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Week Ending March 16, 2006

H.R.985 To amend title 5, United States Code, to clarify which disclosures of information are protected from prohibited personnel practices; to require a statement in nondisclosure policies, forms, and agreements to the effect that such policies, forms, and agreements are consistent with certain disclosure protections, and for other purposes.

Whistleblowers are those who ‘blow the whistle’ on wrong doing and are particularly important to the federal process because so much of what is done is not directly in the public eye. The bill report explains that despite their selfless effort they tend to get persecuted for their effort rather than rewarded. The same is true of whistleblowers who inform on government contractors. This bill would change that. An estimated 400 to 500 whistleblower cases are raised each year.

Current law is explained to apply to any (whistleblower) disclosure, “whether made as part of the duties of an employee, former employee, or applicant” that concerns consequences of policy or individual misconduct, oral or written, made to an audience inside or outside that agency (of the government). There is no time restriction nor are there any restrictions on the form, motive, context or prior disclosure on the matter.

Disclosure is formal and informal communications where the employee reasonably believes that the disclosure evidences any violation of law, rule or regulation or gross mismanagement, waste, abuse of authority or specific danger to public health or safety.

The change in definition of disclosure that the bill codifies is in contrast to a recent Federal circuit court decision holding that only a formal communications may qualify as a disclosure.

The bill then codifies the belief test for all whistleblower disclosures. The belief test asks if a disinterested observer with knowledge of the essential facts known to or readily ascertainable by the employee, former employee or applicant could reasonably conclude that the actions of the government show such violations, mismanagement, waste, abuse of danger. The accused official, the subject of the whistleblower disclosure, would be scrutinized as to whether or not he/she acted in good faith. The accuser or court could rebut the good faith argument based on providing ‘substantial evidence’ rather than ‘irrefragable proof’ as is the requirement under current law.

A government agency is prohibited from implementing or enforcing a policy that requires nondisclosure policy, form or agreement by one section of the bill followed by another section that prohibits and agency from implementing or enforcing such a policy, form or agreement without notifying the employee or his/her rights. An investigation into the whistleblower beyond ministerial or nondiscretionary fact-finding necessary for the agency to perform its mission.

If the president intends to remove an agency or unit from the whistleblower protection program he must do so prior to any personnel action being taken against a whistleblower at that agency. The bill extends whistleblower protection to employees whose job functions make them eligible for the protections but who work in an agency that is not protected. An example would be an employee from a protected agency on loan to an agency that is not protected.

The Merit System Protection Board that reigns over such matters in the Federal Government can discipline an employee (agency official) if it can demonstrate that an adverse personnel action would not have occurred (against the whistleblower) but for the whistleblower’s protected activity (complaint). An employee seeking corrective action from the MSPB with respect to a prohibited personnel practice may bring an action in federal district court for a jury trial if the MSPB does not take final action on the claims within 180 days. The corrective action can also be sought within 90 days of final action by MSPB.

MSPB may award compensatory damages including interest and expert witness fees. Damages have ranged from $20,000 to $200,000. The final order from the MSPB against an accused agency official can range from removal, reduction in grade, debarment from Federal employment for a period not to exceed five years, suspension or reprimand. A civil penalty may not exceed $1,000 or a combination of other disciplinary actions

The whistleblower may take an issue to district court seek review of a final order or decision of the MSPB in the Federal Circuit or the circuit of appeals for the circuit where the alleged prohibited personnel practice occurred, the circuit in which the employment records are maintained and administered, or the circuit in which the whistleblower resides. The whistleblower may not file a case in district court if already appealing an order or decision of the MSPB in the court of appeals.

“In addition to rights he or she may already have, an employee of a covered agency may not be discharged or discriminated against, including by denying, suspending, or revoking a security clearance or otherwise restricting access to classified or sensitive information, as a reprisal for disclosing covered information to an authorized Member of Congress, authorized executive official, or the IG of the covered agency. A disclosure means any disclosure, whether that disclosure is made as part of an employee's, former employee's, or applicant's duties, concerns consequences of policy or individual misconduct, is oral or written, or is made to any audience inside or outside an agency, without restriction to time, form, motive, context, or prior disclosure,” the bill says.

So to can a complainant who thinks he/she is suffering reprisal for having blown the whistle may complain to the agency Inspector General for an investigation and report within 120 days. Then the agency head will decide if reprisal took place and either deny relief of implement corrective action including a return of a security clearance if necessary. Expenses and consequential damages and compensatory damages including attorney fees, interest, reasonable expert fees and costs can be reimbursed along with back pay, benefits, medical costs and travel expenses.

The accused agency is limited in its use of the state secrets privilege defense. If that privilege prohibits the employee from establishing an element in support of the claim the court will resolve the disputed issue of fact of law in favor of the employee.

The processes are pretty much the same if the whistleblower is blowing the whistle on a contractor. It will be the agency head that determines if the complaint is valid or the result of reprisal and either deny relief or take corrective action. If the agency head does not act in 180 days the employee may take action in the district court for compensation and relief.

Transportation screeners are federal employees but have been ruled to not have whistleblower rights. The bill gives them the same rights as other employees.

