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Project on Government Oversight

POGO and 168 Diverse Groups Support Swift Action to Restore Strong, Comprehensive Whistleblower Rights

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September 18, 2012 | By: Angela Canterbury

168 Diverse Groups Support Swift
Action to Restore Strong, Comprehensive Whistleblower Rights

An Open Letter to Members of Congress

The undersigned organizations and businesses write to urge completion of the landmark, decades-long legislative effort to restore credible whistleblower rights for federal employees.

We support legislation providing genuine protection for public employees who serve the American public by risking their careers to protect taxpayers. Whistleblower protection is a foundation for any change the public can trust, whether the issue relates to economic recovery, civil rights and civil liberties, prescription drug safety, environmental protection, infrastructure spending, national health insurance, or foreign policy.

In May 2012, the Senate unanimously passed the Whistleblower Protection Enhancement Act (WPEA) for the fourth time since 2006. It is well past time to finish the job.

Unfortunately, every month that passes means the public is deprived the benefit of disclosures from federal government whistleblowers about fraud, waste or abuses that could remain ongoing. On average, more than 15 whistleblowers a month lose initial decisions from administrative hearings at the Merit Systems Protection Board (MSPB), and less than one prevails.

The Whistleblower Protection Act was last restored in 1994, and has since fallen victim to judicial activism. The MSPB found that federal whistleblowers were nine times more likely to be fired in 2010 compared to 1992. This culture of vulnerability maximizes government secrecy, which in turn breeds corruption.

Under current law, federal employees are not eligible for whistleblower protections if they:

  • are not the first person who discloses given misconduct
  • make a disclosure to a co-worker;
  • make a disclosure to a supervisor;
  • disclose the consequences of a policy decision;
  • blow the whistle while carrying out job duties.

The inadequate protections afforded by current law remains a would-be whistleblower's best reason to turn a blind eye to government waste, fraud, abuse, as well as threats to public health and safety.

We all want the same thing: that the Whistleblower Protection Enhancement Act become law this year. However, we urge you to send a final bill to the President’s desk that includes the best of both H.R. 3289 and S. 743—not a watered-down version. In the interest of serving that purpose, we write to clarify the most essential elements to any legislation that we can credibly support. These elements, listed below, are crucial to ensure that federal whistleblowers who protect taxpayer dollars and the public’s trust are given adequate access to court, and provide meaningful protections for employees with access to classified information and those working in the intelligence community. Those landmark reforms have been the subject of extremely thoughtful deliberation and consensus for many months.

Absent any one of the elements listed below, we feel that we will be left with a bill that fails to adequately advance whistleblower and taxpayer protections.

* Appellate review: The Federal Circuit cannot retain its monopoly on appellate review of the Whistleblower Protection Act. This court has a long history of frustrating the congressional mandate, evidenced by a consistent track record of ruling against whistleblowers for decisions on the merits. Since 1994, when Congress last reaffirmed and strengthened those rights, the court has rejected 226 claims and sustained only 3 (as of June 2012).

* Access to district court: Government whistleblowers deserve a right to a jury trial, similar to what Congress has already granted to private-sector whistleblowers ten times since 2002. Further, whistleblowers should have the same burdens of proof afforded by the Whistleblower Protection Act of 1989. Reducing agency employers’ burden of proof would be unprecedented and would roll back a cornerstone of the Act that Congress has reaffirmed in every whistleblower law for corporate employees since 1989.

* Administrative due process: The summary judgment provision granting new powers for the MSPB to dismiss cases before a hearing is widely perceived as permission to deprive whistleblowers of the opportunity for any due process administrative day in court. At a minimum, summary judgment would force unemployed whistleblowers to spend thousands of dollars for depositions before they even know if a hearing will occur. That is too high a price for the legislation. This poison pill should be removed.

* Security clearance due process reform: Revocation of security clearance is the harassment of choice against national security whistleblowers who challenge security breakdowns, fraud, waste, or abuse. Since losing security clearance can frequently lead to permanent blacklisting, the denial of due process has much further consequences than simply depriving whistleblowers of fair play.  As a consequence, national security whistleblowers are unlikely to come forward unless they are willing to end their careers.  This has deprived our country of the most effective source of information about national security breakdowns, as well as evidence of waste, fraud and abuse.

