Good News for the Whistleblowers

By Joe Davidson
Thursday, July 30, 2009

With important differences between the House and Senate, it was uncertain, not too long ago, where legislation to improve the lot of federal whistleblowers was going.

But that began to change several weeks ago, when the White House became more directly involved in the move to approve the Whistleblower Protection Enhancement Act of 2009.

About 10 years of work paid off Wednesday when the Senate Committee on Homeland Security and Governmental Affairs advanced the legislation.

Committee members were able to quickly pass the bill, on a unanimous voice vote, because congressional staffers, administration officials and whistleblower advocates had worked in marathon sessions over the last few days to reach a compromise.

Leading up to that were meetings, conference calls and other discussions that gained steam in May. One administration official who refused to be quoted by name described "long, painful sessions" at the White House where whistleblowers described how they had been punished by the government they sought to serve.

The White House's lack of clarity about its position on the bill earlier had frustrated whistleblower advocates, but the Obama administration began what amounted to shuttle diplomacy among the various parties -- an effort led by Norm Eisen, President Obama's special counsel for ethics and government reform. The resulting bill left those involved feeling as if they gained more than they gave up.

"There were genuine concerns that people worked through," said Danielle Brian, executive director of the Project on Government Oversight, which advocates for whistleblowers. "It's the way you want government to work."

You don't often hear comments like that from those who've been discouraged by official Washington over the years. Particularly not from an advocate for people who make a point of noting what government does wrong.

Brian and others described a swirl of activity in the White House, on Capitol Hill and in advocacy offices that reached a peak this week. The long negotiations culminated with a meeting between administration and Senate staffers that lasted until the wee hours Tuesday in the offices of Sen. Daniel K. Akaka (D-Hawaii), chairman of the panel's subcommittee that covers federal workforce issues.

"It was a genuine product of a lot of effort," Brian said. "By [Tuesday] night, people were starting to sleep again."

The resulting legislation would significantly strengthen protections for federal employees who point out waste, fraud and abuse in government.

One critical measure of protection whistleblowers sought would allow jury trials for employees who sue agencies, alleging retaliation for exposing improper policies or actions. Until the White House brokered a deal, that had been a seemingly intractable difference between the House and Senate, which would not accept the jury-trial remedy.

The measure advanced by the Senate committee allows for jury trials, albeit with a compromise that calls for the provision to expire in five years. Despite that sunset condition, "this was a conceptual breakthrough for the first time on that cornerstone," said Tom Devine, a whistleblower advocate and legal director of the Government Accountability Project.

Whistleblowers were not able to arrange protections for national security workers in the Senate bill. Their advocates plan to push for that when the House considers whistleblowing legislation, probably after its August recess.

All the activity surrounding the legislation overshadowed a measure the committee passed to improve the way the federal government hires people.

The Federal Hiring Process Improvement Act calls on agencies to develop clear and concise job announcements, written in plain language. That would be a welcome relief from the dense, almost unintelligible announcements produced by some departments.

The dreaded essays on their knowledge, skills and abilities that applicants have to write would be replaced by cover letters and résumés. Agencies would have to give applicants timely notice of their status in the hiring process. Job seekers have complained that they often don't know where they stand.

A major advance would require agencies to take no more than 80 days to make a job offer from the time a manager decides to fill a vacancy. It's not unusual for applicants to complain about hiring procedures that take six months to complete. By then, applicants may have found other work, particularly if they have not been kept informed during the process.

"Federal recruitment and hiring systems are broken," Akaka said. "It is crucial that the federal government improve the cumbersome, slow application process to maximize its ability to attract and hire talented individuals to public service."

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