Yesterday, the Department of Justice held a listening session with representatives of the National Whistleblowers Center, American Civil Liberties Union, Government Accountability Project and Project on Government Oversight to discuss needed improvements in the DOJ regulations that implement the Whistleblower Protection Act for FBI employees. The meeting was called as a result of a directive issued by President Obama ordering the Attorney General, in consultation with the Office of Special Counsel and FBI employees, to make recommendations to improve the effectiveness of the DOJ whistleblower program for FBI employees.
Steve Kohn and I attended the meeting on behalf of NWC and provided our insights on the weaknesses in the current FBI whistleblower program after representing several FBI employees who faced whistleblower retaliation over the past 20 years.
The NWC and ACLU also presented a briefing paper at the meeting listing 14 specific recommendations that are needed to improve the DOJ regulations on whistleblower rights for FBI employees. A copy of the briefing paper can be found here.
Among the most important recommendations are changing the definition of what is a “protected disclosure” to protect FBI employees from retaliation who report wrongdoing to supervisors and for reporting through their chain of command, providing for reasonable deadlines for rulings and decisions in cases, in order to avoid the administrative delays that currently plague the program, appointing statutory Administrative Law Judges who are independent, publishing decisions in FBI whistleblower cases and making remedies and other provisions consistent with recent reforms enacted last November in the Whistleblower Protection Enhancement Act.
The Attorney General’s report to President Obama is due in April of this year. Thereafter, we expect the DOJ will announce changes to its current regulations on whistleblower protections for FBI employees through rulemaking, which will provide an opportunity for the public to submit comments on proposed rule changes.
The DOJ’s whistleblower program was non-existent in the 1990’s when Frederic Whitehurst blew the whistle on the FBI crime lab. Even though Congress had enacted a special provision within the Whistleblower Protection Act of 1989 to require the President and Attorney General to implement regulations and enforce whistleblower rights for FBI employees (5 U.S.C. § 2303), the government refused to create any FBI whistleblower program, as required by law, until after Fred Whitehurst sued President Clinton and Attorney General Reno alleging whistleblower retaliation in 1995. During the midst of that lawsuit, President Clinton ordered the Attorney General to finally create the program that Congress required be implemented in 1989.
Since the DOJ regulations were created in 1998 there have been continual problems in enforcement and many complainants have complained of administrative delay and program ineffectiveness. In addition, none of the decisions of the DOJ are published giving the FBI a distinct advantage in litigating claims to defeat FBI whistleblowers.