We appreciate your bipartisan consensus support for significant reforms, including closure of judicially created loopholes; restoration of a functional, “reasonable belief” standard, codification of the anti-gag statute, extension of whistleblower rights to the intelligence community through administration regulations, establishment of due process standards to prevent retaliation through security clearances, and expansion of contractor whistleblower rights in HR 3289.

It is essential that the law clarify that the WPEA provisions add to, rather than substitute for, current rights.  A strong federal whistleblower statute is needed to close existing loopholes, and provide comparable rights and remedies to the dozen gold standard whistleblower rights that Congress has passed for private sector employees since 2000.

We know you share our commitment to more transparency and accountability in government. Passing a strong, bipartisan whistleblower reform law would do much to restore the public’s faith in Congress, ensure efficient and accountable government, and save taxpayer dollars.

Major studies confirm that whistleblowers have been and will continue to be our best defense against waste, fraud and abuse. Inexcusably, they have been waiting over 12 years for rights that give them a fair chance to defend themselves when they defend the public by exposing government misconduct. Enough is enough.

Sincerely,

Robert A. Cole
Staff Attorney
Advocates for Basic Legal Equality, Inc.,

Tiffiniy Cheng
Campaign Coordinator
A New Way Forward

Ruth Caplan
Campaign Co-Chair
Alliance for Democracy

Susan Gordon
Director
Alliance for Nuclear Accountability

Linda Lipsen
Chief Executive Officer
American Association for Justice

Emily Feltren
Director of Government Relations
American Association of Law Libraries

Patricia Callahan
President/Founder
American Association of Small Property Owners

Rudy Fichtenbaum
President
American Association of University Professors

Christopher Finan
President
American Booksellers Foundation for Free Expression

Laura W. Murphy
Director, Washington Legislative Office
American Civil Liberties Union

John Gage
National President
American Federation of Government Employees

Jessica McGilvray
Assistant Director
American Library Association

Stephen A. Sanders
Director
Appalachian Citizens' Law Center, Inc.

David Banisar
Senior Legal Counsel
Article 19 - Defensing Freedom of Expression and Information

Prudence Adler
Associate Executive Director
Association of Research Libraries

Heather Cantino
Representative
Athens County Fracking Action Network

Samuel Sage
President
Atlantic States Legal Foundation, Inc.

Jay Feldman
Executive Director
Beyond Pesticides

Shahid Buttar
Executive Director
Bill of Rights Defense Committee

Linda Langess, Ph.D.
Co-Chair
Boundary County Concerned Citizens

Jane Williams
Executive Director
California Communities Against Toxics

Terry Francke
General Counsel/Founder
Californians Aware

Nelson Carrasquillo
General Coordinator
CATA - El Comite de Apoyo a los Trabajadores Agricolas/The Farmworkers Support Committee

William Snape
Senior Counsel
Center for Biological Diversity

Bradley Jansen
Director
Center for Financial Privacy and Human Rights

Colin O’Neil
Regulatory Policy Analyst
Center for Food Safety

Lisa Graves
Executive Director
Center for Media and Democracy

Michael Jacobson
Executive Director
Center for Science in the Public Interest

Deb Katz
Executive Director
Citizens Awareness Network (CAN)

Barbara Warren
Executive Director
Citizens Environmental Coalition

James Turner
Chairman of the Board
Citizens for Health

Anne Weismann
Chief Counsel
Citizens for Responsibility and Ethics in Washington (CREW)

Laura Olah
Executive Director
Citizens for Safe Water Around Badger (CSWAB)

Daniel E. Manville
Director
Civil Rights Clinic - Michigan State University Law College

Susannah Goodman
Director of Voting and Election Reform
Common Cause

Gary S. Vander Boegh
Chief Executive Office / President
Commonwealth Environmental Services, LLC.

David Deal
Chief Executive Officer
Community IT Innovators

Greg Smith
Co-Founder
Community Research

Neil Cohen
Publisher
Computer Law Reporter, Inc.

