Julia Davis is an award winning screenwriter and published photographer. She is Vice President of Fleur De Lis Film Studios, and the LA Homeland Security Examiner for Examiner.com. In her column today, she decries the flaws in S. 372, the Senate's version of the Whistleblower Protection Enhancement Act (WPEA). She objects to its creation of a summary judgment procedure at the Merit System Protection Board (MSPB). "Unless the bill is amended, Administrative Judges with the MSPB will now be able to dismiss whistleblower claims without a hearing, based solely on affidavits filed by the agencies." She notes that whistleblowers will have to survive this expensive process to benefit from the right to request a jury trial in district court. With MSPB's track record of ruling for employees 1.7% of the time, S. 372 offers little hope for whistleblowers. Davis says:
The same MSPB judges who rule overwhelmingly in favor of the agencies will be empowered to be the gatekeeper for federal court. Much as an elusive oasis in the desert, the illusion of access to federal court is just that – an illusion.
Davis also faults S. 372 for failing to provide substantive reform of the MSPB and the Office of Special Counsel. Her production company has released a letter to Congressional leaders urging correction of S. 372. She invites readers to take action to correct S. 372's flaws.
The Fleur De Lis Film Studios letter explains another flaw in S. 372, the creation of a new exclusion from protected activity:
Another major area of concern is that for the first time ever, federal employees will not be protected for making protected disclosures pertaining to violations of law. The exclusion provided for “minor violations of law” provides for a dangerous precept that federal managers would be allowed to decide what laws they can violate. This potentially dangerous provision overturns one of rare Federal Court decisions that ordered corrective action for a whistleblower. It also contradicts every major study on fraud detection, including the most recent determination by the Association of Certified Fraud Examiners that the best way to detect fraud is to protect whistleblowers who report even suspicious activity because that often leads to the discovery of major fraud.
In short, what was meant to be an enhancement of the Whistleblower Protection Act contains setbacks and shortcomings that would severely undercut the already almost nonexistent whistleblower protections. The same poison pills contained within S. 372 would further empower the offending agencies, while insulating them from even a remote possibility of whistleblower recourse.
Unless the bill is corrected, whistleblowers rights will be catapulted backwards into the dark ages.
It's nice to have a screenwriter make it so clear.