On October 17, the Department of Justice (DOJ) released a report with detailed recommendations for improved regulations to protect whistleblowers in the Federal Bureau of Investigation (FBI). The report, initially published in April, was recently released to the public in response to pressure from Senators Charles Grassley (R-IA) and Ron Wyden (D-OR). The 11 recommendations included in the report could prompt a step in the right direction for the FBI. However, the changes suggested by the DOJ are far from perfect.
Historically, whistleblowers at the FBI have found it difficult to report misconduct, and those who have done so typically faced severe retaliation. These problems caught the attention of the executive and legislative branches. Nearly two years ago, President Obama ordered a review of this dangerously broken system. Senator Grassley summed up the problem when he said, “In an agency with so much focus on the chain of command, it makes no sense for the FBI to be the only agency in the federal government not to protect disclosures of waste, fraud, and abuse to immediate supervisors”; Senator Wyden further explained, “The FBI has had special rules for its own employees for decades that desperately need to be updated.”
A common example of the retaliation whistleblowers encounter is demotion to a basement office and reduction in assigned work. This treatment opens the door for the whistleblowers to be deemed “ineffective” employees, harming their professional reputations and creating reasons for termination. The DOJ report begins to address some of the policies that encourage this retaliatory culture.
One particularly notable recommendation is the expansion of the list of persons to whom a protected disclosure may be made, which would allow employees to report problems to the second-highest ranking official in addition to the highest-ranking official in each field office. This change could increase a whistleblower’s likelihood for success in reporting corruption.
Another meaningful recommendation is the suggestion that the FBI award compensatory damages to whistleblowers if their allegations are correct. This proposal, if implemented, has the potential to counterbalance the punishment that individuals who report problems typically face. Another promising proposed change would allow equal access to witnesses for FBI whistleblowers. In the past, FBI management could use former employees as witnesses while the whistleblower could not. It is about time this unjust policy is reversed.
Unfortunately, however, some of the changes recommended in the report could actually have a negative impact on whistleblower protection, and others just fall short of creating any meaningful change. For instance, DOJ suggests that the FBI publish decisions on whistleblower cases, when possible. This proposal is not strong enough, as publishing the decisions should be mandatory—rather than being left up to the discretion of the FBI, in which case whistleblowers are left in the dark about what the laws truly are. In another imperfect solution, DOJ proposes access to an Alternative Dispute Resolution through the creation of a voluntary mediation program for FBI whistleblower cases. This type of mediation, however, is not independent enough to differ from the FBI’s internal review of these cases.
Furthermore, the DOJ’s recommendations don’t include increasing whistleblowers’ access to courts, a change that could significantly help FBI whistleblowers by providing them with the opportunity to have their cases heard. Mike German, former FBI special agent who frequently—and courageously—reported misconduct at the Bureau, argues that access to courts could significantly improve whistleblower protections and would “keep the agency honest.”
Senator Grassley agrees that the recommendations could use some work. “Nobody’s got on rose-colored glasses that the culture for whistleblowers at the FBI will change anytime soon, but many of the items outlined in the FBI’s analysis are promising,” he said. “I’m not a fan of all of the recommendations, but it would at least be a step forward if some of them are actually implemented and carried out.”
The Project On Government Oversight concurs; we are pleased to see acknowledgment that the system is disturbingly flawed, but DOJ’s recommendations don’t quite meet our expectations for increased whistleblower protection. Nevertheless, implementation of select changes could certainly increase support for whistleblowers who are determined to report corruption in a crucial federal agency.