Joni Arends
Executive Director
Concerned Citizens for Nuclear Safety

Lokesh Vuyyuru, MD
Founder
Concerned Citizens of Petersburg/Concerned Citizens of America (CONCA)

Sofia Martinez
President
Concerned Citizens of Wagon Mound & Mora County

Dave Werntz
Science and Conservation Director
Conservation Northwest

Ruth Susswein
Deputy Director, National Priorities
Consumer Action

Chris Waldrop
Director, The Food Policy Institute
Consumer Federation of America

Bob Shavelson
Director
Cook Inlet Keeper

Pratap Chatterjee
Executive Director
CorpWatch

Donald B. Clark
Cumberland Countians for Peace and Justice

Barbra Kavanaugh
Executive Director
DC Employment Justice Center

Sue Udry
Director
Defending Dissent Foundation

David Cohen
Executive Director
Department for Professional Employees, AFL-CIO

Ben Smilowitz
Director
Disaster Accountability Project

Stephen Brittle
President
Don’t Waste Arizona

Zena Crenshaw
Co-Administrator
Drum Majors for Truth

Mike Ewall
Founder/Director
Energy Justice Network

Chuck Broscious
President of the Board
Environmental Defense Institute

Antoinette Stein
Deputy Director
EPP-LCA.org

Gabe Bruno
Executive Director
FAA Whistleblowers Alliance

Tirso Moreno
General Coordinator
Farmworker Association of Florida

Janet Kopenhaver
FEW Washington Representative
Federally Employed Women (FEW)

David B. Nolan
Legal Director
Federal Ethics Center

Steve Aftergood
Government Secrecy Expert
Federation of American Scientists

Marilyn Fitterman
Vice President
Feminists for Free Expression

Wenonah Hauter
Executive Director
Food and Water Watch

Joy Towles Ezell
President
Florida League of Conservation Voters

Susie Caplowe
Coordinator
Florida League of Conservation Voters Education Fund

Patricia T. Birnie
Chair
GE Stockholders’ Alliance

Don Kraus
Chief Executive Director
GlobalSolutions.org

Tom Devine
Legal Director
Government Accountability Project

Alan Muller
Executive Director
Green Delaware

Carl Romanelli
Chair
Green Party of Pennsylvania

Kit Wood
Owner/Founder
Green Plate Catering

Kirk Davies
Research Director
Greenpeace

Larry Pratt
Executive Director
Gun Owners of America

Rodd M. Santomauro
Executive Director
HALT (Help Abolish Legal Tyranny)

Tom Carpenter
Executive Director
Hanford College

Angela Smith
Coordinator
HEAL-ONLINE.ORG

Representative Gerry Pollet
Executive Director
Heart of America Northwest

Aaron Krowne
President, CEO
IEHI, Inc.

Scott Armstrong
Executive Director
Information Trust

J.H. Snider. Ph.D.
President
iSolon.org

John Metz
Executive Director/Board Chairman
JustHealth

Tom FitzGerald
Director
Kentucky Resources Council, Inc

Joseph B. Uehlein
Board President, Founding President and Executive Director
Labor Network for Sustainability

Selton Motley
Founder, President
Less Government

Michael Ostrolenk
Director
Liberty Coalition

Greg Mello
Executive Director
Los Alamos Study Group

Richard Moore
Coordinator
Los Jardines Institute (The Gardens Institute)

Mike Smith
Founder
Market Air Quality Campaign

Dr. Janet Parker, DVM
Director
Medical Whistleblower

Lewis Patrie
Representative
Move to Amend of Buncombe County

Salem Al-Marayati
Executive Director
Muslim Public Affairs Council

Nancy Hone, Director
Jan Greenfield, Webmaster
NAB (Neighbors Against the Burner) in Minnesota

Larry Fisher
Founder
National Accountant Whistleblower Coalition

Gail Dunham
Executive Director
National Air Disaster Alliance/Foundation

Joan E. Bertin, Esq.
Executive Director
National Coalition Against Censorship

Eileen Dannemann
Director
National Coalition of Organized Women (NCOW)

Russell Hemenway
President
National Committee for an Effective Congress

Andrew Jackson
National Forum on Judicial Accountability

Kenneth F. Bunting
Executive Director
National Freedom of Information Coalition

Rodney Logal
Co-Founder/Executive Board Member
National Judicial Conduct and Disability Law Project, Inc.

