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Government Executive magazine has released an article on a Senate Committee's actions on two bills.  The article reports on the Federal Hiring Process Improvement Act and the Whistleblower Protection Enhancement Act (WPEA) (which has been a hot topic on this blog this week).

The Federal Hiring Process Improvement Act eliminates essay requirements in favor of resumes and cover letters.  It also requires federal agencies to simplify job postings and keep applicants informed about the status of their applications.

As to the WPEA, the article notes that the Senate Committee approved jury trials for federal whistleblowers for the first time, but notes the concerns of whistleblower advocates.  Stephen M. Kohn, executive director of the National Whistleblowers Center (NWC), expressed disappointment over the bill: "The Senate did the right thing in putting forward a provision, which permits federal employees to remove their cases to federal court. However, we hope the procedural and substantive limitations on these fundamental due process rights will be removed as the bill proceeds," he told Government Executive. NWC has established web pages for information and taking action on the WPEA.

 

 

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This morning the Senate Committee on Homeland Security and Governmental Affairs marked up the Whistleblower Protection Enhancement Act of 2009 (S.372).   You can find my summary and analysis of some of the key provisions of the newly revised Senate bill by clicking here.  The Senate bill still lacks key provisions that are included in the House version of the bill (H.R. 1507).  The National Whistleblowers Center continues to urge the Senate to provide court access and jury trials to all federal employees, including national security employees.

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July 28, 2009

President Barack Obama
The White House
1600 Pennsylvania Avenue NW
Washington, DC 20500


Dear President Obama:

On May 8, 2007, your presidential campaign promised America’s whistleblowers in writing that you stood behind their need for legal protection and fully supported federal court access and jury trials for all federal employees. The House of Representatives enacted these protections when it overwhelmingly passed H.R. 985 in a veto-proof, bipartisan manner. In another bipartisan effort, Representatives Van Hollen (D-MD), Waxman (D-CA), Towns (D-NY), Braley (D-IA), and Platts (R-PA) have reintroduced this bill as H.R.1507.

Now we need your help. While the House version of the bill is more inclusive, the Senate version (S.372) lacks many key protections. The Senate bill currently lacks coverage for the hundreds of thousands of federal employees who participate in the global war on terror and oversee a budget well over $150 billion. Please stand by your promise and ensure that all federal employees receive comprehensive whistleblower protections.

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Yesterday, U.S. District Judge Emmet G. Sullivan ordered that the Army Corps of Engineers must answer for its decision to withhold top-secret security clearance from whistleblower Bunnatine (Bunny) H. Greenhouse.

Bunny Greenhouse was the Corps’ top procurement officer when she objected to the Bush administration’s no-bid contracts for Halliburton subsidiary KBR. When Ms. Greenhouse was scheduled to testify before a Congressional Committee during the Bush Administration, the Army Corps’ then acting General Counsel personally advised Greenhouse it would not be in her bests interests to do so. She was swiftly removed as the Army Corps’ Procurement Executive when she ignored that warning.   The Corps also refused to renew her top-secret security clearance (TSSC) on grounds that her new job did not require any clearance.

Ms. Greenhouse filed a lawsuit to get her old job back.  In a ruling yesterday, Judge Sullivan overruled the government’s motion to dismiss Ms. Greenhouse’s claim for her TSSC.

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The Sydney Morning Herald in Australia reports on a government study finding that national security whistleblowers need more protection.  ‘‘It is better for organisations to receive too much information about wrongdoing than too little, or too late,’’ it says. ‘‘An essential ingredient in any whistleblowing program is the commitment from each organisation to encourage reporting, act on the reports where they have been verified and to protect reporters from any adverse consequences.’’

The article says that Australia's government is planning to introduce whistleblower protection laws. The new government funded study faults the proposed protections for whistleblowers who make disclosures to journalists as being too weak.

 

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The Senate Homeland Security and Government Affairs Committee has scheduled its markup of the Whistleblower Protection Enhancement Act (S. 372) for tomorrow, 10:00 a.m. Now is the time to contact your Senators and President Obama and ask them to support adding jury trials for all federal employees, including national security employees. The House bill (HR 1507) is superior in both respects. Sen. McCaskill plans to introduce an amendment to S. 372 to improve it on these issues.  The National Whistleblowers Center has launched a Capwiz action page to support these improvements to S. 372, and a twitter page to follow developments at the markup. NWC General Counsel David K. Colapinto will provide his expert analysis and commentary on how the Senate markups affect the strength of the whistleblower protections in this legislation. You can also catch the live video feed from the Committee when it meets tomorrow. Please pass this message on to your friends and family.  We need the Senate and President Obama to know that the American public wants all federal employees to be protected when they report waste, fraud, and abuse of taxpayer dollars.