 Now to be protected are those whose complaints come under the heading of abuse of authority including political interference with science. An example would be to take actions to compromise the validity or accuracy of federally funded research or analysis and the dissemination of false or misleading scientific, medical or technical information. The Office of Special Counsel of the MSPB has ruled that disclosure of political interference with science is not protected. Under the bill the protection is restored.

The Government Accountability Office is directed to study revocations of security clearances due to whistle blowing since 1996.

The rules would apply within 30 days of enactment of this bill.

Sponsor:  Rep. Henry Waxman (D-CA-30^th)

Vote: On motion to recommit with instructions Agreed to by recorded vote: 426 - 0 (Roll no. 152). On passage Passed by the Yeas and Nays: 331 - 94 (Roll no. 153).

Cost to the taxpayers: “CBO estimates that implementing H.R. 985 would cost $5 million a year and about $25 million over the 2008-2012 period.” In 2007, the MSPB received an appropriation of $36 million, and the OSC received $15 million. CBO expects that the bill's changes in whistleblower laws would increase the workload of the MSPB and OSC. CBO cannot estimate the cost of compensatory damage awards in such cases because the amount awarded would depend on the particular circumstances of each case and the frequency of cases involving such damages. Recent settlement amounts under the Whistleblower Protection Act have ranged from $20,000 to $200,000.”

Earmark Certification:   “H.R. 1255 does not contain any congressional earmarks, limited tax benefits, or limited tariff benefits as defined in clause 9(d), 9(e), or 9(f) of rule XXI.”

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MORE INFORMATION

AMENDMENTS

Subsection (f) contains definitions.

The term `covered information' means information, including classified or sensitive information, that an employee, former employee, or applicant, reasonably believes provides evidence of any violation of any law, rule, or regulation, or gross mismanagement, or waste of funds, abuse of authority, or substantial and specific danger to public health or safety.

The term `covered agencies' means the Federal Bureau of Investigation, the Central Intelligence Agency, the Defense Intelligence Agency, the National Geospatial-Intelligence Agency, National Security Agency, the National Reconnaissance Office and any other agency or element thereof involved in foreign intelligence or counterintelligence activities as determined by the President.

The term `authorized Member of Congress' means a member of the House Permanent Select Committee on Intelligence, the Senate Select Committee on Intelligence, the House Committee on Oversight and Government Reform, the Senate Committee on Homeland Security and Governmental Affairs and the committees of the House or Senate that have oversight over the program about which the information is disclosed. Members of Congress often receive communications through their staff. A communication to a staff member of an authorized Member should be considered a communication with the authorized Member if the staff has the appropriate clearances and the purpose of the communication is to convey information to the authorized Member.

The term `authorized office of an executive agency' is to be defined by the Office of Personnel Management. However, this definition will include the immediate supervisor of the employee or former employee and each successive supervisor (immediately above such immediate supervisor) in the chain of authority as well as the head, general counsel, and ombudsman of the agency.

The term `authorized official of the Department of Justice' means any employee of the Department of Justice whose duties include the investigation, enforcement, or prosecution of any law or regulation.

AMENDMENTS

Amendment offered by Mr. Stupak.

An amendment numbered 1 printed in House Report 110-48 to clarifies that instances of political interference with science are to be considered `abuses of authority' and their disclosure therefore protected. The Stupak amendment adds an example of such interference, namely preventing a federal scientist or grantee from publishing or presenting their research.

On agreeing to the Stupak amendment Agreed to by the Yeas and Nays: 252 - 173 (Roll no. 151).  On agreeing to the Stupak amendment Agreed to by recorded vote: 250 - 178 (Roll no. 149).

Amendment offered by Mr. Platts.

An amendment numbered 2 printed in House Report 110-48 to require that the Merit Systems Protection Board rely on a consistent standard for `clear and convincing evidence' as the burden of proof that must be met to sustain an agency's affirmative defense (that it would have taken the same personnel action independent of an employee's protected conduct). Under the amendment, `clear and convincing evidence' would be defined as `evidence indicating that the matter to be proved is highly probable or reasonably certain.

Amendment offered by Mr. Platts.

An amendment numbered 3 printed in House Report 110-48 to clarify that an otherwise-protected disclosure cannot be disqualified because of the forum in which it is communicated. In addition, the amendment would extend equal burdens of proof and individual rights of action to those serving as witnesses in Inspector General or Special Counsel investigations, as well as to those who allege retaliation for refusing to violate the law

Passed House by voice vote March 14, 2007

Amendment offered by Mr. Sali.

An amendment numbered 4 printed in House Report 110-48 to remove the provision that would make influencing federally funded scientific research a prohibited personnel practice.

On agreeing to the Sali amendment Failed by recorded vote: 159 - 271 (Roll no. 150).

Amendment offered by Mr. Tierney.

An amendment numbered 5 printed in House Report 110-48 to change the secti on on national security whistleblowers to limit which members of Congress can receive information about especially sensitive subjects, such as sources and methods (to members of the intelligence committees or other relevant committees) and special access programs (to defense committees), and for other programs (to committees with oversight over the program in question).

Passed House by voice vote March 14, 2007

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