S. 372, the Whistleblower Protection Enhancement Act of 2009

6/11/2009

House Homeland Security and Governmental Affairs Committe Subcommittee on Oversight of Government Management, the Federal Workforce and the District of Columbia

Chairman Akaka and other members of this Committee, I thank you for introducing this important legislation providing significant improvements to Chapter 23 of Title 5, U. S. Code, which encompasses whistleblower protections. I commend you for holding this important hearing today.

Whistleblower protection enhancements are particularly important to the National Treasury Employees Union because we represent several thousand Transportation Security Officers (TSOs) at the Transportation Security Administration. TSOs have very limited whistleblower protection, and it is not guaranteed by law, yet they are charged with the frontline security of the nation’s travelers. Federal employees with such important responsibilities need adequate protections to feel safe enough to report problems that could affect our security. We thank you for including them in your bill.

As you know, whistleblowers perform a vital function in highlighting instances of fraud, waste, abuse, and mismanagement in the federal government. Unfortunately, protections for this group have been damaged by hostile administrative review and limited judicial review. Although S. 372 does much to strengthen whistleblower protection, it does not contain the right to jury trials. In the past four years, several laws have been passed that provide jury trials in whistleblower cases to trucking and cross- country bus carrier workers, to railroad workers, to defense contractors, and to state and local workers. Just about the only group of people for whom jury trials do not apply are federal workers. There is really no chance for justice in a whistleblower case without full access to court. Since 2000, the Merit Systems Protection Board has ruled 3-53 against whistleblowers. The Federal Circuit Court of Appeals, the only court now available, has an even worse record.

Some arguments have been raised that federal managers might not be able to exercise their supervisory oversight if federal employees have access to jury trials. Filing a whistleblower complaint does not protect a federal employee from a legitimate action by a manager. Good managers keep records of employee performance, and an employee can be fired for any number of legitimate reasons. If the reason for firing is not legitimate, why shouldn’t that action be protected? Government works best when people are free to expose destructive elements in the system. We all benefit from this.

Congressman Chris Van Hollen wisely recognized that, with all the money being expended for stimulus and recovery for this country, enhanced whistleblower protections are needed to uncover any fraud, waste, or abuse in the deliverance of that package. That is why he attached the House whistleblower language to the stimulus bill in the House of Representatives. Unfortunately, the whistleblower language was dropped from the bill before final passage, but it is critically important to enact these provisions quickly. The money is still being expended, and earlier this week, President Obama indicated that he would speed up the pace on the release of funds. I look forward to working with the subcommittee and full committee to produce a bill that will, finally, extend whistleblower rights to TSOs and strengthen whistleblower protections in Title 5.

I thank the Committee for this opportunity to present our union’s views.