Five Years Later: A Review of the Whistleblower Protection Enhancement Act

2/01/2017

Subcommittee on Government Operations House Oversight and Government Reform Committee

Chairman Meadows and Ranking Member Connolly, thank you for allowing me to submit a Statement for the Record for this hearing. As National President of the National Treasury Employees Union, representing over 150,000 federal employees in 31 different agencies, I know how important whistleblower rights are to an effective and fair workplace. NTEU was part of a coalition that brought this legislation to fruition. This law was a giant step forward in providing real whistleblower protection for federal employees. It closed a number of loopholes created by the Federal Circuit Court including cancelling the requirement for “irrefragable proof” – which required employees to present “undeniable, uncontestable, or incontrovertible” proof before they were eligible for protection. The legislation also created specific legal protection for scientific freedom, providing whistleblower protection to employees who challenge censorship, and made it an abuse of authority to punish disclosures about scientific censorship. In addition, the WPEA allows all-circuit review for appeal of MSPB decisions, removing sole jurisdiction from the Federal Circuit Court which ruled for whistleblowers in only 3 cases out of 229.

Whistleblower protection is vital to good government. Whistleblowers are the very best defense we have against fraud, waste and abuse. But it is only part of the protection system for federal employees. I would caution that, in our zeal to protect whistleblowers, we must not harm the due process system that ensures that every federal employee has a chance to plead his or her case. For instance, the recently passed VA Accountability Act established a process that is unworkable. In a nod to support whistleblowers, the legislation states that an employee can seek corrective action from the OSC, shielding this individual from agency removal or demotion unless the OSC approves of such action. Essentially, the OSC is tasked with the function of pre-approving individuals as whistleblowers. If the OSC becomes the only truly independent review that is available, its workload will increase dramatically, making it increasingly difficult for the OSC to serve legitimate whistleblowers.

Due process is a constitutional right for federal employees and ensures that the American people receive a merit-based civil service rather than a partisan or corrupt spoils system. I know you heard from more than one manager who complained they could not fire an employee because of due process requirements. This is not true. It is true that a supervisor who does the work and uses the various management tools at his or her disposal can fire an individual while still providing due process rights.

There are some parts of the WPEA that require action this year. All Circuits Review is set to expire this year. This change has allowed whistleblowers to pursue alternative venues to the Federal Circuit Court, which has shown extreme hostility to whistleblowers. We ask that you pass legislation to make this provision permanent. Similarly, the provision that every Office of Inspector General have a Whistleblower Ombudsman has resulted in training programs on whistleblowing and a sharing of ideas and solutions. This should also be made permanent.

Finally, any legislation that is developed should solve a problem created by the Federal Circuit Court when it ruled that the MSPB could not engage in substantive review of agency decisions concerning the eligibility of employees to occupy “sensitive” positions in the government. By allowing agencies to take unreviewable adverse actions against those in “sensitive” positions on the basis of eligibility, it leaves that federal workforce with little practical ability to ensure that adverse actions taken against them are legally appropriate. Whistleblowers will be affected as well, since officials who use the determination of ineligibility for a sensitive position as a pretext know the affected employee has no recourse. We would be happy to work with the committee on language to solve this loophole.

The WPEA has made a real difference in the life of brave federal employees who come forward to expose wrongdoing. With a little tinkering, we can even make it better. Thank you.