DC Government Considering Strong Whistleblower Protection Bill

As part of POGO's effort to identify good government practices at the state and local level, I attended the DC City Council's Committee on Government Operations and the Environment's June 26 hearing on the "Whistleblower Protection Amendment Act of 2009." It will likely become law, as 12 of the 14 council members signed on to introduce the bill. If the components of the bill remain the same through the mark-up process, it could be one of the most protective and comprehensive whistleblower protection laws in the nation. (For a look at how your state ranks on whistleblower protection, check out PEER's great analysis.)

First off, I want to commend the Committee staff for following the good oversight hearing practice of having those most affected by the legislation speak first (the whistleblowers), followed by the subject matter experts (public interest groups), and lastly the government panel. This format, which we recommend during our COTS training to congressional staffers, ensures that government witnesses have to respond to any allegations raised by the whistleblowers and advocates. Also, by first spotlighting the harassment and humiliation experienced by employees from the DC Departments of Fire, Police, and Health, who blew the whistle on discrimination, corruption, and conflicts of interest, the hearing set the stage to explore why DC needs a “modernization” of its whistleblower protection laws.

Some of the key components of the proposed legislation include:

• Making it illegal for a supervisor to launch a retaliatory investigation of an employee who blew the whistle;
• Holding supervisors personally liable for retaliation, meaning whistleblowers could sue their boss for up to $10K for harassment;
• Allowing employees to bring a civil action even if they have brought an administrative claim; and
• Giving whistleblower protections to contract employees.

Our colleagues Tom Devine and Richard Condit at the Government Accountability Project (GAP) testified in support of the legislation, and also recommended that the bill be strengthened by:

• Clarifying other muddled areas of the current law, such as the legal burdens of proof;
• Granting the right of reprisal victims to file counterclaims in the same lawsuit related to the disciplinary action;
• Protecting employees against forced psychiatric fitness-for-duty examinations; and
• Requiring the District to establish a safe channel for employees to file formal whistleblowing disclosures and participate in corresponding investigations.

-- Ingrid Drake

Corrupt Politicians: Watch Your Back or Clean Up Your Act

We are pleased to learn that a new bipartisan organization has been formed to root out public corruption at the local, state, and federal level. The North Carolina-based Foundation for Ethics in Public Service uses a model that we believe in: soliciting tips from concerned insiders, whistleblowers, and the public.

POGO also relates to the Foundation's guiding principles: “first, government will always have a hard time policing itself; and second, more can be accomplished if we don't care who gets the credit.”

The website explains in more detail:

Our goal is to get results, not credit. One of the ways we will facilitate investigative reporting is by receiving and vetting tips, then passing them on to investigative reporters who expose them to the spotlight of media coverage. In other instances, investigative reporters will enlist our help to dig deeper when their instincts tell them there is more to the story, but they simply lack the time or resources to pursue the story. In those cases, we will investigate further and then hand the story back to the reporter who provided us with the tip in the first place.

Since launching their website on June 13, the group has already received 20 tips, which they will vet and pass along to investigative journalists and law enforcement agencies.

When I spoke with staff at the Foundation, they told me that since news went out nationally about their group, they have received tips from Virginia, Michigan, and California on corruption at universities, in law enforcement, and at the U.S. Attorney’s Office.

-- Ingrid Drake

Former Lockheed Martin Engineer Calls Fraud on F-22 Stealth

As the fight over whether to continue production of the F-22 rages on, a recently unsealed qui tam lawsuit raises major questions about its stealth capabilities, one of the key air-superiority features of the fighter jet. If the allegations are true, the justification for the whole program may be in question.

The lawsuit, filed by a Materials and Process engineer specializing in stealth (also known as low-observable materials), accuses Lockheed Martin of fraudulently developing the stealth capability of the F-22 and falsely portraying to the Air Force that the stealth coating on the fighter met specifications. The engineer, relator Darrel O. Olsen, also alleges that the management at Lockheed Martin directed him not to speak to the Air Force about the problems with the coating, and that his advice to modify the coatings or purchase different coatings to meet specifications were ignored due to concerns with meeting contract milestones. While the relator in the case left Lockheed Martin in 1999, the suit claims that third-party sources report that the stealth capability of the F-22 remained dysfunctional through at least 2004, with Lockheed Martin knowingly using defective coatings and never fully disclosing the low observable system defects to the Air Force.

This of course is not the first time that the real and practical capability of the stealth of the F-22 has come into question. Just last February, POGO reported that the maintenance requirements for the stealth capability significantly reduced the F-22's mission capability. As we said at the time, we believed that this may have been one of the primary reasons why then-Defense Department Acquisition Chief John Young said that the F-22's mission capable rate was too low to waste additional taxpayer dollars on further procurement.

