The Whistleblower Empowerment, Security and Taxpayer Protection Act

Senator Frank Lautenberg

The Whistleblower Empowerment, Security and Taxpayer Protection Act of 2005 (WESTPAct) is a brand new approach to whistleblower protection that provides an alternative to the failed models of the past.

Congress overwhelmingly recognizes the need to protect whistleblowers who protect public safety and save tax dollars. Despite having written and rewritten the Whistleblower Protection Act, the law continues to be a hollow promise for those it is supposed to protect. Whistleblowers often sacrifice their careers to protect our country, but they rarely receive the justice they deserve.

Since 1999, only 2 out of 30 whistleblowers have prevailed on the merits of their case before the Merit Systems Protection Board, and on appeal, the results are even worse. Our security may be endangered and countless taxpayer dollars may be wasted each year because whistleblowers do not feel empowered to report wrongdoing.

What WESTPAct Does

Right now, managers who retaliate against whistleblowers get off basically scot-free, even though whistleblower retaliation is against the law. Only the agency, the defendant in any case brought by the whistleblower, can take disciplinary action against a manager. That is a rarity. Furthermore, whistleblowers have almost no remedy: the best they can do is recover the pay they should have gotten anyway. That is not justice.

WESTPAct puts imposes consequences for retaliation and empowers whistleblowers to stand up for themselves.

A New Process for Whistleblowers

WESTPAct creates a new process for whistleblowers to obtain corrective action and redress of their grievances, while still giving whistleblowers the option of using the old system. Under WESTPAct, whistleblowers would:

· Be guaranteed that Inspectors General would be more independent and have established channels to receive whistleblower complaints;

· Be able to complain to members of Congress, law enforcement, or other authorized officials of misconduct;

· Be able to recover damages and reversal of personnel actions in district court if retaliated against;

· Be protected from retaliation no matter which government agency they work for, or if they work for a federal contractor;

· Be protected from having their security clearance revoked in retaliation for whistleblowing; and

· Be assured that their case could not be thrown out of court because of a frivolous classification of information.

· Be granted increased transparency when a President exercises his power to exclude agencies from Whistleblower protections.

Those who retaliate against whistleblowers would be held accountable:

· Retaliators and those who engage in prohibited personnel practices would be guilty of a civil offense;

· In a case where a whistleblower reports a violation of the law, retaliators would be guilty of Obstruction of Justice;

· Whistleblowers would be able to petition the Attorney General to appoint a special counsel in cases where there is a significant likelihood of political interference.

Key Provisions

· Amends Obstruction of Justice statutes (18 USC 1512-13) to protect disclosures of any illegal activity (not just criminal activity), and to protect disclosures to Members of Congress, inspectors general, and other authorized officials.

· Holds those who engage in whistleblower retaliation and other prohibited personnel practices under 5 USC 2302 (which includes the Whistleblower Protection Act) liable for a civil penalty not to exceed $50,000.

· Expands 5 USC 2302 to cover employees of the FBI. Expands the Whistleblower Protection Act to cover employees of federal contractors.

· Expands the Whistleblower Protection Act to cover employees of intelligence agencies in the case of lawful, non-public disclosures.

· More clearly lists the activities that are covered by the Whistleblower Protection Act.

· Requires the President to report to Congress when he exercises his authority under the Whistleblower Protection Act to exclude positions from its coverage.

· Allows those whose security clearance has been revoked as retaliation for whistleblowing to recover damages, but leaves the decision on whether to restore security clearance to the executive branch.

· Improves independence of inspectors general by giving them budget autonomy, imposing a fixed term of office and specifying clear criteria for removal.

· Requires inspectors general to maintain avenues for whistleblowers to report waste, fraud and abuse.

· Allows all U.S. Attorneys to prosecute whistleblower retaliation and civil violations of 5 USC 2302. Allows whistleblowers to petition the Attorney General to create a special prosecutor in cases that have a substantial likelihood of political interference.

· Creates procedures that prevent the government from frivolously asserting state secrets privileges while assuring that classified information will not be disclosed.