FBI Whistleblowers to Receive Protections for Rooting out Waste, Fraud and Abuse
WASHINGTON – Senate Judiciary Committee Chairman Chuck Grassley and long-time advocate for whistleblowers said that a modified version of his FBI Whistleblower Protection Enhancement Act cleared the Senate today and is now headed to the President for signature.
“This is a really important provision for the patriotic men and women at the FBI who have gone without the whistleblower protections given to other federal employees for far too long. The current process is vague, confusing and lacks common sense, and it often puts people in hot water for no legitimate reason,” Grassley said. “The protections in this bill ensure a logical reporting requirement which allows more cases to be heard on the merits instead of being senselessly dismissed because an FBI employee logically reported wrongdoing to their supervisor.”
The modified bill that cleared the Senate protects from reprisal FBI whistleblowers who disclose wrongdoing to their direct supervisors. Currently, FBI employees are not protected when they disclose wrongdoing to their supervisors. Instead, Justice Department regulations require disclosures to be made to a limited group of senior officials even though FBI policy encourages employees to report to supervisors. As a result, FBI whistleblowers often make their initial disclosure to a supervisor, but have no legal protection in the event of retaliation.
Grassley said that he will pursue the remaining provisions of the FBI Whistleblower Protection Enhancement Act in the next Congress.
Grassley is a long-time advocate for whistleblowers. He’s the founder of the Whistleblower Protection Caucus which focuses on raising awareness of the important role whistleblowers play in bringing about accountability in government and the workplace, and the need to protect them from retaliation when they disclose fraud or misconduct.
Grassley also authored changes in 1986 to the President Lincoln-era federal False Claims Act to empower private-sector whistleblowers. Since the 1986 amendments were signed into law, the False Claims Act has brought back tens of billions of dollars to the federal treasury, and has deterred even more fraudulent activity. Grassley has since gotten signed into law provisions to make violations of the anti-kickback statute a violation of the False Claims Act. And also amended the False Claims Act to ease the “public disclosure” bar and allow the government to oppose dismissal even if there was previous public disclosure, as well as relax requirements for “original source” exception to the public disclosure bar.
Grassley is the co-author of the 1989 whistleblower law designed to protect federal whistleblowers and the 2012 update to the law. He also authored the 2006 overhaul of the IRS whistleblower program to fight major tax fraud. Grassley worked to establish the whistleblower protections for private sector employees as part of the Sarbanes-Oxley reform effort, and helped write legislation to create the SEC whistleblower office. In 2009, in coordination with Senator Patrick Leahy, Grassley worked to pass legislation to shore up whistleblower protections in the False Claims Act that had been eroded by the courts after years of litigation by defense and healthcare contractors.
Grassley also got signed into permanent law an anti-gag measure that says no money can be used by federal agencies to enforce any nondisclosure agreement that interferes with the right of individuals to provide information to Congress. Earlier this year, Grassley and Leahy authored legislative language that was signed into law to ensure that companies cannot intimidate whistleblowers by threatening them with lawsuits for trade secret theft.
Statement for the Senate Record of Senator Chuck Grassley
S. 2390, FBI Whistleblower Protection Enhancement Act, as amended
Saturday, December 10, 2016
For a long time, my friend Senator Leahy and I have worked hard to improve protections for FBI employees who report waste, fraud, and abuse.
In March 2015, we held a hearing in the Judiciary Committee examining the FBI whistleblower program. That hearing addressed Department of Justice and Government Accountability Office reviews of the program. Both of those reviews found significant problems.
The biggest problem is a longstanding loophole the Department created in its interpretation of the statutory protections for FBI whistleblowers. The Department’s rules only protect FBI employees who experience reprisal after they report wrongdoing to a handful of offices or individuals. But those rules do not recognize that almost all whistleblowers first report wrongdoing to their immediate supervisor. Then they go up the chain of command.
It’s just human nature that when you spot a problem at work, you tell your boss. FBI policy even encourages employees to report through their chain of command. Yet, under the current rules, those same employees have no remedy if they suffer reprisal for disclosing waste, fraud, or abuse to their boss.
According to the Government Accountability Office, in five years, roughly one third of FBI reprisal complaints were dismissed because the employee made the report to the “wrong person” in their management chain. It doesn’t matter if the original disclosure uncovered actual wrongdoing. If the employee who reported it experiences retaliation, there is nothing they can do about it. Worse, FBI employees are the only employees in the federal government without these protections.
Even whistleblowers in the Intelligence Community, thanks to the President’s Policy Directive number 19, are protected when they make disclosures to their supervisors. But the employees of the FBI have been left behind.
The problem stems from an apparent compromise Congress reached in 1978 as part of the Civil Service Reform Act. There were some in the Congress at the time that wanted to exempt the FBI completely from important whistleblower protections. But this was 1978, only a few years after J. Edgar Hoover’s reign over the FBI ended. It had become very clear in those years that the FBI was not immune to abuses of power.
