Passed in 1989, the Whistleblower Protection Act (WPA) is one of the primary statutes that outlines public employees’ right to speak out about misconduct, aimed at ensuring that all government employees can safely disclose “violations of laws, rules, or regulations, or mismanagement, gross waste of funds, abuse of authority and or a substantial and specific danger to public health and safety.”
Additionally, Executive Order 12731, issued in 1990, requires all federal employees to “disclose waste, fraud, abuse, and corruption to authorities.” This Executive Order makes such disclosures mandatory in order to ensure standards of ethical conduct for all executive branch employees.
To supplement the WPA, Congress passed the Whistleblower Protection Enhancement Act (WPEA) in 2012 to strengthen protections for federal employees reporting waste, fraud, and abuse. The WPEA expands the qualifications for protected disclosures while additionally expanding the penalties imposed for violating whistleblower protections. In order to educate agency employees about prohibitions on retaliation for whistleblowers as well as whistleblower rights, the WPEA established the position of the Whistleblower Protection Ombudsman
Under the WPA, federal employee whistleblowers were not eligible for protections if they were not the first person to disclose given misconduct, disclosed information to a co-worker or supervisor, disclosed policy decision outcomes, or blew the whistle while carrying out job duties. The WPEA clarified the scope of protected disclosures and closed various administrative loopholes to augment protections established by the WPA.
The WPEA delineates that whistleblowers do not lose protections if a disclosure was made to a supervisor, while off duty, during the course of the employee’s day, or if the wrongdoing was previously reported on. Whistleblowers would also not lost protected status due to the amount of time that has passed since misconduct occurred, or due to the employee’s motives when reporting.
There are also numerous anonymity provisions for federal whistleblowers. Both the WPA and the Inspector General Act of 1978 state that a whistleblower’s identity must be protected unless the employee making the disclosure consents to disclosing their identity. The Inspector General Act states:
(h) The identity of any individual who makes a disclosure described in subsection (a) may not be disclosed by the Special Counsel without such individual’s consent unless the Special Counsel determines that the disclosure of the individual’s identity is necessary because of an imminent danger to public health or safety or imminent violation of any criminal law.
Additionally, the Inspector General Act not only mandates the Office of the Inspector General (OIG) must protect whistleblower confidentiality only disclosing it in the same manner as required by the WPA, but also prohibits retaliation based upon whistleblowers disclosures to the OIG.
Anonymity protection provisions are not only detailed in laws pertaining to whistleblowers. There are also government-wide laws that apply to the cases of whistleblower disclosures and protections, such as the Privacy Act of 1974. The Privacy Act prevents any disclosure of the personal information of a government employee without their consent. This clause would prohibit any government or agency official, even the President, from releasing the identity of an employee, whistleblowers included. If violated, civil and criminal penalties would apply to those exposing the identities of government employees.
Retaining the right to confidentiality and anonymity are critical not only for the safety of whistleblowers, but also for the security of the whistleblowing process.
Whistleblower Protection Laws for Intelligence Community Whistleblowers
Intelligence community whistleblowers operate under a different set of rules than other federal employees or corporate whistleblowers that leave them uniquely vulnerable.
When the Whistleblower Protection Act was passed in 1989, it only applied to federal employees in unclassified environments by design due to concerns around national security. However, in the years since, a large framework of laws and executive orders have emerged governing whistleblowers in the intelligence community, including the Intelligence Community Whistleblower Protection Act, the Intelligence Authorization Act for Fiscal Year 2010, Presidential Policy Directive 19 (“Protecting Whistleblowers with Access to Classified Information”), and the Intelligence Authorization Act for Fiscal Year 2014.
To assist intelligence community whistleblowers excluded under the WPA, the Intelligence Community Whistleblower Protection Act (ICWPA) was passed in 1998. Under the terms of the legislation, a whistleblower who intends to report to Congress a complaint or information about an “urgent concern” is required to go to the inspector general (IG), who then has a 14-day period to determine “whether the complaint or information appears credible.” If it is found to raise an urgent concern and to be credible, then the IG must transfer the information to the Director of National Intelligence, who is required to forward the complaint to the congressional intelligence committees within seven days.
Alternatively, if the IG does not find the complaint to be credible, the whistleblower may communicate with the intelligence committees in Congress – but only if they have the permission of the Director of National Intelligence, who is appointed by the President. As our General Counsel David Colapinto noted in an interview with the Guardian, “The system inherently has a chilling effect because it requires potential whistleblowers to identify themselves to their seniors and that can be career suicide.”
The ICPWA does include a provision protecting the whistleblower’s identity from disclosure, However, aside from that provision, ICPWA does not offer protections from retaliation and does not provide mechanisms for challenging retaliation.
In response to this weakness, the Intelligence Authorization Act for Fiscal Year 2010 included the first general provisions for protecting intelligence community whistleblowers to encourage lawful disclosures to the OIGIC. However, the majority of its provisions are general and subject to multiple interpretations.
Between 2012 and 2014, additional efforts were made to strengthen protections for the intelligence community. Presidential Policy Directive 19 was signed in 2012 and provided the first specific prohibitions of reprisals against intelligence community whistleblowers. The Intelligence Authorization Act for Fiscal Year 2014 codified these provisions into law, and the Intelligence Community Directive (ICD)-120 established how provisions would be implemented.
Also in 2014, Congress enacted 50 U.S.Code §3234 which clarifies what information may be included in an intelligence community whistleblower complaint, including “a violation of any law, rule or regulation” or “abuse of authority.” Section 3234 requires the President to provide for the enforcement of this statute.
