Tuesday, December 21, 2010

The Whistleblower Protection Enhancement Act - S 372

The Whistleblower Protection Enhancement Act (WPEA) H.R. 985 had passed the House of Representatives with a strong bi-partisan majority was fully supported by the whistleblower community and contained true due process rights for all federal employees. But the new S 372 or the Whistleblower Protection Enhancement Act (WPEA) in the Senate which was approved by Unanimous Consent had significant differences from the house bill. Some in the whistleblower community such as the leadership of the National Whistleblower Center believe that there were in reality rollbacks of the current legal rights. Others such as the Make it Safe Coalition and the Government Accountability Project have supported the Senate bill despite its flaws.

Those who wish to “Tell Truth To Power” wish to do so within a safe responsible channel to work within the system not outside it. True national security experts realize that it is preferable to provide a proper protected channel for information about problems, mistakes, or even corruption to get from the field to leaders in authority. Enhanced whistleblower protections would specifically allow national security and intelligence workers to expose wrongdoing through their chain of command, keeping classified information within the intelligence community. Thus creating a viable protected system where none currently exists will help strengthen our national security rather than weakening it. We as a nation do need strong protections for those who step forward courageously to report problems so that we can respond by meeting those challenges and making the entire system stronger.

The following have been criticisms of S 372/WPEA as recently passed by the Senate:

1) Giving the power of summary judgment to the Merit Systems Protection Board is new power will may result in a substantial increase in litigation costs in whistleblower cases, a decrease in the ability to obtain settlements and the creation of a "record" that will be very difficult to reverse on appeal. Many cases could be dismissed by MSPB under this new power.

2) It is feared that the Senate version of the bill (S 372) may have decreased the ability of employees to blow the whistle on “mismanagement” by requiring the burden of proof to be at the level of “gross mismanagement.” (see Drake v. Agency for International Development, 543 F.3d 1377 (Fed. Cir. 2008).)

3) Section § 101(a) (and related provisions) of S. 372.1 re-defines the scope of a protected disclosures permitted under the WPEA, and permits managers and political appointees to fire career civil servants who disclose violations of law. This is contrary to Executive Order 12371. The key to a successful fraud detection program are laws and rules that protect and encourage employees to report "suspicious activities," regardless of the motives of those who engage in such activities and regardless of whether, after an investigation, those activities constituted only "minor" or "inadvertent" violations of law or regulation. The Government's interest in curbing waste, fraud, abuse and corruption is better served by over reporting, and the authorities to whom such disclosures are to be made can best determine the merits of the allegations.

Thus there has been dissent within the whistleblower community on whether the current House/Senate proposals were in fact rollbacks from current legal rights. But there is clear consensus that we do need strong whistleblower protections which will adequately protect federal whistleblowers, national security whistleblowers and a wider spectrum of those in the private sector. All in the whistleblower community believe that the house bill H.R. 985 was better written to provide the necessary whistleblower protections. Thus as S 372 moves forward to the House leadership it is an open question whether the House should approve it without any changes or instead hold it back and consider making the bill stronger and with greater protections for whistleblowers. The question that many whistleblowers are asking themselves is whether those changes ever truly materialize, and will legislation be passed that provides true protections for our whistleblowers. Let us hope that our national leaders listen to those who have questioned certain aspects of the current bill S 372 and make the necessary changes to improve it.

1 comment:

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