Like a stinging winter wind, Trump administration action gives a chill to Energy Department whistleblowers.
The department has temporarily halted an Obama administration regulation permitting civil penalties against federal nuclear contractors that retaliate against whistleblowers who report waste, fraud and dangerous conditions.
In procedural rules published in the Federal Register, the Energy Department said the regulation would be frozen from Jan. 31 until March 21 in keeping with President Trump’s “plan for managing the Federal regulatory process at the outset of the new Administration.”
A department summary of the rule says it “stays DOE regulations for the assessment of civil penalties against certain contractors and subcontractors for violations of the prohibition against an employee who reports violations of law, mismanagement, waste, abuse or dangerous/unsafe workplace conditions, among other protected activities, concerning nuclear safety.”
Unlike many federal rules and regulations, this one was not available for public comment before implementation, “as such procedures would be impracticable, unnecessary and contrary to the public interest,” said the Federal Register notice from John T. Lucas, the department’s acting general counsel.
Exposing whistleblowers to employer retribution is a pretty skewed definition of the public interest. Whistleblower advocates worry the rule could discourage workers from reporting violations.
“There is already a chilled atmosphere for DOE whistleblowers, and the rule that has now been stayed was meant to help address that problem,” said Lydia Dennett, an investigator with the Project on Government Oversight. “Halting the regulation from going forward does nothing to help the department and certainly will not encourage whistleblowers to come forward with legitimate safety concerns.”
Added Louis Clark, executive director and chief executive of the whistleblower advocacy Government Accountability Project: “We have had to engage in pitched litigation against contractors who routinely fire any whistleblower who dares to expose contract fraud, extraordinary public health and safety dangers, and massive contamination of the environment and the workforce — 80 percent of the DOE’s entire budget goes to these contractors.”
Yet Energy Department officials see no problem.
“The Department of Energy is strongly committed to a workplace where all workers — both federal and contractor — are free to speak out, voice concerns or lodge complaints, without fear of retaliation,” said Energy Department spokeswoman Lindsey Geisler. She cited the administration’s directive on its first day, Jan. 20, temporarily postponing regulations that had not been implemented. The Obama regulation was to have taken effect on Jan. 26.
Unless the regulation is reinstated, contractors can punish whistleblowers with no fear of civil penalties. Even a temporary halt on penalties against vengeful contractors could discourage whistleblowers.
Alan Chvotkin, executive vice president of the Professional Services Council, which represents government contractors, said that suspending the regulation “made no substantive change to that policy and made no change to the underlying prohibition on such contractor reprisals. Even with the temporary stay, DOE retains a wide range of other administrative and contractual remedies to address violations.”
Yet Trump’s coldness toward whistleblowers goes well beyond this Energy Department rule. Rep. Elijah E. Cummings (D-Md.) said it is part of a series of actions that could have “real and serious consequences.”
Immediately upon taking office, the administration began imposing gag orders at some agencies that restricted the ability of federal employees to communicate, even with Congress. When State Department employees used an approved, internal “dissent channel” to complain about Trump’s executive order banning immigrants from seven predominately Muslim countries, White House press secretary Sean Spicer made it clear what they could do with their criticisms: “Either get with the program or they can go.”
The Energy Department was no whistleblower’s paradise under President Barack Obama either.
A Government Accountability Office report in July said that the Energy Department “has infrequently used its enforcement authority to hold contractors accountable for unlawful retaliation, issuing two violation notices in the past 20 years” and that “DOE has taken limited or no action to hold contractors accountable for creating a chilled work environment.”
Also worth noting, the Energy Department pays the legal fees of its contracting companies in whistleblower disputes, directly financing the firms’ actions against employees who report wrongdoing.
Not directly related to the Energy Department rule, letters to the Trump White House from alarmed members of Congress from both parties warned against muzzling whistleblowers, especially if they want to contact Congress. A letter from Cummings and Rep. Frank Pallone Jr. (D-N.J.) said impeding federal employee communications with Capitol Hill “appear to violate a host of federal laws.”
Separately, Senate Judiciary Chairman Charles E. Grassley (R-Iowa), House Oversight and Government Reform Committee Chairman Jason Chaffetz (R-Utah) and government operations subcommittee Chairman Mark Meadows (R-N.C.) wrote: “Whistleblowers can be one of the incoming Administration’s most powerful allies to identify waste, fraud, abuse and mismanagement in the federal government and ‘drain the swamp’ in Washington, D.C.”
That’s a lesson the Trump administration has yet to learn.