Letter supporting the restoration of full whistleblower protections

141 Diverse Groups Support SwiftAction to Restore Strong, Comprehensive Whistleblower RightsAn Open Letter to Members of CongressAugust 17, 2012The undersigned organizations and businesses write to urge completion of the landmark, decades-longlegislative effort to restore credible whistleblower rights for federal employees.We support legislation providing genuine protection for public employees who serve the American publicby risking their careers to protect taxpayers. Whistleblower protection is a foundation for any change thepublic can trust, whether the issue relates to economic recovery, civil rights and civil liberties,prescription drug safety, environmental protection, infrastructure spending, national health insurance, orforeign policy.In May 2012, the Senate unanimously passed the Whistleblower Protection Enhancement Act (WPEA)for the fourth time since 2006. It is well past time to finish the job.Unfortunately, every month that passes means the public is deprived the benefit of disclosures fromfederal government whistleblowers about fraud, waste or abuses that could remain ongoing. On average,more than 15 whistleblowers a month lose initial decisions from administrative hearings at the MeritSystems Protection Board (MSPB), and less than one prevails.The Whistleblower Protection Act was last restored in 1994, and has since fallen victim to judicialactivism. The MSPB found that federal whistleblowers were nine times more likely to be fired in 2010compared to 1992. This culture of vulnerability maximizes government secrecy, which in turn breedscorruption.Under current law, federal employees are not eligible for whistleblower protections if they:are not the first person who discloses given misconductmake a disclosure to a co-worker;make a disclosure to a supervisor;disclose the consequences of a policy decision;blow the whistle while carrying out job duties.The inadequate protections afforded by current law remains a would-be whistleblower's best reason toturn a blind eye to government waste, fraud, abuse, as well as threats to public health and safety.We all want the same thing: that the Whistleblower Protection Enhancement Act become law this year.However, we urge you to send a final bill to the President’s desk that includes the best of both H.R. 3289and S. 743—not a watered-down version. In the interest of serving that purpose, we write to clarify themost essential elements to any legislation that we can credibly support. These elements, listed below, arecrucial to ensure that federal whistleblowers who protect taxpayer dollars and the public’s trust are givenadequate access to court, and provide meaningful protections for employees with access to classifiedinformation and those working in the intelligence community. Those landmark reforms have been thesubject of extremely thoughtful deliberation and consensus for many months.Absent any one of the elements listed below, we feel that we will be left with a bill that fails to adequatelyadvance whistleblower and taxpayer protections.

* Appellate review: The Federal Circuit cannot retain its monopoly on appellate review of theWhistleblower Protection Act. This court has a long history of frustrating the congressional mandate,evidenced by a consistent track record of ruling against whistleblowers for decisions on the merits. Since1994, when Congress last reaffirmed and strengthened those rights, the court has rejected 226 claims andsustained only 3 (as of June 2012).* Access to district court: Government whistleblowers deserve a right to a jury trial, similar towhat Congress has already granted to private-sector whistleblowers ten times since 2002. Further,whistleblowers should have the same burdens of proof afforded by the Whistleblower Protection Act of1989. Reducing agency employers’ burden of proof would be unprecedented and would roll back acornerstone of the Act that Congress has reaffirmed in every whistleblower law for corporate employeessince 1989.* Administrative due process: The summary judgment provision granting new powers for theMSPB to dismiss cases before a hearing is widely perceived as permission to deprive whistleblowers ofthe opportunity for any due process administrative day in court. At a minimum, summary judgment wouldforce unemployed whistleblowers to spend thousands of dollars for depositions before they even know ifa hearing will occur. That is too high a price for the legislation. This poison pill should be removed.* Security clearance due process reform: Revocation of security clearance is the harassment ofchoice against national security whistleblowers who challenge security breakdowns, fraud, waste, orabuse. Since losing security clearance can frequently lead to permanent blacklisting, the denial of dueprocess has much further consequences than simply depriving whistleblowers of fair play. As aconsequence, national security whistleblowers are unlikely to come forward unless they are willing to endtheir careers. This has deprived our country of the most effective source of information about nationalsecurity breakdowns, as well as evidence of waste, fraud and abuse.We appreciate your bipartisan consensus support for significant reforms, including closure of judiciallycreated loopholes; restoration of a functional, “reasonable belief” standard, codification of the anti-gagstatute, extension of whistleblower rights to the intelligence community through administrationregulations, establishment of due process standards to prevent retaliation through security clearances, andexpansion of contractor whistleblower rights in HR 3289.It is essential that the law clarify that the WPEA provisions add to, rather than substitute for, currentrights. A strong federal whistleblower statute is needed to close existing loopholes, and providecomparable rights and remedies to the dozen gold standard whistleblower rights that Congress has passedfor private sector employees since 2000.We know you share our commitment to more transparency and accountability in government. Passing astrong, bipartisan whistleblower reform law would do much to restore the public’s faith in Congress,ensure efficient and accountable government, and save taxpayer dollars.Major studies confirm that whistleblowers have been and will continue to be our best defense againstwaste, fraud and abuse. Inexcusably, they have been waiting over 12 years for rights that give them a fairchance to defend themselves when they defend the public by exposing government misconduct. Enoughis enough.Sincerely,

