Homeland Security employees will retain whistleblower rights

Most, and possibly all, employees of the new Homeland Security Department will have full whistleblower protections under a provision in the homeland security bill.

The measure applies the 1989 Whistleblower Protection Act to the new department, meaning that employees who report misdeeds will have standard protections from retaliation. It is one of the few provisions in the bill that requires the new department to obey existing civil service rules. And in what would be a rare expansion of employee rights under the homeland security legislation, the measure could give full whistleblower protections to employees of the Transportation Security Administration, who lack such protections right now.

Early versions of the homeland security legislation did not guarantee whistleblower protections, but Sen. Charles Grassley, R-Iowa, insisted that they be added to the final bill, according to a Grassley spokeswoman and other observers. "He went to the mat on restoration of independent enforcement for those merit principles," said Tom Devine, counsel of the Government Accountability Project, a nonprofit watchdog group.

The whistleblower provision drew praise from federal employee groups. "This extends the current whistleblower system to federal employees in the new department," said Bill Bransford, counsel for the Senior Executives Association, which represents senior federal managers. "All of this is good, and it is a step in preventing the politicization of the Homeland Security Department."

Section 841 of the homeland security bill (H.R. 5005) gives employees the whistleblower protections included in the 1989 law. This means Homeland Security employees who believe they have been retaliated against for reporting misdeeds will be able to file complaints with the Office of Special Counsel, the independent agency that investigates allegations of reprisal against whistleblowers under the 1989 law. Employees can also appeal actions by agencies in whistleblower cases to the Merit Systems Protection Board.

The provision appears to guarantee whistleblower protections for all Homeland Security workers, but experts were uncertain whether it would cover employees of the Transportation Security Administration, which is currently exempt from the 1989 law. In June, the agency unveiled its own whistleblower protection system that does not include MSPB appeal rights.

Grassley believes TSA employees will have full whistleblower protections under the bill, according to spokeswoman Beth Pellett. "Any previous rights they had before passage of the homeland security bill are superceded by the homeland security bill," she said. Devine agreed. "There's no loophole that says this applies to everybody except those who came over from TSA," he said.

But the Bush administration could not say whether the whistleblower measure applies to TSA. The Office of Personnel Management is still reviewing the issue, according to an OPM official. The Transportation Security Administration did not respond to a request for its interpretation of the bill.

Under TSA's current whistleblower system, employees may request an investigation by the Office of Special Counsel if they believe they have been retaliated against for whistleblowing. The office then reports to the TSA on whether the allegations are justified. TSA officials make the final decision on whether corrective action is needed to address the situation. Employees cannot appeal those decisions to MSPB.

The Office of Special Counsel has received seven requests for investigations from TSA employees to date, according to agency spokeswoman Jane McFarland. But many baggage screeners may be unaware of their limited whistleblower rights because the TSA does not mention them in screener training, according to an official with knowledge of the situation.

The homeland security bill also requires the department to participate in an OSC program designed to help managers comply with the Whistleblower Protection Act, according to McFarland.