 

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Voice of America (VOA) has released a YouTube video featuring interviews with U.S. Army Corps of Engineers whistleblower Bunny Greenhouse, her lawyer Michael D. Kohn, and Lindsey Williams, Advocacy Director of the National Whistleblowers Center.  Produced by the VOA's Nico Colombant, the video is six minutes, 36 seconds, long and is called Whistleblowers Unite for Justice.  It presents excerpts of Bunny Greenhouse's testimony to Congress, and exclusive interviews with her, Kohn and Williams.  It describes how she blew the whistle on the no-bid contracts for a Halliburton subsidiary during the Iraq War, and then got demoted.  Michael Kohn explains how her case shows the need for the Whistleblower Protection Enhancement Act (WPEA), a bill that would give federal whistleblowers access to jury trials.  Lindsey Williams describes the NWC's petition drive to support the WPEA.

 

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Next week is the last week on the job for OSHA whistleblower Bob Whitmore.  After working for 37 years without any discipline, rising to senior management, Bob Whitmore will lose his job with the Occupational Safety and Health Administration (OSHA) for "intimidating and disruptive behavior."  Whitmore had blown the whistle on OSHA's refusal to penalize companies that underreport their workplace injuries. Now Joe Davidson of the Washington Post and Ames Alexander of the Charlotte Observer report that OSHA has decided to discharge Whitmore.

The incident is all the more troubling in light of OSHA's role as an investigator of whistleblower complaints under 17 federal environmental, safety and integrity laws.  If OSHA would stoop to firing one of its own whistleblowers, how can it fairly assess the whistleblower claims of other employers? Indeed, the General Accounting Office report in February found that OSHA fails in that mission, too.

 

 

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Robert MacLean is a former federal air marshal. During the Summer of 2003, he exposed a plan by the Transportation Security Administriation (TSA) to stop all overnight travel by the air marshals to save money on the budget.  This shutdown of air marshal travel came at the same time that the Department of Homeland Security was reporting an active al-Qaeda suicide hijack plan.  MacLean's courageous disclosure prompted Congressional and public outrage.  In response, TSA reversed its decision, continued air marshal travel, and fired MacLean for making the disclosure.  MacLean also raised concerns about how TSA's dress code for air marshals made them easy for terrorists to identify.

 

Yesterday, a House committee heard testimony from the Director of the Federal Air Marshal Service (FAMS), Robert Bray.  Bray told Congressman Bill Pascrell (New Jersey) that it was a problem that his predecessors ignored whistleblower complaints of safety and security problems.  The old management forced the whistleblowers to go to the media. Rep. Pascrell insisted that the TSA should give MacLean and others their jobs back: "pure and simple."

Joe Davidson reports in today's Washington Post that Pascrell showed concern about MacLean's case. MacLean is "still twisting in the wind," Pascrell told Davidson. "I think it's very unfair."

MacLean has posted seven (7) minutes of excerpts of the hearing on YouTube.

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Today the Fourth Circuit U.S. Court of Appeals partially reversed the dismissal of a whistleblower's lawsuit under the False Claims Act.  In U.S. ex rel. Elms v. Accenture, LLP, No. 07-1361 (July 22, 2009), the court let stand the dismissal of the qui tam fraud claim, but reversed the dismissal of Elm's retaliation claim. The key difference was in the pleading standards.

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Nerve gas monitors were inoperative from 2003 to 2005 at the U.S. Army's Blue Grass Army Depot, near Richmond, Kentucky. This week, Public Employees for Environmental Responsibility (PEER) released a 2006 Army Inspector General's report that made this finding.  The failure of the monitors might never have come to light if it wasn't for Donald Van Winkle, a chemical weapons monitoring operator at Blue Grass.  After he tried and failed to get management to correct the problem, he was forced to file a complaint with the Inspector General.

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New York City is inserting notices into 240,000 paychecks this week to encourage employees to report frauds against the City.  The notices inform City employees about the False Claims Act (FCA) which provides whistleblowers with a percentage of the government's recovery against fraudulent claimants. New York City, Chicago and Washington (DC) are the only cities with "Little FCAs" that take advantage of a federal amendment that gives state and local governments a share of federal fraud recoveries in their jurisdictions.  By enacting comparable local legislation, the local government can share in the millions of dollars recovered every year by the federal government. The National Whistleblower Center has an interactive map showing that 26 states have Little FCAs and 24 do not.

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On Friday, July 17th the House Intelligence Committee opened an investigation into whether the Bush administration broke the law by not informing Congress about several classified programs.  This once again demonstrates the need for Congress to pass strong whistleblower protections, including court access, for national security employees.   The recent national security scandals, including the failure to report programs to Congress and harsh interrogation programs, could have been avoided if employees felt free to speak up.  The C.I.A. never would have been able to hide programs from Congress if the employees were able to report their concerns to Congress without risking their careers.  Giving full whistleblower protections to intelligence employees is the best way to protect to protect national security.  In fact, national security will continue to be threatened until Congress passes H.R. 1507.

