Legislation aims to increase whistleblower protections

From the Summer 2003 issue of The News Media & The Law, page 8.

By Gil Shochat

A bill introduced by Sen. Daniel Akaka (D-Hawaii) on June 26 would give whistleblowers greater protection. The Federal Employee Protection of Disclosures Act comes after a rash of high-profile whistleblowers have faced retaliation from employers because of their disclosures.

The original Whistleblower Protection Act was passed in 1990 to protect from retribution civil servants who speak out against their employers. Since then, courts have stripped away many of the act’s original protections. The legislation proposed in June aims to restore those protections.

“The public’s and Congress’ right to know must be protected,” Danielle Brian, executive director of the Project on Government Oversight, said in a June 26 press release. “This legislation gives the Whistleblower Protection Act new life, and rolls back the court’s recent inroads into free speech rights.”

The original law was designed for whistleblowers who had a “reasonable

belief” that there was fraud, waste or mismanagement going on in their departments. These federal employees could report the malfeasance to the press, Congress, co-workers or employers and be protected from retaliation.

A spate of decisions by the U.S. Court of Appeals for the Federal Circuit, have, according to Sen. Carl Levin (D-Mich.), one of the bill’s co-sponsors, “corrupted the intent of Congress, with the result that additional clarifying language is sorely needed.”

He said that the case of Lachance v. White represents “perhaps the most notable example of the Federal Circuit’s misinterpretation of the whistleblower law.”

Decided in May 1999, Lachance made it almost impossible for any whistleblower who reported government wrongdoing to the press or Congress to be protected from retaliation under the whistleblower law.

After John White, a U.S. Air Force employee, complained that a contract signed by the Air Force demonstrated gross mismanagement, he was reassigned, even though an independent review panel supported his conclusions. The Federal Circuit decided that employees who go public must have indisputable evidence — “undeniable and incontestible” proof that the government is acting improperly. The court also held that the government is almost always presumed to be acting properly and in good faith and employees have the burden to prove that it is not.

Quentin Bass, a U.S. Forest Service scientist who blew the whistle to the Atlanta Journal-Constitution’s Charles Seabrook in June, alleged that the government was mismanaging national forests by allowing logging companies to cut down too many trees for the benefit of loggers. Bass, like any civil servant who blows the whistle, would have to have “undeniable and incontestible” proof that those national forests were being mismanaged. Otherwise he could face serious retaliation.

Unless a whistleblower has this overwhelming proof, he or she is “proceeding at their own risk,” said Tom Devine, legal director for the Government Accountability Project.

The new whistleblower bill would lower the threshold of proof. All that civil servants would have to show to be

protected from retaliation would be “substantial evidence” that fraud, waste or mismanagement was taking place. The only way to be protected from retaliation under the current law is if an employer agrees that the charges made by a whistleblower are accurate, which is unlikely.

The bill also would give the Office of Special Counsel, the agency responsible for defending whistleblowers in court, the right to appeal cases from the Merit Systems Protection Board, the quasi-judicial agency that hears whistleblower cases, to the Federal Circuit. Currently, the OSC must ask the Justice Department, whose lawyers often serve as opposing counsel in employment rights litigation, whether they can appeal a decision from the MSPB to the Federal Circuit. The bill also would give whistleblowers with security clearances greater protections against having their clearances revoked.

Usefulness to journalists may be limited

While some advocates for whistleblower rights have applauded Congress’ attempts to strengthen whistleblower laws, doubt remains as to the usefulness of this law to reporters. Even if civil servants are legally protected from retaliation when they have “substantial evidence” of wrongdoing, in the real world their careers and lives will no doubt be altered as a consequence of their revelations.

Sharyl Attkisson, a CBS News correspondent who makes extensive use of federal whistleblowers, says that more whistleblowers would talk to journalists if they knew that their employers would be punished if they tried to retaliate against them.

“This law should be aimed at the bosses and people up the chain of command, who should know that their jobs were at risk if they retaliated against the whistleblower,” Attkisson said. The current legislation does not substantially address this issue.

Attkisson says she believes that the best protection for whistleblowers under the current law remains strong political backing from senators and congressmen. As part of her stories, she has interviewed senators on-camera about the difficulties whistleblowers face.

For a June 27 story, Attkisson interviewed Sen. Charles Grassley (D-Iowa) about Edward McSweegan’s predicament. McSweegan was a National Institutes of Health scientist who blew the whistle against mismanagement at the agency only to have all his duties revoked while he drew a $100,000 annual salary. Grassley sits on the Senate Finance Committee, which oversees funding for the NIH. He also is a strong proponent of whistleblower rights.

Grassley wrote a letter in late June to the Department of Health and Human Services demanding action. By July 9, after increased congressional scrutiny and media attention, HHS Secretary Tommy Thompson demanded that “immediate” action be taken to resolve the matter. By July 10, a Washington Post report indicated that McSweegan’s workload had increased substantially.

Even with strong political backing, Jeff Ruch, the executive director of Public Employees for Environmental Responsibility, a group that works with civil servants who blow the whistle, says that, in the real world, civil servants should be prepared to end their careers over their allegations.

Even if a whistleblower were to be protected under the updated law, “going to the media would still be a last resort,” Ruch said.

Instead, Ruch and his group urge whistleblowers to remain anonymous, so that the issues they want to expose, rather than they themselves, become the story.

“You want to force agencies to deal with the message and not the messenger,” he said.

The Government Accountability Project’s Devine says that the proposed legislation will allow reporters to tell whistleblowers that if they are harassed for going to the press, then this harassment, or any kind of retaliation is illegal.

“But,” Devine warns, “if you’re relying on your professional rights to protect your legal rights, you’re in big trouble. [Whistleblower] litigation is a crap-shoot no matter how strong your evidence is.” u