Open Letter to Trump and Congress on Whistleblowing

An Open Letter to President Donald Trump and Members of Congress

July 26, 2017

The undersigned organizations and corporations write to support the completion of the landmark, 13
year legislative effort to restore credible whistleblower rights for government employees that resulted
in unanimous passage of the Whistleblower Protection Enhancement Act (WPEA) of 2012. While the
law was the fourth unanimous congressional mandate since 1978 for whistleblower rights in principle,
the most serious work remains to be finished. That is because the WPEA left the highest stakes issues
incomplete, pending further study.

We seek your leadership now to expeditiously finish what Congress started in the Whistleblower
Protection Enhancement Act. That means further developing legal rights so they include the critical
reforms listed below. Whistleblower protection is a foundation for government accountability, from
draining bureaucratic swamps to achieving changes in which the public can believe. It does not matter
whether the issue is economic recovery, prescription drug safety, environmental protection,
infrastructure spending, national health insurance, or foreign policy. We need conscientious public
servants willing and able to call attention to waste, fraud and abuse on behalf of the taxpayers.

Unfortunately, every month that passes has very tangible consequences for federal government
whistleblowers, because none have due process for a credible day in court to enforce their free speech
rights. They are limited to administrative hearings at the U.S. Merit Systems Protection Board
(MSPB), which does not have judicial independence, is under bipartisan congressional attack, and
currently the full Board does not even have a sufficient quorum to issue rulings. Since FY 2014, the
full Board only has ruled three times out of 37 final decisions that an employee’s Whistleblower
Protection Act rights were violated, including only one case in 2014 and 2015 combined for illegal
whistleblower retaliation in the entire federal government.

The bottom line is clear. The Whistleblower Protection Enhancement Act will continue to be a source
of false hopes and cynicism until it has the following additional teeth to enforce its mandate:

  • Grant employees the right to a jury trial in federal court;
  • Give whistleblowers the right to challenge retaliatory investigations;
  • Extend employment anti-retaliation rights to shield against all criminal and civil liability;
  • Extend temporary relief to whistleblowers whenever they prove a prima facie case of retaliation;
  • Make permanent normal access to appeals court for whistleblowers to challenge MSPB decisions;
  • Make permanent the WPEA pilot program for each Office of Inspector General (OIG) to have a
    whistleblower ombudsman;
  • Make sensitive job designations a personnel action to lock in protection against retaliation;
  • Require accountability through discipline to prevent unjust retaliation on whistleblowers;
  • Fully protect whistleblower disclosures even before an application for federal employment;
  • Grant the Office of Special Counsel the authority to issue a stay, without MSPB Board approval

These suggestions are the necessary infrastructure so that those who defend the public have a fair
chance to defend themselves.

Sincerely,

 

Thomas Day, President
Alliance for Whistleblowers, Inc.

Stephen A. Sanders, Director
Appalachian Citizens’ Law Center

Yogin Kothari, Washington Representative
Center for Science and Democracy at the
Union of Concerned Scientists

Linda Sherry, Director of National Priorities
Consumer Action

Daniel Schuman, Policy Director
Demand Progress

David Brian Nolan, Director
Federal Ethics Center

Tom Devine, Legal Director
Government Accountability Project

Alex Matthews, National Chair
International Association of Whistleblowers

David J. Marshall, Partner
Katz, Marshall, & Banks LLP

Michael Ostrolenk, President
Liberty Coalition

Deirdre Gilbert, National Director
National Medical Malpractice Advocacy
Association

Christopher Finan, Executive Director
National Coalition Against Censorship

Pete Sepp, President
National Taxpayers Union

Ryan Alexander, President
Taxpayers for Common Sense

Stephen M. Kohn, Executive Director
National Whistleblower Center

Lewis Maltby, President
National Workrights Institute

Lisa Rosenberg, Executive Director
OpenTheGovernment

Deborah C. Peel MD, Founder and President
Patient Privacy Rights

Gabe Rottman,Washington Director
PEN America

Alex Marthews, National Chair
Restore the Fourth

James Landrith, Founder
The Multiracial Activist

John W. Whitehead, President
The Rutherford Institute

Kim Witczak, Co-Founder
Woodymatters

Kit Wood, Director
Green Plate Catering

Susan Harley, Worker Health & Safety Advocate
Public Citizen

David Swanson, Founder
War is a Crime

Marvell D Lavy, Retired Fed Employee
Dept of Veteran Affairs

Liz Hempowicz, Policy Counsel
Project on Government Oversight

Michael W. Macleod Ball, President
American Civil Liberties Union


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