"House Looks Into Secrets Withheld From Congress" New York Times, July 18, 2009 (PDF Copy)

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The federal Equal Employment Opportunity Commission (EEOC) has issued a new guidance on what is legal and advisable for severance agreements. As more and more Americans face layoffs, this new guidance is most timely.

Of particular interest for whistleblowers, the EEOC guidance makes clear that, "no agreement between you and your employer can limit your right to testify, assist, or participate in an investigation, hearing, or proceeding conducted by the EEOC under the ADEA, Title VII, the ADA, or the EPA. Any provision in a waiver that attempts to waive these rights is invalid and unenforceable." The guidance cites the EEOC Enforcement Guidance on Non-Waivable Employee Rights Under EEOC Enforced Statutes (April 1997), and 29 C.F.R. § 1625.22(i)(2). The guidance also states that no agreement can restrict an employee's right to file a charge of discrimination.

 

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The Maine Supreme Court has issued a memorandum opinion holding the Saddleback Ski Resort liable for its role in the discharge of an electrician who blew the whistle. Electrician Robert Duggan, Jr., blew the whistle on Saddleback's use of its maintenance crew to install a high-voltage electric line. Duggan reported that Saddleback was using unlicensed electricians for the work, and that they made the installation unsafe by failing to make proper connections and grounds.

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Wisconsin is one of 14 states that does not have any "shield law" to protect journalists and their confidential sources.  A new bill in the state's legislature could change that.  Last Saturday, the Wisconsin State Journal published an editorial endorsing the bill.

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Several news sources have reported on a proposal by the Obama Administration to create a monetary reward for whistleblowers who help the Securities and Exchange Commission (SEC). The Money Times reports that under current law, the SEC has the authority to reward individuals who provide tip-offs on insider-trading violations. However, this new bill will allow the SEC to set up a fund using the fines and penalties collected from enforcement actions and would reward whistleblowers from this fund. The bill is called the Investor Protection Act of 2009.
 

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 The Idaho Supreme Court gave an aviation safety whistleblower good news on July 7. In Van v. Portneuf Medical Center, the Court remanded Mark Van’s case back to an Idaho trial court to consider his claim of wrongful termination. The Idaho Supreme Court held that the district court judge erred in granting summary judgment to a hospital on the whistleblower part of the lawsuit.

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President Barack Obama called for "protecting whistle-blowers to advance transparency and accountability" during his speech in Ghana. He did so in the context of promising an increase in "assistance for responsible individuals and institutions, with a focus on supporting good governance."

"We have a responsibility to support those who act responsibly and to isolate those who don't, and that is exactly what America will do," Obama added.  From this corner, we can remind the President that  he can support those responsible whistleblowers right here at home by endorsing H.R. 1507, the Whistleblower Protection Enhancement Act (WPEA), and give all federal employees, including those working in national security, access to jury trials to prove their claims of unlawful retaliation.

For those interested in learning about whistleblower protection laws in other countries, the National Whistleblowers Center has an interactive world map with links to the laws of each nation.

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The Long Island Business News published an article yesterday about the Fraud Enforcement and Recovery Act of 2009 which improved the whistleblower protections of the False Claims Act (FCA).  Called, "Government Whistle Blowing Pays Off," the article invites those who want to make millions to, "buy a whistle."

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On June 25, 2009, Representatives John Lewis (D-GA) and James Sensenbrenner (R-WI) reintroduced the Civil Rights Tax Relief Act of 2009 (CRTRA).  It is now numbered as H.R. 3035.  On the same day, Senators Jeff Bingaman (D-NM) and Susan Collins (R-ME) reintroduced the CRTRA in the Senate, where it is now known as S. 1360.  The Senate and House bills are identical. They differ from last Congress's CRTRA only in the effective date. The bill would provide that compensatory damages awarded in whistleblower and other cases not involving physical injuries would be excluded from the definition of "income" for income tax purposes.  The bill would also permit whistleblowers and civil rights plaintiffs to pay taxes based on the tax rates of the years when the wages would have been earned but for the unlawful discrimination.  The National Employment Lawyers Association (NELA) provides more information about these bills. NELA also has an Action Page from which you can ask your legislators to co-sponsor CRTRA.

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The Washington Post reports today that Service Corporation International (SCI), operator of the National Funeral Home, fired whistleblower Robert Ranghelli last week.  After an April 5 Washington Post story detailed improper storage of corpses destined for Arlington National Cemetery, Ranghelli came forward to corroborate what he felt were disgraceful conditions at the home.

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