Once again, the hearing record clearly and overwhelming proves that whistleblower reform is long overdue. There were no credible arguments presented that court access and jury trial should not be provided to all federal employees, including national security employees.
Pictured here are Angela Canterbury of Public Citizen, Prof. Robert Vaughn, William Bransford of the Senior Executive Association, Sen. Daniel Akaka (D-HI), Danielle Brian of the Project on Government Oversight (POGO) and Tom Devine of the Government Accountability Project (GAP). White House Ethics Counsel Norm Eisen is between Mr. Bransford and Sen. Akaka.
Senator Akaka (D-HI) opened the hearing by stating that “federal employee whistleblower play a crucial role in alerting Congress and the public to government wrongdoing and mismanagement, protecting our civil rights and civil liberties, helping to keep us safe, and rooting out waste, fraud, and abuse.” Senator Akaka explained that the purpose of the hearing was to determine how to best protect national security whistleblowers and whether or not federal employees should be provided with jury trials.
Deputy Assistant Attorney General for the Department of Justice, Rajesh De, basically repeated the same testimony that he presented at the House hearing on May 14th. The Administration remains supportive of a variety of the improvements to the Whistleblower Protection Act contained in the House and Senate versions of the bill. However, they have stopped short of fulfilling President Obama’s campaign promises. The Obama Administration has not taken a position on jury trials for Title 5 federal employees and has refused to support jury trials for national security employees, despite promising to do so in the National Whistleblowers Center’s candidate survey.
The main difference from last month’s House hearing was the hard hitting questions by Senator Claire McCaskill (D-MO). Senator McCaskill stated that she was “perplexed and confused” why anyone would not want “every whistleblower on the face of the planet” to have access to a jury trial, especially federal employees. The Senator asked Mr. De to give her “any rational basis” for treating federal employees like second-class citizens. Mr. De’s response that it was too soon to tell the ramifications from the recently passed bills containing jury trials and that the Administration needed more time to investigate the issue was less than convincing. Senator McCaskill responded that whistleblower cases are hard to make, expensive to pursue, and it is difficult to find attorneys willing to take whistleblower cases. She continued that whistleblowers are doing the “heavy lifting” when it comes to reporting fraud and abuse and it is about time that we start “respecting and being deferential to whistleblowers.”
Senator Roland Burris (D-IL) also asked some important questions on the new “Intelligence Community Whistleblower Protection Board” proposed as an alternative to the Merit Systems Protection Board for national security employees. National security employees, who are responsible for preventing the next 9/11, must be able to report intelligence agency failures without fear of retaliation, and there was no coherent rationale provided at the hearing for excluding employees at the intelligence agencies and FBI from court access provisions contained in the House bill.
The testimony of William L. Bransford, General Counsel for the Senior Executive Association, was equally unconvincing arguing against providing for jury trials in whistleblower cases. Mr. Bransford argued that managers will be afraid to discipline “problem employees” if whistleblowers are provided access to jury trials. My question is: What is wrong with that? Why shouldn’t managers be afraid to retaliate against employees? If an employee really is a ‘bad apple’ their supervisor should be able to document why the employee should be reprimanded and proceed with proper disciplinary procedures. In my opinion, this general argument that supervisors will be chilled has little basis in reality. Managers already face jury trials for discriminating against employees on other grounds, however they are still able to effectively discipline employees and maintain a productive workforce.
Robert Vaughn a professor at American University’s Washington College of Law, Danielle Brian the Executive Director of the Project On Government Oversight, and Tom Devine the Legal Director of the Government Accountability Project presented compelling testimony on why all federal employees, including national security employees, should have full access to court and jury trials. Professor Vaughn submitted a mini treatise on the role of juries as his written testimony and provided support through detailed analysis dispelling stereotypes that are commonly used to argue against juries. Prof. Vaughn reminded the committee that academic studies show that juries decide complex cases without difficulty and that they are not biased in favor of the “little guy” in cases brought against large organizations.
I hope that after hearing today’s testimony the Senate takes action to finally protect all federal employee whistleblowers. You can do your part by sending a letter to Congress and calling Senator Akaka (202-224-6361) and Senator Susan Collins (R-ME) (202-224-2523) Chairman and Ranking Member of the Senate Committee on Homeland Security and Governmental Affairs.
If you would like more information on the Senate hearing please visit the new Federal Employee Whistleblower Protection page on the NWC website.