Today's Senate Whistleblower Hearing Confirmed the Need for Strong Protections
Once again, the hearing record clearly and overwhelming proves that whistleblower reform is long overdue. There were no credible arguments presented that court access and jury trial should not be provided to all federal employees, including national security employees.
Pictured here are Angela Canterbury of Public Citizen, Prof. Robert Vaughn, William Bransford of the Senior Executive Association, Sen. Daniel Akaka (D-HI), Danielle Brian of the Project on Government Oversight (POGO) and Tom Devine of the Government Accountability Project (GAP). White House Ethics Counsel Norm Eisen is between Mr. Bransford and Sen. Akaka.
Senator Akaka (D-HI) opened the hearing by stating that “federal employee whistleblower play a crucial role in alerting Congress and the public to government wrongdoing and mismanagement, protecting our civil rights and civil liberties, helping to keep us safe, and rooting out waste, fraud, and abuse.” Senator Akaka explained that the purpose of the hearing was to determine how to best protect national security whistleblowers and whether or not federal employees should be provided with jury trials.
Deputy Assistant Attorney General for the Department of Justice, Rajesh De, basically repeated the same testimony that he presented at the House hearing on May 14th. The Administration remains supportive of a variety of the improvements to the Whistleblower Protection Act contained in the House and Senate versions of the bill. However, they have stopped short of fulfilling President Obama’s campaign promises. The Obama Administration has not taken a position on jury trials for Title 5 federal employees and has refused to support jury trials for national security employees, despite promising to do so in the National Whistleblowers Center’s candidate survey.
The main difference from last month’s House hearing was the hard hitting questions by Senator Claire McCaskill (D-MO). Senator McCaskill stated that she was “perplexed and confused” why anyone would not want “every whistleblower on the face of the planet” to have access to a jury trial, especially federal employees. The Senator asked Mr. De to give her “any rational basis” for treating federal employees like second-class citizens. Mr. De’s response that it was too soon to tell the ramifications from the recently passed bills containing jury trials and that the Administration needed more time to investigate the issue was less than convincing. Senator McCaskill responded that whistleblower cases are hard to make, expensive to pursue, and it is difficult to find attorneys willing to take whistleblower cases. She continued that whistleblowers are doing the “heavy lifting” when it comes to reporting fraud and abuse and it is about time that we start “respecting and being deferential to whistleblowers.”
Senator Roland Burris (D-IL) also asked some important questions on the new “Intelligence Community Whistleblower Protection Board” proposed as an alternative to the Merit Systems Protection Board for national security employees. National security employees, who are responsible for preventing the next 9/11, must be able to report intelligence agency failures without fear of retaliation, and there was no coherent rationale provided at the hearing for excluding employees at the intelligence agencies and FBI from court access provisions contained in the House bill.
The testimony of William L. Bransford, General Counsel for the Senior Executive Association, was equally unconvincing arguing against providing for jury trials in whistleblower cases. Mr. Bransford argued that managers will be afraid to discipline “problem employees” if whistleblowers are provided access to jury trials. My question is: What is wrong with that? Why shouldn’t managers be afraid to retaliate against employees? If an employee really is a ‘bad apple’ their supervisor should be able to document why the employee should be reprimanded and proceed with proper disciplinary procedures. In my opinion, this general argument that supervisors will be chilled has little basis in reality. Managers already face jury trials for discriminating against employees on other grounds, however they are still able to effectively discipline employees and maintain a productive workforce.
Robert Vaughn a professor at American University’s Washington College of Law, Danielle Brian the Executive Director of the Project On Government Oversight, and Tom Devine the Legal Director of the Government Accountability Project presented compelling testimony on why all federal employees, including national security employees, should have full access to court and jury trials. Professor Vaughn submitted a mini treatise on the role of juries as his written testimony and provided support through detailed analysis dispelling stereotypes that are commonly used to argue against juries. Prof. Vaughn reminded the committee that academic studies show that juries decide complex cases without difficulty and that they are not biased in favor of the “little guy” in cases brought against large organizations.
I hope that after hearing today’s testimony the Senate takes action to finally protect all federal employee whistleblowers. You can do your part by sending a letter to Congress and calling Senator Akaka (202-224-6361) and Senator Susan Collins (R-ME) (202-224-2523) Chairman and Ranking Member of the Senate Committee on Homeland Security and Governmental Affairs.
If you would like more information on the Senate hearing please visit the new Federal Employee Whistleblower Protection page on the NWC website.
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I want to share a few more details from the hearing of the Senate Subcommittee on Oversight of Government Management, the Federal Workforce, and the District of Columbia. Sen. Daniel Akaka (D-HI) is chair. The hearing room was packed.
