To say it was heartwarming would be a stretch, but it was good to see the bipartisan support this week on behalf of federal whistleblowers from a congressional panel where comity too often loses to contention.
Take a look at the hearing video. You'll see that by the end of the hearing, both Rep. Blake Farenthold (R-Tex.), the subcommittee's chairman, and Rep. Stephen F. Lynch (Mass.), its top Democrat, seemed pretty disgusted with the way Uncle Sam can treat federal employees who report waste, fraud and abuse.
For trying to right wrongheaded policies, some whistleblowers have suffered retaliation, reprisals and retribution, even to the point of being drummed out of the federal service.
After listening to Robert MacLean, a former air marshal, and Robert Van Boven, a former doctor at the Department of Veterans Affairs, Lynch said their experiences are “a disgrace to us as federal employers.”
Moments later, a head-shaking Farenthold concurred: “I’m going to echo what Mr. Lynch said, that it is a disgrace, and I hope you take away from this that members of this subcommittee I think unanimously are committed to making the situation better, and we’re going to keep working on it.”
There certainly is work to be done.
Congress passed the Whistleblower Protection Enhancement Act in 2012, after more than a decade of pushing by employee advocates, but its protection is not as strong as it needs to be.
Tom Devine, legal director of the Government Accountability Project, listed several areas of “unfinished business from the WPEA” where work is needed to “achieve the act’s promise.”
One that drew considerable attention is the “sensitive jobs loophole,” which Devine said allows the government “uncontrolled power to designate any position as ‘sensitive.’ ” That designation prevents employees from appealing personnel actions against them to the Merit Systems Protection Board.
A case in point involved a civilian grocery inventory clerk in a store at the Gunter Annex to Maxwell Air Force Base in Alabama. He was demoted because of personal debt issues.
The regular avenue of appeal was denied because of his “sensitive” job — keeping store shelves stocked. He had no access to classified information.
A federal appeals court ruling, which the Supreme Court declined to review, overturned a MSPB decision and permits the government essentially unfettered power to classify employees as sensitive. That ruling “created the most significant threat to the civil service merit system in our lifetime,” Devine said.
Del. Eleanor Holmes Norton (D-D.C.) is a sponsor of bipartisan legislation that would overturn the court ruling. The ruling, she warned, “could wipe out altogether” the Whistleblower Protection Enhancement Act — “a frightening circumstance,” she said. Noting Democratic and Republican backing of the bill in the House and Senate, Norton added, “This troubles the Congress itself.”
The full committee’s ranking Democrat, Rep. Elijah E. Cummings (Md.), is among the bill’s co-sponsors.
Susan Tsui Grundmann, chairwoman of the MSPB, said the government needs a “culture change” to better appreciate and deal with whistleblowers.
Demonstrating the hearing’s cooperative spirit, the full committee’s chairman, Rep. Darrell Issa (R-Calif.), began his questioning by saying that this is “one of those bipartisan things that brings together both sides of the dais.”
He continued with a warm compliment to Carolyn Lerner, head of the Office of Special Counsel, which deals with whistleblower issues. Issa called Lerner, an Obama administration appointee, "a tremendous champion. . . I appreciate the work that you have done."
The committee, which he said is “passionate” about whistleblower issues, will attempt to draft legislation to strengthen whistleblower protections during the congressional lame duck session after the November elections, Issa said.
MacLean and Van Boven had suggestions, including strengthening the MSPB and the OSC.
After going through official channels to no avail in 2003, MacLean told the media about an unclassified Transportation Security Administration decision to cancel air marshal assignments on long-distance flights requiring overnight stays. TSA later retroactively classified that decision, MacLean said, and fired him in 2006 “for breaching national security due to ‘unauthorized disclosure of sensitive security information.’ ”
He has done door-to-door sales to survive since.
Van Boven said his 2007 exposure of suspected financial waste and irregularities at a VA facility in Austin led to intimidation, retaliation and efforts to suppress his disclosures. He was terminated in 2009.
The TSA and VA would not comment on the cases.
Both men had warnings for potential whistleblowers.
Van Boven said whistleblowers "have to be masochistic or . . . want to have financial ruin . . . and a probable divorce."
MacLean had similar thoughts, but he ended on a hopeful note.
“Your whole life is going to change,” he said. “A lot of your friends at work are never going to talk to you again. You could lose your job. It’s a huge, huge risk. Prepare for the absolute worst.”
Would he do it again?
“Absolutely.”
Twitter: @JoeDavidsonWP
Previous columns by Joe Davidson are available at wapo.st/JoeDavidson.
