Congress Moves to Protect Federal Whistleblowers

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October 3, 2004

 

Congress Moves to Protect Federal Whistleblowers

By ROBERT PEAR

 

WASHINGTON, Oct. 2 - Over strenuous objections from the Bush

administration, Congress is moving to increase protections for federal

employees who expose fraud, waste and wrongdoing inside the government.

 

Lawmakers of both parties say the measures are needed to prevent

retaliation against such whistleblowers, who reveal threats to public

health, safety and security.

 

But the administration says the bill unconstitutionally interferes

with the president's ability to control and manage the government.

 

On Wednesday, a House committee approved a whistleblower protection

bill. In July, a Senate committee approved a similar measure offering

more extensive protections to whistleblowers.

 

Representative Todd R. Platts, Republican of Pennsylvania, the sponsor

of the House bill, said: " We need to protect public servants who

expose fraud and intentional misconduct. Court decisions in the last

10 years have eroded whistleblower protections, so that if you're a

federal employee, you're often risking your job - and the wrath of

your superiors - if you come forward with evidence of wrongdoing.''

 

The Senate bill gained momentum when Senator Susan Collins, Republican

of Maine, chairwoman of the Committee on Governmental Affairs, joined

Senator Daniel K. Akaka, Democrat of Hawaii, in pushing it.

 

" The campaign for this legislation went from dormant to active when

Senator Collins embraced the bill a few months ago,'' said Thomas M.

Devine, legal director of the Government Accountability Project, a

watchdog group that works with whistleblowers. " That was the turning

point.''

 

While the legislation has broad support and a compromise appears to be

within reach, it is impossible to know whether the measure will become

law. As evidence of a need for legislation, lawmakers cited dozens of

cases, including these:

 

¶Federal investigators found that two Border Patrol agents, Mark Hall

and Robert Lindemann, were disciplined after they disclosed weaknesses

in security along the Canadian border.

 

¶Teresa C. Chambers was dismissed from her job as chief of the United

States Park Police after she said the agency did not have enough money

or personnel to protect parks and monuments in the Washington area.

 

¶The nation's top Medicare official threatened to fire Richard S.

Foster, the chief Medicare actuary, if he provided data to Congress

showing the cost of the new Medicare law, which exceeded White House

estimates.

 

Airport baggage screeners say they have been penalized for raising

concerns about aviation security. But in August, an independent

federal agency, the Merit Systems Protection Board, ruled that they

had none of the whistleblower rights available to other federal

employees. The government, it said, can " hire, discipline and

terminate screeners without regard to any other law.''

 

The United States Office of Special Counsel, which investigates

complaints of reprisal before they go to the board, has a large

backlog of whistleblower cases, including many pending more than a year.

 

The terrorist attacks of Sept. 11, 2001, have made the government more

secretive, but have also prompted whistleblowers to come forward in

greater numbers. " They feel they can no longer stand by knowing that

people's lives are at risk,'' said Danielle Brian, executive director

of the Project on Government Oversight, another watchdog group.

 

Senator Charles E. Grassley, Republican of Iowa, said he knew of

several instances in which federal agencies had retaliated against

whistleblowers by revoking their security clearances. Because they can

no longer do their jobs, Mr. Grassley said, " the pulling of a security

clearance effectively fires employees.''

 

Administration officials gave several reasons for opposing the bills.

Peter D. Keisler, an assistant attorney general, said the legislation

would encourage frivolous complaints by disgruntled employees,

crippling the ability of senior officials to manage the federal work

force.

 

" The bill would convert every federal employee into a potential

whistleblower and every minor workplace dispute with a supervisor into

a potential whistleblower case,'' Mr. Keisler said.

 

Mr. Akaka said the objections came as no surprise. " The Justice

Department has an institutional conflict of interest'' because it is

responsible for defending agencies accused of retaliating against

whistleblowers, he said.

 

Congress has repeatedly tried to protect conscientious civil servants,

under laws adopted in 1978, 1989 and 1994. But lawmakers said these

efforts had been frustrated by the court that hears appeals from

aggrieved federal employees, the United States Court of Appeals for

the Federal Circuit.

 

The court often assumes that a federal agency acted properly unless an

employee offers " irrefragable proof to the contrary.''

 

The Senate committee cited this as one of many issues on which the

court had misinterpreted the law and the intent of Congress. " By

definition,'' it said, " irrefragable means impossible to refute. This

imposes an impossible burden on whistleblowers.''

 

By contrast, the House and Senate bills would protect the disclosure

of any information that a whistleblower " reasonably believes'' to be

evidence of government illegality or misconduct.

 

The legislation would also clarify the right of federal employees,

like Mr. Foster, the Medicare actuary, to provide information to

Congress, free of threats or reprisals.

 

Copyright 2004 The New York Times Company