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New Administration Seems Friendlier to Whistleblowers

By Joe Davidson
Thursday, January 22, 2009

"And the way to make government accountable is make it transparent so that the American people can know exactly what decisions are being made, how they're being made and whether their interests are being well-served."

-- Barack Obama

These words from President Obama yesterday, his first full day in office, are particularly welcome to those who blow the whistle on government waste, fraud and abuse.

They want him to strengthen transparency by making it safer for federal employees and contractors to reveal policies and practices that may run counter to the public interest.

"It's very encouraging that the Obama administration is making improved government transparency such a high priority, to put out a strong policy statement on the first day of the administration," said Sean Moulton, director of federal information policy at OMB Watch, a nonprofit government-watchdog organization.

By issuing memos to the heads of executive departments and agencies on the Freedom of Information Act and transparency and open government, the new boss in chief is sending a strong signal to federal employees that his administration places high value on openness and he wants them to do the same.

That's a comfort to whistleblowers and their advocates who believe current whistleblower protection laws provide too little protection and that the atmosphere under the Bush administration did not encourage federal workers and contractors to reveal problems.

The first sentence in the memo on transparency and open government makes Obama's direction clear: "My administration is committed to creating an unprecedented level of openness in government."

For federal employees, that could lead to a change in a culture that says no one was ever promoted for releasing information, but you can get in trouble for doing so, Moulton said.

"Trying to change that culture of better safe than sorry . . . is very difficult," he added.

Moulton hopes Obama's new emphasis on openness will turn that upside down. "Make it an incentive," he suggested, "to be more open, to feel more comfortable that disclosure not only won't get you in trouble, but it could get you a better performance review."

A group of individuals and organizations, calling themselves the Right to Know Community, have urged Obama to create a Window on Government Award to recognize agencies and employees who make government more transparent.

Toward that goal of greater openness, a different group, the Make It Safe Coalition -- 50 organizations seeking to protect whistleblower rights -- has asked the new administration to consider rehiring whistleblowers who were dismissed under the Bush administration.

In a memo last week to what was then the Obama transition team, the coalition asked the new president to issue an executive order "to review and resurrect federal positions for Bush administration whistleblowers who lost their jobs because they sought to defend the public."

Tom Devine, legal director of the Government Accountability Project, which coordinates the coalition's work, said the proposed order would help determine "how many professional bodies were buried during the last administration," then work to get them reinstated.

The Make It Safe Coalition memo, which was written by Devine, also urged Obama to issue a directive saying "there will be zero tolerance for retaliation against those who exercise their duty to disclose" any fraud, waste or abuse they witness.

That would mean, the memo says, that the Obama administration would "hold bureaucratic bullies who enforce secrecy through harassment strictly accountable through disciplinary action" and provide needed training.

While whistleblower groups are in general agreement, they are divided over a lawsuit that the ACLU, OMB Watch and the Government Accountability Project have filed in federal court, seeking to prevent the government from enforcing provisions of the False Claims Act. It covers whistleblowers who are employees of government contractors.

The provisions keep complaints under seal and prohibit those who file the complaints from discussing them. But those provisions "can protect a whistleblower from retaliation," said Stephen M. Kohn, president of the National Whistleblower Center.

Kohn and Devine agree that some level of secrecy is useful in protecting whistleblowers. But Devine says the original purpose of the law "has been left in the dust" and it has degenerated into a gag order.

Correction

Correcting information reported by the Federal Diary on Jan. 13, the National Labor Relations Board says there are five Asian American, two Latino and two black lawyers on the board side (as opposed to the general counsel staff) of the agency. No black lawyer who left the NLRB was evaluated under the new appraisal system used by the board side. I hate errors, and I'm sorry for these.

Contact Joe Davidson at federaldiary@washpost.com.

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