-- Mandy Smithberger

Whistleblower Administrative Court Accidentally Posts Decision with SSI Marking

Former Federal Air Marshal Robert MacLean's ongoing struggle to appeal his termination from the Transportation Security Administration (TSA) took a bizarre turn on Monday evening when the administrative court reviewing his case inadvertently posted its decision online with every page marked "Sensitive Security Information" (SSI), along with threatening disclaimers on the bottom of each page declaring "WARNING: [] Unauthorized release may result in civil penalty or other action." This is a particularly embarrassing moment for the Merit Systems Protection Board (MSPB) since the TSA retroactively applied the very same SSI label to information disclosed by MacLean in order to justify his termination.

Although the MSPB has now re-posted the decision without the SSI label, its original release of information marked SSI raises significant questions about MacLean's termination, and highlights the government's haphazard approach toward handling sensitive but unclassified materials.

In 2003, MacLean tried to blow the whistle within the Department of Homeland Security (DHS) on an operational plan by TSA to cut costs by reducing air marshal protection on nonstop, long distance flights during a suicide hijacking alert. After being rebuffed by his supervisors and the DHS Inspector General, MacLean alerted the press of TSA's dangerous plan. In April 2006, TSA fired MacLean--a ten-year law enforcement veteran with an unblemished record--for a single charge of "Unauthorized Disclosure of Sensitive Security Information," even though the message he disclosed was not marked with any such label. Four months later, TSA retroactively applied the SSI label to his disclosure.

Ever since his termination, MacLean has been forced to navigate through the labyrinthine administrative court system to try to get his job back. His case exemplifies the ordeal faced by many other federal whistleblowers: since 2000, the MSPB has found only one case of illegal retaliation in over 50 decisions on the merits.

The MSPB's latest goof also underscores the inconsistency of the government's handling of information considered sensitive but unclassified. TSA said MacLean was supposed to know that his original disclosure was SSI, but apparently the MSPB itself is confused about when and how to apply the label. In general, POGO is concerned that pseudo-classification labels like SSI have been abused to cover up embarrassing information and to retaliate against MacLean and other national security whistleblowers.

In testimony before Congress earlier this month, POGO's Danielle Brian pointed out that by making amends for the disgraceful treatment of MacLean, the government could send a strong message that whistleblower retaliation will not be tolerated. POGO is also hopeful that the administration's pending review of procedures for handling Controlled Unclassified Information (CUI), in addition to legislation introduced last week by Sen. Jay Rockefeller (D-WV), will limit future abuses of the SSI label.

-- Michael Smallberg

New Bill Would Limit Use of "Sensitive Security Information" Label

A new bill introduced last week by Senator Jay Rockefeller (D-WV) seeks to limit the ability of the government and private organizations to use the Sensitive Security Information (SSI) marking to avoid revealing embarrassing or damaging information. The SSI label is intended to allow the Transportation Security Administration (TSA) and the Coast Guard to protect information that could be useful to terrorists and consequently compromise transportation security. However, SSI is not technically "classified." Information that can be categorized as SSI includes, for example, airport and port security plans

The new bill is a response to Bayer CropScience's attempts to use SSI regulations to withhold information from investigators and the public on an explosion that killed two employees at its Institute, WV plant in 2008. Due to its location adjacent to a river, part of the facility is governed by security regulations administered by the Coast Guard under the Maritime Transportation Security Act. The local community was particularly concerned about the accident because the explosion occurred near a large tank containing MIC, the same chemical that killed thousands of people following an explosion at the Union Carbide plant in Bhopal, India in 1984.

In the end, CropScience did not withhold information from the federal Chemical Safety Board, which was responsible for investigating the incident. However, the company's President admitted at a Congressional hearing in April that CropScience considered withholding information not only because of "legitimate security concerns" but also because of "the desire to avoid making the controversial chemical MIC part of the public debate regarding the incident."

POGO supports the legislation's goal of ensuring that the SSI label cannot simply be invoked to prevent the release of embarrassing information. However, we're concerned that the bill continues to refer to SSI as a "classification," when it is really nothing more than an unclassified label. In addition, it remains to be seen if the legislation will be enough to prevent retroactive labeling of information as SSI to punish whistleblowers, such as former Federal Air Marshal Robert MacLean.

In 2003, MacLean attempted to disclose information to the Department of Homeland Security's Inspector General on an operational plan by TSA to cut costs by reducing air marshal protection on nonstop, long distance flights for two months. After being rebuffed by the IG, he contacted the press. Thanks to outrage from Senators Hillary Clinton (D-NY), Barbara Boxer (D-CA), and Charles Schumer (D-NY), TSA's plan was never implemented, but TSA fired MacLean in April 2006 for a single charge of "Unauthorized Release of SSI." Four months later, in August 2006, the agency retroactively categorized his July 2003 disclosure as SSI. POGO has since been following his ongoing struggle to have his federal law enforcement career resurrected.

