Senate Panel Advances Whistleblower Reforms

A key Senate panel on the eve of the Memorial Day holiday approved a package of 19 government reform bills that includes a reauthorization of the Office of Special Counsel while imposing major changes.

The reauthorization of OSC, the main governmentwide outlet for whistleblower complaints, would strengthen that agency’s access to documents, clarify what information agencies must provide to the OSC during investigations, require greater detail on performance in the agency’s annual report, and formalize an arrangement with an outside inspector general for OSC’s own employees to file complaints about prohibited personnel practices or retaliation.

The bill (S. 2968), sponsored by Sens. Ron Johnson, R-Wis., and Chuck Grassley, R-Iowa, cleared the Homeland Security and Governmental Affairs Committee on May 25 as part of a 19-bill package Johnson titled the Bolster Accountability to Drive Government Efficiency and Reform Washington Act (or BADGER Act).

The proposed reauthorization until 2021 comes at a time when the OSC is dealing with criticism about allegedly hasty processing of non-high-profile complaints from some of its own disgruntled employees and as the Government Accountability Office is embarking on an examination of the agency’s procedures and effectiveness.

“Reports of whistleblower retaliation are increasing every year across the federal government,” Johnson said in a statement to Government Executive. “The Office of Special Counsel plays a vital role in ensuring that employees who have the courage to come forward are not punished for doing what is right. This bill will help ... right the wrongs committed against federal whistleblowers, and it will ensure that federal agencies are taking steps to correct and prevent whistleblower retaliation.”

Grassley highlighted a provision he has long sought to ensure that government employees who are removed from sensitive positions as a means of reprisal for disclosures have an avenue for redress at the Merit Systems Protection Board. “Absent this change, whistleblowers in a so-called ‘sensitive’ position may be disqualified from their work, without any way to challenge the decision,” he said, citing a 2013 court ruling allowing agency managers to reassign such employees, the subject of a letter Grassley wrote to President Obama. “The government may also classify entire swaths of jobs as ‘sensitive’ to skirt whistleblower protections.”

In addition to beefing up the OSC’s access to agency materials (enforced by reports to Congress), the bill would empower the Special Counsel to terminate an investigation if the counsel determines that the complaint is redundant, not timely or outside the office’s jurisdiction. 

The bill would require the OSC to expand its annual report to provide, for example, the number, types and disposition of allegations of prohibited personnel practices reported, the number of its investigations, the number of disciplinary actions, and the number of subpoenas it has issued. It would alter agency managers’ performance appraisals to factor in treatment of whistleblowers.

Whistleblowers seeking to report wrongdoing within OSC would be given codified protections under the bill, such as the right to directly communicate with an outside inspector general without needing permission from an OSC manager.

The bill also would require OSC to conduct a pilot survey of individuals who have filed a complaint or disclosure with the office “for the purpose of collecting information and improving service at various stages of a review or investigation by the Office of Special Counsel.”

Nick Schwellenbach, a spokesman for the OSC, said in an email to Government Executive, “We welcome the Office of Special Counsel Reauthorization Act, which will give OSC additional tools to protect whistleblowers and save taxpayer dollars . . . One of the most important provisions clarifies OSC's authority to receive all agency information. Agencies should not be able to shield managers from accountability or hide retaliatory conduct by withholding information from OSC.”

A similar House version (H.R. 4639)  of the reauthorization, introduced in February by Rep. Rod Blum, R-Iowa, cleared the House Oversight and Government Reform Committee in March. “The Office of Special Counsel plays a key role in protecting federal employees who have the courage to blow the whistle on abuse and mismanagement in our government,” Blum said. “As those employees who called attention to the mistreatment of veterans at the Veterans’ Affairs hospitals know firsthand, the OSC is critically important to protect whistleblowers like them from potential retaliation from federal agencies.”

Other bills in the BADGER package, all of which have cleared Johnson’s Senate panel this Congress, include efforts to help agencies comply with GAO recommendations, “strengthen inspectors general, curb improper payments and improve anti-fraud controls, expedite the disposal of unneeded federal property, improve government transparency, rein in the use of federal paid administrative leave, and enhance whistleblower protections,” Johnson said in releasing the package he called “unfinished business.”