Obama Broken Promise to Federal Whistleblowers-WPEA in Hands of Lamar Smith-Americans Will Pay the Price
11:12, September 18, 2012 by Evelynn Brown, J.D., LL.M
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When Senator Obama was campaigning for President he made a promise to federal employees. He promised to protect them from whistleblower retaliation. He said they were often the best source of information on waste, fraud, and abuse in government. The Senator called federal whistleblowers courageous and patriotic, saving lives and tax payer dollars.

The old Obama said federal whistleblowers should be viewed as the watchdogs of wrongdoing and partners in performance, promising to strengthen whistleblower protections for federal employees and that he’d make sure federal agencies would expedite the processes of reviewing claims.

One big promise was full court access to federal employee whistleblower retaliation claims and full due process of law. Federal employees would be able to climb out of the rabbit hole at the Merit System Protection Board (MSPB) with an echo chamber of the Federal Circuit that rubber stamps biased decisions. The latter holds a monopoly for appeals. Despite clear violations of due process of law at the MSPB and lack of enforcement protections for federal whistleblowers under the Whistleblower Protection Act (WPA), the White House has done nothing to protect whistleblowers and break up the monopoly.

These days, the only thing our public interest federal watchdogs are doing is seeing their previously established whistleblower protections under the Whistleblower Protection Act (WPA) and No Fear Act disappear since President Obama has left the fledgling Whistleblower Protection Enhancement Act (WPEA) in the hands of Republican leaders of the Senate and House. The same party that Obama once said “stifled” federal whistleblowers under the Bush administration are now silencing more federal whistleblowers.

Recently the Government Accountability Project (GAP) announced to a group of whistleblower rights advocates and members of the Make It Safe Campaign & Coalition that Lamar Smith (R-TX) House Judiciary Committee Chair has continued to oppose jury trials and all circuits review for federal employees. In fact, Tom Devine of GAP stated that Smith told him that if a provision in the WPEA were to include jury trials, he’d “kill the bill.” Makes on wonder how someone who constantly talks about the Constitution from the bully pulpit and sits as Chair on the Judiciary Committee does not believe jury trials are essential to justice for all American citizens. judiciary.house.gov
Whistlewatch.org attempted to confirm that Smith made this statement to GAP and are awaiting a response. If true, Smith is the obstacle to passage of the WPEA. In essence what Smith is stating is that federal employees deserve less employment law rights and whistleblower protections than industry counterparts. Since federal employees work for the public, they must be protected from whistleblower retaliation when they report fraud, waste, abuse, mismanagement and dangers to public health and safety. And they deserve to have the right to go to a real court of law, where they live to file a lawsuit and be heard by a jury of their peers. Otherwise, they are a lower class of citizens with a lessor set of constitutional due process of law rights.

Administrative law quagmires at the MSPB have shown repeatedly that federal employees are not being provided basic constitutional rights such as an ability to receive a stay or injunction to stop further harm, evidence discovery and a right to call witnesses. Federal employees have a right to a hearing on the merits of any agency disciplinary decision.

However, MSPB administrative law judges will not schedule the hearing in order, after an appeal has been filed in order to give a federal agency time to build a case of removal of the federal employee from service. Also, MSPB is approving forced settlement agreements that are in violation of law which include a bar on future rights under The Age Discrimination in Employment Act (ADEA), such as re-applying to federal service with gag orders not to report the underlying violations of law to Office of Special Counsel (OSC), members of Congress or federal regulators.

Seems the Obama administration has placed a choke chain on the federal watchdogs (see Drake case below) who were already on a short leash, held by corrupt agency officials, where is the promised help to ease harm to federal whistleblowers? Quite frankly, there isn’t any help coming. The promise Obama made to federal whistleblowers is broken. That broken promise came at a heavy price because it is the public who suffers when federal employees have nowhere to blow the whistle. That’s a dangerous situation for the American public who must rely on federal agencies to police industry and watch over their tax payer dollars and interests on food integrity, drug safety, clean water, financial markets, national security…

If federal employees cannot protect themselves, they can’t protect the public. A look at the Thomas Drake case is like reading a spy novel. Except for one thing, Drake was no spy or traitor. He was an exemplary employee and honorable man who blew the whistle on government waste. His reward for honoring his duty as a federal employee was to have his federal service career destroyed while the government spent more millions of tax payer money wastefully on a loser case. There has been no thanks to Drake for his service or accountability of the wasteful spending of tax payer money on a failed computer system nor has any federal management official been disciplined. Gee, I seem to remember something in the No Fear Act that agencies had to account for their spending when they lost a case…Section 203. Is Congress reading those reports? Guess not. Probably filed under Promises broken to federal employees.

Open Letter explaining the need to strengthen the WPEA can be found below.

An Open Letter to the U.S. Congress from Federal Whistleblowers: StrengthenWhistleblower and Taxpayer Protections by Improving the Whistleblower Protection Enhancement Act of 2012