Sen. Akaka had an opening statement that got right to the point. The Senate bill to improve federal whistleblower rights, S. 372, does not cover national security agencies, and does not provide for jury trials. HR 1507 does. He agrees that all whistleblowers should feel protected so they will come forward with information about violations, waste, fraud and abuse. Specifically, he does not want federal employees running to the media when they could resolve issues in house.
The subcommittee invited two panels of witnesses. The first panel had one witness, Rajesh De, Deputy Assistant Attorney General for the Office of Legal Policy, speaking for the administration. The second panel had Mr. William Bransford of the Senior Executive Association, Danielle Brian of the Project on Government Oversight, Tom Devine of the Government Accountability Project, and Prof. Robert Vaughn of American University. No actual whistleblowers were invited as witnesses.
Mr. De had a number of positive things to say about whistleblowers. "This administration strongly supports protecting the rights of whistleblowers." "Empowering whistleblowers is a keystone of the President's firm commitment to ensuring accountability in government." "A government employee who speaks out about waste, fraud or abuse performs a public service. Such acts of courage and patriotism, which can sometimes save lives and often save taxpayer dollars, should be encouraged rather than stifled." "Blowing the whistle often means taking great risks." "[W]e must make sure that federal employees have safe and effective ways to blow the whistle on waste, fraud and abuse. That means ... ensuring that no one suffers retaliation for making such a report."
Mr. De specifically stated that the administration would accept all-circuit review of MSPB decisions. The administration also supports compensatory damages. "That is a matter of both simple fairness and of practicality." Mr. De supported protection of normal duty speech. "Changing the law will encourage employees to tell their supervisors about problems in the first instance, which is usually the easiest way to resolve them." He criticized the decision in Huffman v. OPM, 263 F.3d 1341 (Fed.Cir. 2001). He expressed concern for the role of federal supervisors who must discipline employees for inadequate performance.
As to national security workers, the administration is proposing a new Intelligence Community Whistleblower Protection Board to handle all whistleblower complaints from national security agencies. For these workers, the administration opposes trial by juries. However, such an executive branch agency could include restoration of security clearances as a remedy. "The administration believes that no federal agency should be able to hide its own wrongdoing." They consider the ICWPB to be an avenue outside the employee's own agency. The administration, however, accepts that whistleblowers should be permitted to tell members of Congress about the existence of the whistleblower disclosure, and invite the member to obtain that disclosure from the ICWPB. This is an innovation of Mike German of the ACLU, although he did not get credit for it at the hearing. Mr. De did say that he hopes Congress will complete its work on this bill this year.
Mr. De did not address the issue of jury trials for federal employees outside of the national security agencies. So, Sen. Akaka asked him directly for the administration position. (Good for him for asking.) Mr. De said directly that the administration had not taken a position on this yet. He acknowledged a number of factors in favor of jury trials. He said that jury trials are an essential part of our judiciary and our democratic tradition. He wants us to find a balance that will afford whistleblowers an "effective tool" without creating a disincentive for agency managers to take discipline against employees, some of whom are responsible for waste, fraud and abuse. He said the administration is concerned about the combination of jury trials with the modified burden of proof in which managers would have to prove their same-decision defenses by "clear and convincing evidence." He is concerned that some cases will be too complex for juries, but he recognizes that other complex areas of law have also become amenable to jury trials. In summary, he could accept jury trials if (1) national security cases are excluded, (2) the burden of proof stays at the preponderance level for affirmative defenses, and (3) compensatory damages are capped as they are in Title VII.
Sen. Claire McCaskill (D-MO) attended a portion of the hearing. She succinctly stated that she did not understand why anyone would not want whistleblowers to have jury trials. She noted that the Certified Fraud Examiners found that 46% of fraud recoveries come from employees, whistleblowers. She said that whistleblower cases are hard enough to win already, and it is hard for whistleblowers to get attorneys. In further questioning, Mr. De agreed that MSPB was not well equipped to handle large amounts of information in a single case. He said that the proposed ICWPB would exercise de novo review of agency records in whistleblower cases. As to contractors, he is concerned about (1) the burden on Inspectors General (IGs), (2) the limitations period, it just needs to be worked out, (3) the effect on state and local governments that receive federal money, "it's not insurmountable, but it needs to be considered."
Sen. Akaka said that national security whistleblowers make some of the most important disclosures, and the current systems at the FBI and other agencies don't work. Mr. De answered, "we couldn't agree more that waste, fraud and abuse needs to be exposed, maybe this is more important in national security agencies."