Terry O’Neill
President
National Organization for Women

Peter Sepp
Executive Vice President
National Taxpayers Union

Colleen Kelley
National President
National Treasury Employees Union

Stephen M. Kohn
Executive Director
National Whistleblowers Center

Amy Allina
Program and Policy Director
National Women’s Health Network

Lewis Maltby
President
National Workrights Institute

James E. Warren
Executive Director
NC WARN

Donald B. Clark
Network for Environmental and Economic Responsibility - United Church of Christ

Rick Engler
Director
New Jersey Work Environment Council

Douglas Meiklejohn
Executive Director
New Mexico Environmental Law Center

Miriam German
No Nukes Northwest

David Krieger
President
Nuclear Age Peace Foundation

David A. Kraft
Director
Nuclear Energy Information Service (NEIS)

Jay Coghlan
Executive Director
Nuclear Watch New Mexico

Tim Wheeler
Co-Administrator
OAK (Organizations Associating for the Kind of Change America Really Needs)

Katherine McFate
President
OMB Watch

Rob Kall
Publisher
Opednews.com

Patrice McDermott
Director
OpenTheGovernment.org

Paul Loney
President
Oregon Wildlife Federation

Yanna Lambrinidou, PhD
President
Parents for Nontoxic Alternatives

Paul Martin
Organizing, Political and PAC Director
Peace Action and Peace Action Education Fund

Jenny Lisak
Co-Director
Pennsylvania Alliance for Clean Water and Air

Margaret Reeves
Pesticide Action Network North America

George Stokes, Jr.
National Program Chairman
POPULAR (Power Over Poverty Under Laws of America Restored)

Evan Hendricks
Editor
Privacy Times

Matt Prindiville
Associate Director
Product Policy Institute

Tim Carpenter
National Director
Progressive Democrats of America

Angela Canterbury
Director of Public Policy
Project On Government Oversight

Francesco Portelos
Founder
ProtectPortlos.org

Keith Wrightson
Worker Safety and Health Advocate
Public Citizen

Jeff Ruch
Executive Director
Public Employees for Environmental Responsibility (PEER)

Dr. Diana Post, Executive Director
Munro Meyersburg, Secretary
Rachel Carson Council, Inc.

Molly Johnson
Area Coordinator
San Luis Obispo County Grandmothers for Peace

Debbie Sease
National Campaign Director
Sierra Club

Linda Petersen
Freedom of Information Committee Chair
Society of Professional Journalists

Edward T. Hart
President 2012-13
Southeastern Chapter of the American Association of Law Libraries

Don Hancock
Administrator
Southwest Research and Information Center

Deirdre Schlunegger
Chief Executive Officer
STOP Foodborne Illness

Daphne Wysham
Co-Director
Sustainable Energy and Economy Project

David Williams
President
Taxpayers Protection Alliance

Thad Guyer
Partner
T.M. Guyer & Ayers & Friends

Ken Paff
National Organizer
Teamsters for a Democratic Union

Diane Wilson
Board Member
Texas Injured Workers

Paul Taylor
Executive Director
Truckers Justice Center

Evelynn Brown, J.D., LL.M
Chief Executive Officer
The Brown Center for Public Policy aka Whistlewatch.org

Betsy Combier
President
The E-Accountability Foundation

Conrad Martin
Executive Director
The Fund For Constitutional Government

James Landrith
Founder/Editor/Publisher
The Multiracial Activist

Cletus Stein
Coorindator
The Peace Farm

John Whitehead
President
The Rutherford Institute

Mindy Spatt
Communications Director
The Utility Reform Network

Susan Nevelow Mart
Director
The William A. Wise Law Library - University of Colorado at Boulder

Roy Gutterman
Director
Tully Center for Free Speech - Syracuse University

Celia Viggo Wexler
Senior Washington Representative
Union of Concerned Scientists

Dane vonBreichenruchardt
Founder, Chair, President
U.S. Bill of Rights Foundation

Michael Russo
Federal Program Director
U.S. Public Interest Research Group (U.S. PIRG)

Linda Petersen
President
Utah Foundation for Open Government

John Blair
President
Valley Watch, Inc.

Brad Friedman
Co-Founder
VelvetRevolution.us

Cyrus Mehri, Co-Founder
Reuben Guttman, Co-Founder
Voices for Corporate Responsibility

David Swanson
Co-Founder
Warisacrime.org

Nada Khader
Executive Director
WESPAC Foundation

Janine Blaeloch
Director
Western Lands Project

Donald Soeken, Ph.D.
President
Whistleblower Support Center and Archive

Tracy Davids
Executive Director
Wild South

Kim Witczak
Woody Matters

Paula Brantner
Executive Director
Workplace Fairness