June 12, 2001
BILL WOULD PROTECT WHISTLE BLOWERS FROM THEIR SUPERVISORS Federal whistleblowers who approach their supervisors with allegations of government wrongdoing would be protected from retaliation under a bill introduced last week in the Senate. Under proposed legislation introduced by Sen. Daniel K. Akaka, D-Hawaii, employees who disclose agency waste, fraud and abuse to their supervisors or members of Congress would be protected from reprisal. Akaka is chairman of the Senate Governmental Affairs Subcommittee on International Security, Proliferation and Federal Services. Paul Cardus, a spokesman for Sen. Akaka, said the bill (S. 995) attempts to restore the original intent behind the Whistleblower Protection Act of 1989 and its 1994 amendments--to protect all federal whistleblowers from reprisal. "The [Federal Circuit] Court of Appeals hasn't enforced the legislation as Congress intended," said Cardus. Akaka's bill would clarify language in the existing law to ensure that any disclosure of information is protected. According to Akaka, court decisions in whistleblower cases have created loopholes that have eroded the law's protections for employees. In recent cases, judicial interpretation held that employees who, as part of their job, approach their supervisors or possible wrongdoers with allegations of government waste, fraud, and abuse are not protected from retaliation. However, the Court of Appeals, which has sole jurisdiction over the Whistleblower Protection Act, has ruled that employees who disclose wrongdoing to the Office of Special Counsel or their agency's inspector general are protected under the law. "The exceptions resulting from the Federal Circuit's rulings defeat the underlying good government goals of the Whistleblower Protection Act by removing protection where it counts the most: for federal employees, who acting as public servants, are carrying out their responsibilities to the public as employees of their agencies," said Akaka. S. 995 would also prevent agencies from requiring whistleblowers to sign any agreement that prohibits them from disclosing allegations of wrongdoing to the appropriate members of Congress or executive branch employees. Under the proposed legislation, the Office of Special Counsel, which handles whistleblower complaints and is responsible for enforcing the Whistleblower Protection Act, would also be given litigating authority in whistleblower cases.
According to Jane McFarland, a spokeswoman for the Office of Special Counsel, the bill would allow OSC to formally join a court case on a whistleblower's behalf. Currently, the Office of Special Counsel is represented by the Justice Department, which also represents agency managers in such cases, said McFarland. McFarland said OSC would interpret the law protecting whistleblowers more broadly if it were granted litigating authority in whistleblower cases. "We feel that if the Special Counsel had some ability to interpret [the law], we wouldn't have some of the limited court decisions we are getting now," she said. S. 995 has been referred to the Governmental Affairs Committee.
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