Blowing the Whistle on Retaliation

6/11/2015

Homeland Security and Governmental Affairs Committee

Chairman Johnson and Ranking Member Carper: Thank you for allowing NTEU to share its thoughts with you today. As National President of NTEU, I represent over 150,000 federal employees in 31 agencies. I appreciate your interest in shielding whistleblowers in the federal government. This is an important area, and we believe that passage of the Whistleblower Protection Enhancement Act of 2012 helped greatly in achieving that goal. There is more to be done in that area, for instance, allowing jury trials for federal whistleblowers. However, I would like to address the potential harmful impact on whistleblowers of proposals to limit or eliminate due process rights for federal employees.

The MSPB recently issued a lengthy report dispelling the notion that firing in the federal government is too difficult. It is not. There are existing tools available to managers who want to remove poor performers. Due process is not a problem for a manager who uses the tools at his or her disposal. However, the system will not be a fair one if due process is eliminated. The MSPB wrote, “Due process is available for the whistleblower, the employee who belongs to the ‘wrong’ political party, the reservist whose periods of military service are inconvenient to the boss, the scapegoat, and the person who has been misjudged based on faulty information. Due process is a constitutional requirement and a small price to pay to ensure the American people receive a merit-based civil service rather than a corrupt spoils system.”

Limitations on due process rights such as those in HR 1994 will have a chilling effect on the federal workforce, particularly potential whistleblowers. When employees see colleagues removed with no ability for an independent review, they will be reluctant to face a similar fate by blowing the whistle. In a nod to support for whistleblowers, HR 1994 states that if an employee seeks corrective action from the Office of Special Counsel, that person cannot be removed or demoted without the approval of the Office of Special Counsel. This provision appears unworkable – the Special Counsel would have to basically pre-approve the person as a whistleblower, if they file with the Office of Special Counsel. If that is the only independent review available, it seems likely that almost every employee facing removal would file, overwhelming this small agency, and limiting its ability to protect those most in need.

Last year, legislation was introduced to reverse a Federal Circuit decision, and clarify appeal rights for those federal employees in positions designated non-critical sensitive. NTEU, along with other organizations concerned with whistleblower rights in the federal government, will again seek to have similar legislation introduced this Congress, and we hope that those members of this committee who have an interest in whistleblower rights will co-sponsor the bill. In the meantime, it is our hope that GAO will study the impact of that court decision on the federal workforce.

Thank you again for letting us share our views on issues affecting the civil service. We have the best civil service in the world. We’d like to keep it that way.