring them by following up on their concerns and
taking action to fix serious problems when they bring them to our
attention.
I thank the whistleblowers who worked with my office over the years.
They are truly patriots willing to put their job on the line, willing
to put their profession on the line. We have come a long way since the
Whistleblower Protection Act first passed in 1989. We owe it to them to
build on the progress we made and to continue to improve upon our
whistleblower laws for years to come.
You can rest assured that I will be part of those ongoing efforts on
this important anniversary of the Whistleblower Protection Act. I
encourage my colleagues to reflect on the important role whistleblowers
play in our government and to renew their commitment to the same.
I yield the floor.
I suggest the absence of a quorum.
The PRESIDING OFFICER. The clerk will call the roll.
The legislative clerk proceeded to call the roll.
Mr. SHELBY. Mr. President, I ask unanimous consent that the order for
the quorum call be rescinded.
The PRESIDING OFFICER. Without objection, it is so ordered.