BK Blog Post
Posted by Tom Devine.
Tom Devine is legal director of the Government Accountability Project, where he has worked to assist thousands of whistleblowers to come forward and has been involved in the all of the campaigns to pass or defend major whistleblower laws over the last two decades.
On April 14th, the Senate Judiciary Committee unanimously passed the Federal Bureau of Investigation Whistleblower Protection Enhancement Act (FBI WPEA) of 2015 (S. 2390). Introduced by Chairman Chuck Grassley and Ranking Member Leahy, it would upgrade one of the least effective whistleblower policies in the U.S. Code and ensure that the nation’s top law enforcement agency is held accountable to the rule of law. The bill currently enjoys extensive bipartisan co-sponsorship from members of the Senate Whistleblower Protection Caucus.
In March, GAP and its coalition partners and whistleblowers sent a letter to the Senate Judiciary Committee applauding the proposed reforms. Specifically, S. 2390:
* Provides parity with the Whistleblower Protection Act (WPA) in many critical respects, including by:
* Expands coverage to all relevant witnesses, including applicants for employment or new positions;
* Closes loopholes that previously excluded protection for disclosures to supervisors, within the chain of command and to Congress;
* Grants authority for the Office of Inspector General to obtain temporary relief against retaliation through “stays” while an appeal proceeds;
* Establishes parity for protected activity with the WPA to cover the full scope of relevant misconduct, including illegality, gross waste, gross mismanagement, or a substantial and specific danger to public health or safety;
* Increases transparency into how the Act works in practice, through publication of its track record ranging from the number of cases filed and completed, to the whistleblowers’ won-loss record;
* Commissions independent review by the Government Accountability Office of the Act’s track record, to facilitate further improvements based on lessons learned;
* Clarifies that the publication of reprisal determinations should be consistent with the practices and procedures in place for the Merit Systems Protection Board (which posts decisions on its website) and consistent with FOIA;
*Establishes an 18-month the deadline for DOJ to promulgate implementing regulations;
*Adds new requirements for DOJ’s regulations:
*Adds a new rule of construction to make clear that nothing shall be construed to alter or amend any law, regulation, or Executive Order regarding the handling or disclosure of information, including classified information;
*Specifies additional details for GAO to examine in its review of the effect of this legislation; and
*Provides that complaints filed before the DOJ regulations become effective will be investigated and reviewed according to current rules, but that complaints where investigations are still pending when DOJ regulations become effective will be adjudicated under the new rules. Substantive changes will apply to complaints pending on the day the bill is enacted.
Through today’s unanimous vote in support of the FBI WPEA, the Senate Judiciary Committee sent an unwavering message that FBI employees deserve credible protections when they report government wrongdoing. Congress owes it to the nation’s leading law enforcement organization to pass S. 2390 without delay.