And in January 2018, the FISA Amendments Reauthorization Act became law, extending whistleblower protections to contractors, who make up around a quarter of the intelligence community workforce. However, it has been criticized for lacking enforcement mechanisms, leaving contractors potentially subject to retaliation.
Although significant progress has been made in the last decade, intelligence community whistleblowers are still extremely vulnerable, especially since if they are retaliated against for their disclosures, they do not have access to the court system but rather have to rely on an internal review process that carries significant risk of bias.
Federal Whistleblower Protection Reforms to Bolster Current Whistleblower Laws
Federal employee whistleblowers are not afforded the same whistleblower and anti-retaliation protections as those who work in private industry, publicly traded companies, and even local and state government. Several direct reforms to crucial pieces of whistleblower protection law would strengthen current whistleblower protections for federal employees and create a culture that better protects these whistleblowers.
On January 28, 2020, the National Whistleblower Center’s General Counsel, David Colapinto, testified before the House Subcommittee on Government Operations hearing entitled “Protecting Those Who Blow the Whistle on Government Wrongdoing” to speak on the critical need for strengthened protections for federal employee whistleblowers. During his remarks, Colapinto stressed crucial components for effective anti-retaliation protections to work.
These included: stronger assurances of confidentiality for federal whistleblower complaints and disclosures, further legal recourses for federal employees to recover damages when they suffer from violations of the Privacy Act of 1974, access to U.S. District Courts and a jury of their peers, and changes in the culture towards whistleblowers in the federal government.
To supplement his testimony, Colapinto submitted additional answers in response to Questions for the Record requested by Chairman Gerald Connolly (D-VA). In this, he recommends clarifying the law in three areas.
Protecting the Confidentiality of Whistleblowers in the Intelligence Community
After the complaint of the intelligence community whistleblower who reported on alleged improper conduct regarding President Trump’s communications with foreign leaders became public, it was quickly politicized. Many supporters of the Administration lobbied threats of exposure and violence against the whistleblower. It was a clear example of why confidentiality is critical for whistleblowers and has been guaranteed by Congress for decades. However, the legal framework that ensures such anonymity can be confusing.
It is important for Congress to enact clarifying amendments to certain whistleblower provisions in the Civil Service Reform Act and the statute protecting the confidentiality of intelligence community whistleblowers. Specifically, the definition of “personnel action” that is actionable in a whistleblower claim needs clarification. The definition should be expanded to protect against retaliatory investigations, discrimination against an employee due to protected whistleblowing activities and the unlawful disclosure of the identity of a whistleblower who has made a confidential complaint under the Inspector General Act.
Read the full attachment for the Questions for the Record here.
Enhancing Remedies for the Wrongful Disclosure of Information for Confidential Whistleblowers
Whistleblowers making confidential disclosures have few legal recourses if their confidentiality is breached. Such a breach can be detrimental to a whistleblower’s life and livelihood. Therefore, a clarifying amendment is needed to increase penalties and enhance remedies for the wrongful disclosure of information relating to a whistleblower whose information is protected in a system of records under the Privacy Act.
If an agency fails to preserve the confidentiality of a whistleblower who made a protected disclosure in a manner deemed intentional or willful, the amendment would detail remedies in the form of compensatory damages including but not limited to non-monetary damages for farm to reputation or emotional distress. Further, a willful or intentional disclosure of information to any party not entitled to receive it would be a felony and the person in question may be subjected to jail time or a significant fine. Not only is it critical that whistleblowers are protected in the instance of retaliation, it is important that those intending to bring harm to a whistleblower face punishment and therefore are disincentivized to do so.
Read the full attachment for the Questions for the Record here.
Providing Court Access and Jury Trial Provisions to Whistleblowers
Unlike other whistleblowers, federal employee whistleblowers have only a single avenue to seek justice after retaliation occurs. Currently, federal whistleblowers must bring their claims to the Merit Systems Protection Board (MSPB) or the Office of the Special Counsel (OSC) in order for their case to be investigated. However, this process is plagued with inefficiencies, political calculations, and an ever-growing backlog. In response, the National Whistleblower Center has launched a grassroots campaign that demands Congress pass needed legislation to permit federal employee whistleblowers to file cases in federal district courts. You can learn more about that campaign and take action here.
The suggested reform would afford federal whistleblowers the ability to remove their complaint from the MSPB or OSC and seek corrective action or file unlawful retaliation claims by bringing their case to the appropriate U.S. District Court after a reasonable period of time, generally considered to be 180 days.
While the structure of the MSPB may be appropriate for handling the majority of its cases, which are simple civil service appeals that don’t raise political issues, it is not well suited for whistleblower cases, especially as these cases can easily become politicized.
The MSPB is structured completely differently than the federal court system, which is designed to handle controversial cases and where there is a judicial review process for expertise. In contrast, MSPB members are appointed by the President and confirmed by the Senate, and two out of three board members must be of the President’s own political party and the remaining from the opposing party. This means that when there is a politicized case, there will always be two board members from the party in office, coupled with administrative judges that do not necessarily have judicial qualifications, since the board can appoint any federal employee to that spot without approval by Congress.
Further, the MSPB must hold a quorum to make any determinations on cases, and currently, the MSPB has not had a quorum in over three years and has not had a single sitting member since May of 2019. This has led to a backlog of more than 2,500 pending whistleblower cases that will take years to resolve.
Affording federal employee whistleblowers the ability to try their claims to U.S. District Courts would streamline the process of justice and provide federal employees the same rights as other whistleblowers.
Read the full attachment for the Questions for the Record here.