Coalition Letter to Congress Regarding Whistleblower Reforms


141 Diverse Groups Support Swift

Action to Restore Strong, Comprehensive Whistleblower Rights

An Open Letter to Members of Congress

August 17, 2012

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 Basis 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

John Gage

National President

American Federation of Government Employees

Stephen A. Sanders

Director

Appalachian Citizens’ Law Center, Inc.

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

David Deal

Chief Executive Officer

Community IT Innovators

Greg Smith

Co-Founder

Community Research

Joni Arends

Executive Director

Concerned Citizens for Nuclear Safety

Lokesh Vuyyuru, MD

Founder

Concerned Citizens of Petersburg

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

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

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

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

Angela Smith

Coordinator

HEAL-ONLINE.ORG

Representative Gerry Pollet

Executive Director

Heart of America Northwest

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

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

Janette Parker

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

Douglas Meiklejohn

Executive Director

New Mexico Environmental Law Center

Miriam German

No Nukes Northwest

David A. Kraft

Director

Nuclear Energy Information Service (NEIS)

Tim Wheeler

Co-Administrator

OAK (Organizations Associating for the Kind of Change America Really Needs)

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

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

Thad Guyer
Partner

T.M. Guyer & Ayers & Friends

Ken Paff

National Organizer

Teamsters for a Democratic Union

Diane Wilson

Board Member

Texas Injured Workers

Evelynn Brown, J.D., LL.M

Chief Executive Officer

The Brown Center for Public Policy aka Whistlewatch.org

James Landrith

Founder/Editor/Publisher

The Multiracial Activist

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

Linda Petersen

President

Utah Foundation for Open Government

John Blair

President

Valley Watch, Inc.

Brad Friedman

Co-Founder

VelvetRevolution.us

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

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