Robert A. ColeStaff AttorneyAdvocates for Basis Legal Equality, Inc.,Tiffiniy ChengCampaign CoordinatorA New Way ForwardRuth CaplanCampaign Co-ChairAlliance for DemocracySusan GordonDirectorAlliance for Nuclear AccountabilityLinda LipsenChief Executive OfficerAmerican Association for JusticeEmily FeltrenDirector of Government RelationsAmerican Association of Law LibrariesPatricia CallahanPresident/FounderAmerican Association of Small Property OwnersRudy FichtenbaumPresidentAmerican Association of University ProfessorsChristopher FinanPresidentAmerican Booksellers Foundation for Free ExpressionJohn GageNational PresidentAmerican Federation of Government EmployeesStephen A. SandersDirectorAppalachian Citizens' Law Center, Inc.Prudence AdlerAssociate Executive DirectorAssociation of Research LibrariesHeather CantinoRepresentativeAthens County Fracking Action Network

Samuel SagePresidentAtlantic States Legal Foundation, Inc.Jay FeldmanExecutive DirectorBeyond PesticidesShahid ButtarExecutive DirectorBill of Rights Defense CommitteeLinda Langess, Ph.D.Co-ChairBoundary County Concerned CitizensJane WilliamsExecutive DirectorCalifornia Communities Against ToxicsTerry FranckeGeneral Counsel/FounderCalifornians AwareNelson CarrasquilloGeneral CoordinatorCATA - El Comite de Apoyo a los Trabajadores Agricolas/The Farmworkers Support CommitteeWilliam SnapeSenior CounselCenter for Biological DiversityBradley JansenDirectorCenter for Financial Privacy and Human RightsColin O’NeilRegulatory Policy AnalystCenter for Food SafetyLisa GravesExecutive DirectorCenter for Media and DemocracyMichael JacobsonExecutive DirectorCenter for Science in the Public InterestDeb KatzExecutive DirectorCitizens Awareness Network (CAN)

Barbara WarrenExecutive DirectorCitizens Environmental CoalitionJames TurnerChairman of the BoardCitizens for HealthAnne WeismannChief CounselCitizens for Responsibility and Ethics in Washington (CREW)Laura OlahExecutive DirectorCitizens for Safe Water Around Badger (CSWAB)Daniel E. ManvilleDirectorCivil Rights Clinic - Michigan State University Law CollegeDavid DealChief Executive OfficerCommunity IT InnovatorsGreg SmithCo-FounderCommunity ResearchJoni ArendsExecutive DirectorConcerned Citizens for Nuclear SafetyLokesh Vuyyuru, MDFounderConcerned Citizens of PetersburgSofia MartinezPresidentConcerned Citizens of Wagon Mound & Mora CountyDave WerntzScience and Conservation DirectorConservation NorthwestRuth SussweinDeputy Director, National PrioritiesConsumer ActionBob ShavelsonDirectorCook Inlet Keeper

Pratap ChatterjeeExecutive DirectorCorpWatchDonald B. ClarkCumberland Countians for Peace and JusticeBarbra KavanaughExecutive DirectorDC Employment Justice CenterSue UdryDirectorDefending Dissent FoundationDavid CohenExecutive DirectorDepartment for Professional Employees, AFL-CIOBen SmilowitzDirectorDisaster Accountability ProjectStephen BrittlePresidentDon’t Waste ArizonaZena CrenshawCo-AdministratorDrum Majors for TruthMike EwallFounder/DirectorEnergy Justice NetworkChuck BrosciousPresident of the BoardEnvironmental Defense InstituteAntoinette SteinDeputy DirectorEPP-LCA.orgGabe BrunoExecutive DirectorFAA Whistleblowers AllianceJanet KopenhaverFEW Washington RepresentativeFederally Employed Women (FEW)

David B. NolanLegal DirectorFederal Ethics CenterSteve AftergoodGovernment Secrecy ExpertFederation of American ScientistsMarilyn FittermanVice PresidentFeminists for Free ExpressionJoy Towles EzellPresidentFlorida League of Conservation VotersSusie CaploweCoordinatorFlorida League of Conservation Voters Education FundPatricia T. BirnieChairGE Stockholders’ AllianceDon KrausChief Executive DirectorGlobalSolutions.orgTom DevineLegal DirectorGovernment Accountability ProjectAlan MullerExecutive DirectorGreen DelawareCarl RomanelliChairGreen Party of PennsylvaniaKit WoodOwner/FounderGreen Plate CateringKirk DaviesResearch DirectorGreenpeaceLarry PrattExecutive DirectorGun Owners of America

