“Whistleblowers play a critical role in keeping our government efficient and honest, yet they also risk retaliation from their employers, sometimes being demoted, reassigned, or fired as a result of their actions,” says the report issued in support of the FBI Whistleblower Protection Enhancement Act.
The legislation seeks to expand reporting opportunities for whistleblowers, improve what the committee calls “the lengthy and opaque adjudication process” and strengthen protection for employees who expose agency waste, fraud and abuse. They need protection from managers seeking revenge.
The uninitiated can be excused if they think managers always welcome those disclosures. While Uncle Sam talks a good game about combating waste, fraud and abuse in his operations, stories about management reprisals against those who report internal wrongdoing abound across the government. The situation at the FBI is compounded because its limited list of appropriate and protected places for employees to report issues includes the attorney general, but not their own supervisors. In a rational world, they would be the first to be told.
“This has left protections for FBI whistleblowers inferior to those of other Executive Branch employees …” the report said. “Unlike all other Executive Branch employees, including employees in the intelligence communit … FBI employees enjoy no legal protection for making reports of wrongdoing to supervisors or others in their chain of command.”
The legislation would correct that.
The FBI apparently is fine with including supervisors, now. The report says FBI Director James Comey, Attorney General Loretta Lynch and the Department of Justice Inspector General “endorsed providing protections for employees who report wrongdoing to their supervisor.”
But that wasn’t the story when the Government Accountability Office (GAO) did a report last year on the need to improve retaliation complaint procedures. It found the FBI did not include supervisors on the list in part because of “concerns about the additional resources and time needed to handle a possible increase in complaints if DOJ added supervisors.”
At the same time, the agency encouraged whistleblower complaints to supervisors, according to the bill’s bipartisan sponsors, Sens. Chuck Grassley (R-Iowa) and Patrick Leahy (Vt.), the chairman and ranking Democrat, respectively, of the Judiciary Committee.
“FBI employees have long faced vague and confusing rules for how to properly disclose problems because of the FBI’s unusual exemption from the normal whistleblower protections for other federal employees,” Grassley said. “The confusion and lack of an independent process has landed too many people in hot water for simply telling the truth.”
One of those employees is Darin Jones. He said he was fired from his supervisory position after his whistleblower disclosures on improper procurement and other issues. He fought his termination, but because his disclosures were to his supervisor and not to one of the nine individuals or offices on the approved list, Jones was not protected from management retribution. His appeal continues and he hopes this new legislation will benefit his case, which has dragged on for almost four years.
The report “plainly and unambiguously provides Congress’s intent that disclosures made to supervisors are to be protected,” Jones said. He pointed to report language that says the legislation, upon enactment, “applies to pending complaints.” That should include his.
The FBI would not comment on the legislation or individual whistleblowers. “The FBI will not tolerate reprisals or intimidation by any FBI employee against those who make protected disclosures, nor tolerate attempts to prevent employees from making such disclosures,” an agency statement said.
In an earlier interview, Grassley said Jones is “a perfect example of what’s wrong with the FBI whistleblower regulations and the fact that we need legislation so that FBI [workforce] is protected just like every other whistleblower in the executive branch of government.”
Members of that workforce now get little protection, if statistics in the GAO report are any indication. If they get any, it can take a long time.
GAO reviewed all 62 complaints about retaliation against whistleblowers closed from 2009 through 2013 “and found that the Department ruled in favor of the whistleblower in just three instances,” less than 5 percent of the cases, the Senate report said. “These three cases lasted from just over eight years to 10.6 years.”
“We have heard of numerous instances in which FBI employees who report waste, fraud, or abuse were not afforded whistleblower protections,” Leahy said. “This has to change.”