So, the FBI got its own provision in the US Code, separate from the protections that apply to most other non-military federal employees. The point was to provide protections similar to those available for other federal employees. But, when the Department wrote its rules, it strictly limited the number of people FBI employees could report to. The Department said that it should not protect disclosures to supervisors because that would mean the same people who are prohibited from engaging in reprisal—supervisors—would receive disclosures.
But that was not the intent.
The whole point of the whistleblower protection laws is to protect the whistleblower from the person who is going to retaliate against them for disclosing waste, fraud, or abuse. That is typically the person who receives their disclosures—which is almost always a direct supervisor.
But the Department’s current rules leave those employees out in the cold. The result?
As I said, roughly one third of FBI employee reprisal complaints have been dismissed because they did what FBI policy tells them to do. They reported to their chain of command. This result is absurd, and not what Congress intended. Congress wanted to encourage disclosures of wrongdoing so that problems could be more easily identified and then fixed. How can you fix problems if your employees do not have a logical, safe way to raise them?
The answer is that you can’t.
Moreover, there are many other federal law enforcement agencies that function under the same whistleblower protections as non-law enforcement agencies. There is no logical reason for the FBI to have unique, separate, and inadequate standards for protecting whistleblower disclosures.
So, I and Senator Leahy drafted the FBI Whistleblower Protection Enhancement Act. The bill amends the FBI whistleblower statute to clarify, once and for all, that FBI whistleblowers are protected for disclosing waste, fraud, and abuse in their chain of command.
This change was recommended by the Government Accountability Office in its 2015 review. It is also supported by the Office of Special Counsel, the Department’s Office of the Inspector General, and numerous good government and whistleblower advocacy groups. Even FBI Director James Comey and Attorney General Loretta Lynch have both testified before the Judiciary Committee that disclosures to supervisors should be protected.
Now, we passed a version of this bill out of the Judiciary Committee unanimously. That version would have made additional meaningful changes to the FBI whistleblower program. The bill adopted by the Committee would also have addressed the other problems identified in the Justice Department report and the Government Accountability Office study.
Most importantly, the bill that passed the Committee would have dealt with the lengthy delays in the Department’s internal investigation and adjudication process.
We also wanted to provide FBI whistleblowers with some relief when the Inspector General finds in their favor. That way, FBI would be encouraged to settle cases instead of wasting taxpayer money defending reprisal.
We wanted to require the Department to make its decisions on these cases publicly available.
That way, the FBI would not be the only party in these cases with access to case precedent.
We also wanted to be sure that FBI employees had opportunities for a fair and independent hearing, and the ability to seek relief from a court of appeals. In that case, at least someone outside the Department would be able to hold the Department and the FBI accountable.
But, behind the scenes, the FBI and the Justice Department objected to these provisions—although they never provided any official written comment on the bill. They claimed our reforms would jeopardize national security.
But they never, ever said how.
In nearly a year, they could not produce one single specific, coherent concern with the process that we developed. They had no response to the fact that classified information has not been an issue in FBI cases:
• Reprisal complaints generally can be considered without ever addressing classified information;
• The Department’s own rules tell employees not to file classified information as part of the whistleblower program; and
• There has never been an FBI case that required the consideration of classified information.
The FBI even initially objected to the provision recommended by GAO that would protect disclosures to supervisors. The FBI claimed that their employees’ work was too sensitive. But that claim holds no water because employees in the Intelligence Community are protected for reporting wrongdoing to their supervisors.
Now, we have waited nearly a year for constructive, good faith feedback on our other reforms, but have received none. And unfortunately, we have not been able to reach a unanimous agreement on those issues this year or obtain time for debate and a vote on the floor.
I am very disappointed.
However, we still found a way forward on one key provision of this legislation. FBI employees have waited long enough to be protected for the same disclosures as everyone else in the federal government. Year after year, decade after decade, so many FBI employees have been retaliated against with no legal recourse.
Well, that ends now.
We can keep working together on other, much-needed reforms, and we will. We are not finished with the great work left to do to improve FBI whistleblower protections. Other issues identified by the Government Accountability Office and by the Justice Department itself still need to be addressed. But with the passage of the amendment to our bill, FBI employees will finally have a remedy if they are retaliated against for reporting waste, fraud, and abuse to their supervisors. Just like every other federal employee in the vast American bureaucracy.
I am thankful for the support and hard work of Senator Leahy on these issues for so many years, and for working so closely with me on this legislation. I also am very thankful for Representative Chaffetz’s leadership on this issue in the House. I know that he and Representatives Jeffries and Cummings have been great advocates for this change.
Most of all, I am grateful for the FBI whistleblowers I have worked with over the years. Folks like Fred Whitehurst, Jane Turner, Michael German, Robert Kobus, Darin Jones, and so many more.
This would never have come to pass without your leadership, persistence, and personal sacrifice.
It has been a long road, but it has been a privilege to travel it with you.
We are not done yet.
But now, we are one very big step closer.