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Now more than ever, stronger whistle-blower protection essential

May. 19, 2012 - 04:11PM   |  
By TOM DEVINE and LOUIS CLARK   |   Comments

Most Washingtonians now know the appalling details surrounding the General Services Administration scandal in Las Vegas. But while hundreds of GSA employees attended the October 2010 conference, and more than $820,000 in federal money was misused, only recently has the news emerged.

Which brings up a pressing question: With a scandal of this size, where were the whistle-blowers?

Notably, at least one courageous employee did come forward and work with GSA Inspector General Brian Miller on the investigation. But Miller hit the nail on the head when he explained at an April House committee hearing why so few employees blew the whistle: They would have been “squashed like a bug” for doing so.

While this should be a deplorable revelation, evidence shows that fear about exposing wrongdoing is commonplace because public servants who defend taxpayers routinely become martyrs.

Last year, the Merit Systems Protection Board released the findings of an ambitious project that surveyed nearly 72,000 federal employees. The study was nearly identical to a survey of a smaller (but sizable) number of employees in 1992. The results reveal how the treatment of federal whistle-blowers deteriorated substantially from 1992 to 2010, when the data was collected.

Today’s whistle-blowers, in comparison to 20 years ago, are nine times more likely to be fired; six times more likely to be suspended; nearly five times more likely to receive a grade-level demotion; 2½ times as likely to be assigned to a different geographical region; and twice as likely to be denied a promotion.

They are more likely to be shunned, harassed or transferred, to receive poor performance appraisals and to be forced to take a “fitness for duty” examination. No type of retaliation is less likely to happen now than in 1992.

It is hard to know who or what to blame for this apparent increase in abusive behavior. But the pathetic legal rights that federal whistle-blowers “enjoy” must be the key culprit.

Federal whistle-blowers do not have normal access to court because the Federal Circuit Court of Appeals has had a monopoly on appellate review since 1982. The appellate court’s track record for decisions on the merits since 1994, when Congress last strengthened the Whistleblower Protection Act, is 3-220 against whistle-blowers.

The court’s decisions have set disastrous precedents and sent a chilling message to would-be whistle-blowers. It has eliminated protections for those who report within the chain of command (immediate and higher-level supervisors), and denied protections for those whose duties require identifying problems. Essentially, those on the front lines fighting fraud, waste and abuse aren’t protected when they do.

The solution: Congress can enact specific protections that protect workers when they disclose wrongdoing. It can give federal workers normal access to court, as it has done 10 times in the last decade for corporate whistle-blowers.

But Congress has failed to pass the Whistleblower Protection Enhancement Act (WPEA). From 2006 to 2010, the bill passed unanimously six times in separate House and Senate votes, but was sabotaged each time through shady maneuvers. In the final hours of the 2009-2010 session, an anonymous senator placed a hold on the bill after it was unanimously approved by the Senate and House (before being sent back to the Senate after being made weaker).

But there is hope. On May 8, the Senate again unanimously approved a strong form of the WPEA. But despite unanimous approval last November, the House Oversight and Government Reform Committee has not reported the corresponding bill to the full House.

The House should proceed without delay.

Louis Clark is president and Tom Devine is legal director of the http://www.whistleblower.org">Government Accountability Project, a nonprofit whistleblower protection organization.

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