| pp. 16-17 | pp. 18-19 | p. 19 | pp. 26-27 |
Id. at pp. 16-17:
H.R. 25 retains and clarifies the Special Counsel's role in enforcing the Hatch Act, the Freedom of Information Act, and Equal Employment Opportunity law.
It creates an individual right of action, so that employees who are the victims of prohibited personnel practices can seek stays and corrective action directly from the MSPB, without involvement of the OSC.
The bill broadens the venue for appeals from MSPB decisions to include the court of appeals where the individual resides as well as the Court of Appeals for the Federal Circuit. It expands the definition of prohibited personnel practice to ensure that cooperating with an Inspector General or the Special Counsel, testifying in a proceeding, and failing to obey an order to disobey a law are protected activities.
...The bill specifies that the remedies provided for prohibited personnel practices are not intended to extinguish certain other rights an employee might have.
Id. at pp. 18-19 [note that H.Rpt. 99-859 (Sept. 22, 1986) at pp. 16-17 is identical, although omitting a few citations]:
From the beginning, the whistleblower protections in the CSRA have had broad bipartisan support. The support officially continues during the present administration. In an April 16, 1981 statement, President Reagan said, "Federal employees or private citizens who wish to report incidences of illegal or wasteful activities are not only encouraged to do so but will be guaranteed confidentiality and protected against reprisals . . . . They must be assured that when the 'blow the whistle' they will be protected, and their information properly investigated (Public Papers of the Presidents of the United States, 1981, p. 359, Government Printing Office, 1982).
The reason for this bipartisan support is that whistleblower protection is essential if Government employees are to adequately serve the public. As the Senate Report on the Civil Service Reform Act points out,
Protecting employees who disclose government illegality, waste and corruption is a major step toward a more effective civil service. In the vast Federal bureaucracy it is not difficult to conceal wrongdoing provided that no one summons the courage to disclose the truth. Whenever misdeeds take place in a Federal agency, there are employees who know that it has occurred, and who are outraged by it. What is needed is a means to assure them that they will not suffer if they help uncover and correct administrative abuses. (S.Rep.No. 95-969, 95th Cong., 2d Sess., 8 (1978)[...]
There are strong disincentives against employees disclosing information which tends to embarrass Federal managers. As the Senate report on whistleblowing concluded,
The code of silence thwarts top management's ability to effectively manage and actually removes the burden of accountability from their shoulders. Agency heads operate without full knowledge of their own agency's activities. Fear of reprisal renders intra-agency communication a sham, and compromises not only the employee, management, and the Code of Ethics, but also the Constitutional function of congressional oversight itself. (The Whistleblowers, p. 49)
As noted in the House Committee report, the CSRA created the Office of Special Counsel as the first legislatively mandated office in history "designed to ensure that employees are fairly protected." H.Rept. No. 95-1403. 95th Cong., 2d Sess., 6 (1978).)
Eight years later, the committee found that the Office of Special Counsel-the agency established to be the whistleblowers' advocate-has turned down more than 99 percent of whistleblower cases brought to it without initiating disciplinary or corrective action. For a five-year period, the Special Counsel failed to seek corrective action to restore the job of any whistleblower.
Id. at p. 19:
Since the establishment of the OSC, one Special Counsel has taught a course for Federal managers on how to fire whistleblowers. Another has expressed disdain for whistleblowers by referring to them as "malcontents" (Whistleblower Protection: Hearings Before the Subcomm. On Civil Service of the House Comm. On Post Office and Civil Service, 99th Cong., 1st Sess., 259 (1985)[...] and "informants" (Whistleblower Protection Act of 1986: Hearings on H.R. 4033 Before the Subcomm. On Civil Service of the House Comm. On Post Office and Civil Service, 99th Cong., 2d Sess., 10 (1986) [...] and likening them to bag ladies and mental health patients (1985 House Hearings, p. 253). One Special Counsel even warned would-be whistleblowers to keep quiet or they would get their heads blown off (Washington Post, July 12, 1984, at A17, col. 1).
Id. at pp. 26-27:
In other cases, the Board has carved exceptions to the protection afforded by the statute. In one case, the MSPB ruled that otherwise protected speech, if coupled with a request for agency action for the benefit of the employee disclosing the information, loses its protection. (In re Berube, 30 MSPB 581 (1986)) In another case, the MSPB questioned whether disclosures made through the chain of command constituted protected activity. ) See In re Tariela, 1 MSPB 119 (1979)).
Perhaps the most crippling decision in this area has come in the Gerlach v. FTC (8 MSPB 599 (1981)). The MSPB expanded on the Supreme Court's decision in Mt. Healthy City School District v. Doyle, 429 U.S. 274 (1977) and held that, even if retaliation for protected disclosure was the motivating factor in a personnel action, if the action can be upheld on other, legitimate grounds, the employee is not entitled to protection.
... The Whistleblower Protection Act addresses many of the legal hurdles imposed by the MSPB and the Federal Circuit. It permits employees to bring their own actions and not be subject to the discretion of the Special Counsel. The bill provides a lower burden of proof for whistleblower cases, substantial evidence, than exists for other [p. 27] prohibited personnel practices and for most administrative proceedings. This lesser burden of proof should overcome many of the strict decisions of the MSPB and should make it possible for a litigant to prove retaliatory motive in appropriate cases. In his testimony before the Subcommittee on Civil Service (1987 House Hearings, p. 129-130), Robert Vaughn explained the importance of this change:
Retaliation for whistleblowing is usually difficult to prove . . . . Whether or not retaliation has occurred is a complex determination that involves matter of judgment and conflicting testimony. Federal officials have an incentive to obscure the role that protected disclosures played in a personnel action. Moreover, the agency rather than the employee is likely to be in possession of the evidence which can establish whether or not retaliation has occurred. Therefore, the justifications for the adoption of the substantial evidence standard in regard to whistleblowers are . . . strong. . . .