In the second panel, only one witness spoke against jury trials. That was William Bransford of the Senior Executives Association (SEA). Mr. Bransford wants federal managers to be indemnified if they did their job right. Still, he recognizes that the WPEA is a "good government initiative."
Danielle Brian of POGO spoke about the need to cover national security employees. She said that current measures at CIA and FBI are "pathetic" and not working. She said that our government already trusts these federal employees with our nation's secrets, so why don't we trust them with these secrets when they are working to protect the federal mission. She gave several examples of how federal manager misled Congress on matters of national security, and how whistleblowers made sure Congress got the true facts. When those whistleblowers lose their jobs, Congress loses another source of truthful information. Rep. Reyes sent a letter to CIA employees that made clear that the House Intelligence Committee wants real discussion, not just notification of issues.
Sen. Akaka asked Mr. Bransford about Mr. Devine's comments regarding Bransford’s concern over federal managers and their duty to properly supervise employees. Mr. Bransford said that many federal managers are technicians who are not trained in personnel management. They would be deterred by the "sensationalism" of a jury trial. Still he recognizes that whistleblower cases are just not brought that often any more, and something needs to be done. Sen. Akaka followed up and asked if there was a way to allow jury trials and mitigate his concerns. He said that he supports Mr. De's proposal to use the Title VII cap on damages. He rejects the proposal to change the burdens of proof. Here I sensed that Mr. Bransford was channeling his role as an attorney for disciplined federal managers. He said that the current standards of proof are problematic and hard enough! He agreed that the expense of federal court and the use of summary judgment would keep the numbers of jury trials low.
Sen. Akaka asked Mr. Devine why jury trials are so important if they would be used so rarely. Mr. Devine answered (1) it was an issue of credibility for the President who promised Title VII procedures for federal whistleblowers, (2) federal employees were the only employees without this right, (3) the public has a right to know about violations in government, and if they are sensationalized, then the public will well know what is going on, (4) for people who make the investment in a case to get to a jury, they will have a fighting chance to win, and (5) if jury trials are available, whistleblowers will have a better chance to settle their cases. He noted that after DoE and NRC employees got jury trials in 1995, the number of whistleblower cases actually dropped. Danielle Brian chimed in that allowing jury trials would also improve the quality of the administrative process that would become a competitor.
Ms. Brian answered a question about the administration's proposed ICWPB. She said that if a new agency is created, she hopes that board members would need Senate confirmation. She wants to make sure that Congress will have access to the disclosures at the initiation of the process. Mr. Devine said that the process should be limited to cases in which the case involves national security information. Many cases in national security agencies would involve no sensitive information, and those cases should have the same procedures everyone else gets. I observe that all the current mechanisms rely on presidential appointments to decide federal employee cases, and they have all failed. MSPB, the Federal Circuit and the Special Counsel represent multiple layers of legal protection that have all proved empty for whistleblowers. The Federal Circuit even requires Senate confirmation. This shows why whistleblowers need the gold standard of justice: the jury trial.
Mr. Vaughn answered a question about the viability of jury trials for national security workers. He pointed to Mike German's testimony (for the ACLU) to the House committee last month. It lists numerous means for conducting such trials. Ms. Brian noted that a GAO study found that Title VII cases are processed without any risk to national security. She also said (in response to another question) that whistleblowers are unlikely to be aware of which members of Congress are authorized to handle certain intelligence matters, and that the law needs to protect disclosures to one's own local representative since that is who a whistleblower will most likely call upon. Sen. Akaka said he was concerned about how federal employees would be notified of their rights under a new law.
In the closing remarks, Mr. Bransford emphasized the need for reform this year. He wants to find some reconciliation of the bills so reform can happen this year. Ms. Brian spoke about how refreshing it is to have an administration that does not threaten to veto a whistleblower bill. Mr. Vaughn said that whistleblowers do so much for our society that they are worth the cost. Sen. Akaka closed by saying that finally this year we will enact whistleblower protections.
The National Whistleblower Center action alert for the WPEA is at:
http://capwiz.com/whistleblowers/issues/alert/?alertid=13501721
The NWC information page is at:
http://www.whistleblowers.org/index.php?option=com_content&task=view&id=840&Itemid=96
The key Senate decision makers will include Sens. Akaka (HI), Collins (ME), Leiberman (CT) and Voinovich (OH). Sens. McCaskill (MO) also deserves thanks for her role. I hope everyone in these states will express their views to their senators, and pass the word onto labor unions and other groups that could join us in this effort. We are close to securing jury trials, finally, for federal employee whistleblowers.