Mr. MacLean recently wrote to POGO, "I hope that Sen. Rockefeller's legislation will prevent an executive agency from labeling a whistleblower disclosure with this unclassified information marking--Sensitive Security Information (SSI)--like the Transportation Security Administration (TSA) did to me in order 'to hide wrongdoing, [and] avoid public embarrassment,' as stated in the Senator's press release.” Only time will tell if this new legislation will set the record straight on SSI and ensure that potential whistleblowers will not be deterred by fear of retroactive SSI labeling.

-- John Cappel

Watch POGO Testify on Whistleblower Protections

POGO's Danielle Brian is on her way to the Hill to testify at a hearing on the landmark Whistleblower Protection Enhancement Act of 2009.

POGO will be urging the Senate to include key provisions from the House's version of the bill that would give whistleblowers access to jury trials and extend protections to national security whistleblowers. As many of you know, POGO and its coalition partners have been fighting for decades to protect federal employees who blow the whistle on waste, fraud, and abuse, and now we finally have a chance to make significant improvements to the existing whistleblower laws.

The hearing is scheduled to begin around 2:30 P.M. A live webcast will be available here. And Danielle will be providing live hearing updates on Twitter.

-- Michael Smallberg

Ohio on Track for Effective Stimulus Tracking

Ohio Auditor of State Mary Taylor recently introduced the Ohio Stimulus Tracker, a web-based tool for citizens to monitor the use of Ohio's stimulus dollars. The information is organized by county and can be accessed by clicking on a map. Each county page has a list of departments receiving funds, accompanied by a monetary value. And each department name can be expanded to show more detailed information on the type of work, how the money is used, and dates.

Right now there is little information on the site, as it is the responsibility of the counties to add the information as they spend the money. But in the meantime, we're pleased to see that a 1-800 number to report fraud and abuse of funds is featured prominently on the sidebar.

Unfortunately, the stimulus tracker only identifies the department that receives the funds, not the specific contractor. Without that information, it is difficult to ascertain who is receiving the funds and how effective the money is at creating jobs.

POGO applauds Auditor Taylor on her commitment to accountability and transparency, but we encourage her to provide the actual contracts so that the public has the information it needs to ensure that the recovery funds are being spent responsibly.

-- Eric Orenstein

Deepwater Whistleblower Michael DeKort v. Integrated Coast Guard Systems

Qui tam False Claims Act suit is available here.

-- Mandy Smithberger

Whistleblowing Done Well[ded]

A recent Inside Defense story (republished by the Military Times here) provides a textbook example of how a contractor can appropriately resolve a whistleblower's concerns. Last month, a Northrop Grumman Shipbuilding welding inspector notified a supervisor that another inspector approved welds without actually performing the inspections. And instead of making the whistleblower the issue or trying to cover up the problem--estimated to effect 10,000 welds--the supervisor set to work to resolve the problem raised by the whistleblower. He confronted the accused inspector, who admitted that he had falsified three weld inspections that day, and the company conducted an investigation, suspended and eventually fired the inspector, and re-inspected the welds this inspector had approved. Both the colleague and the supervisor did the right thing, and the problem is being resolved before it can jeopardize anyone's life.

-- Mandy Smithberger

Attitude Adjustment

Back in March, POGO released its second report on the Inspector General (IG) system, entitled Inspectors General: Accountability is a Balancing Act, in which we examined how to hold IGs accountable. One of our most troubling findings in that report was that IGs often treat whistleblowers as mere afterthoughts. In our experience, IGs often project an attitude of indifference towards whistleblowers and do not aggressively pursue whistleblower disclosures or adequately protect whistleblowers from retaliation. Given the history of significant government misconduct disclosed by whistleblowers as well as the history of retaliation suffered by whistleblowers for disclosing that misconduct, POGO finds that attitude shameful.

A simple way to gauge an IG's attitude toward whistleblowers is to look for public statements highlighting the integral role played by whistleblowers in cases that resulted in a successful outcome. An example of that can be found in recent testimony before the Senate Aging Committee by the IG for the Pension Benefit Guaranty Corporation (PBGC), Becky Batts. In her testimony, Batts noted:

"I am grateful to the PBGC employee who first reported the questionable actions of the former Director to my office. Disregarding concern about how well the Whistleblower Protection Act could protect his/her identity, this loyal employee made a choice to put PBGC's interests above the employee's own interest to be free from possible retaliation. That choice will help the PBGC Board and PBGC leadership make the changes needed to maintain the public's trust. This employee deserves our gratitude and thanks."

These statements go a long way towards informing potential whistleblowers that reporting government misconduct is a valuable and courageous act that should be celebrated rather than neglected. If the IG community is truly interested in improving their ability to work effectively whistleblowers, they should start by following the lead of IGs like Batts, Special IG for the Troubled Asset Relief Program Neil Barofsky, and SEC IG David Kotz.

-- Jake Wiens