Angela SmithCoordinatorHEAL-ONLINE.ORGRepresentative Gerry PolletExecutive DirectorHeart of America NorthwestScott ArmstrongExecutive DirectorInformation TrustJ.H. Snider. Ph.D.PresidentiSolon.orgJohn MetzExecutive Director/Board ChairmanJustHealthTom FitzGeraldDirectorKentucky Resources Council, IncJoseph B. UehleinBoard President, Founding President and Executive DirectorLabor Network for SustainabilityMichael OstrolenkDirectorLiberty CoalitionGreg MelloExecutive DirectorLos Alamos Study GroupRichard MooreCoordinatorLos Jardines Institute (The Gardens Institute)Mike SmithFounderMarket Air Quality CampaignJanette ParkerDirectorMedical WhistleblowerLewis PatrieRepresentativeMove to Amend of Buncombe County

Salem Al-MarayatiExecutive DirectorMuslim Public Affairs CouncilNancy Hone, DirectorJan Greenfield, WebmasterNAB (Neighbors Against the Burner) in MinnesotaLarry FisherFounderNational Accountant Whistleblower CoalitionGail DunhamExecutive DirectorNational Air Disaster Alliance/FoundationJoan E. Bertin, Esq.Executive DirectorNational Coalition Against CensorshipEileen DannemannDirectorNational Coalition of Organized Women (NCOW)Russell HemenwayPresidentNational Committee for an Effective CongressAndrew JacksonNational Forum on Judicial AccountabilityKenneth F. BuntingExecutive DirectorNational Freedom of Information CoalitionRodney LogalCo-Founder/Executive Board MemberNational Judicial Conduct and Disability Law Project, Inc.Terry O’NeillPresidentNational Organization for WomenPeter SeppExecutive Vice PresidentNational Taxpayers UnionColleen KelleyNational PresidentNational Treasury Employees Union

Stephen M. KohnExecutive DirectorNational Whistleblowers CenterAmy AllinaProgram and Policy DirectorNational Women’s Health NetworkLewis MaltbyPresidentNational Workrights InstituteJames E. WarrenExecutive DirectorNC WARNDonald B. ClarkNetwork for Environmental and Economic Responsibility - United Church of ChristDouglas MeiklejohnExecutive DirectorNew Mexico Environmental Law CenterMiriam GermanNo Nukes NorthwestDavid A. KraftDirectorNuclear Energy Information Service (NEIS)Tim WheelerCo-AdministratorOAK (Organizations Associating for the Kind of Change America Really Needs)Patrice McDermottDirectorOpenTheGovernment.orgPaul LoneyPresidentOregon Wildlife FederationYanna Lambrinidou, PhDPresidentParents for Nontoxic AlternativesPaul MartinOrganizing, Political and PAC DirectorPeace Action and Peace Action Education Fund

Jenny LisakCo-DirectorPennsylvania Alliance for Clean Water and AirMargaret ReevesPesticide Action Network North AmericaGeorge Stokes, Jr.National Program ChairmanPOPULAR (Power Over Poverty Under Laws of America Restored)Evan HendricksEditorPrivacy TimesMatt PrindivilleAssociate DirectorProduct Policy InstituteTim CarpenterNational DirectorProgressive Democrats of AmericaAngela CanterburyDirector of Public PolicyProject On Government OversightKeith WrightsonWorker Safety and Health AdvocatePublic CitizenJeff RuchExecutive DirectorPublic Employees for Environmental Responsibility (PEER)Dr. Diana Post, Executive DirectorMunro Meyersburg, SecretaryRachel Carson Council, Inc.Molly JohnsonArea CoordinatorSan Luis Obispo County Grandmothers for PeaceDebbie SeaseNational Campaign DirectorSierra ClubLinda PetersenFreedom of Information Committee ChairSociety of Professional Journalists

Edward T. HartPresident 2012-13Southeastern Chapter of the American Association of Law LibrariesDon HancockAdministratorSouthwest Research and Information CenterDeirdre SchluneggerChief Executive OfficerSTOP Foodborne IllnessDaphne WyshamCo-DirectorSustainable Energy and Economy ProjectThad GuyerPartnerT.M. Guyer & Ayers & FriendsKen PaffNational OrganizerTeamsters for a Democratic UnionDiane WilsonBoard MemberTexas Injured WorkersEvelynn Brown, J.D., LL.MChief Executive OfficerThe Brown Center for Public Policy aka Whistlewatch.orgJames LandrithFounder/Editor/PublisherThe Multiracial ActivistJohn WhiteheadPresidentThe Rutherford InstituteMindy SpattCommunications DirectorThe Utility Reform NetworkSusan Nevelow MartDirectorThe William A. Wise Law Library - University of Colorado at BoulderRoy GuttermanDirectorTully Center for Free Speech - Syracuse University