CONGRESSWOMAN ELISE STEFANIK
On Wednesday, December 7, 2016, the House will consider H.R. 5790, the Federal Bureau of Investigation Whistleblower Protection Enhancement Act of 2016, as amended, under suspension of the rules. H.R. 5790 was introduced on July 14, 2016, by Rep. Jason Chaffetz (R-UT) and was referred to the Committee on Oversight and Government Reform, which ordered the bill reported on September 15, 2016 by unanimous consent.
H.R. 5790, as amended strengthens protections for whistleblowers at the Federal Bureau of Investigation by expanding the list of persons authorized to receive protected disclosures of waste, fraud, and abuse.
The Civil Service Reform Act of 1978 (CSRA) established statutory protections for federal employees who disclosed waste, fraud, and abuse, and also prohibited retaliation against those employees for making such disclosures. The Office of Special Counsel (OSC) was established as an independent arm of the Board to carry out these functions. FBI employees, however, were exempted from the protections, and instead were covered in a separate section of the statute. The Attorney General is required to develop regulations to protect FBI whistleblowers from retaliation, and the President would provide for the enforcement of those regulations.
The Whistleblower Protection Act of 1989 (WPA) was the first update to whistleblower protections for federal employees under the CSRA. The WPA made OSC an independent agency and revised the protections from covering ‘‘mismanagement’’ to only covering disclosures of ‘‘gross mismanagement.’’ It also allowed employees to file a right of action for retaliation for protected disclosures. However, the WPA did not make corresponding changes to 5 U.S.C. § 2303, covering FBI employees.
Under President Clinton, DOJ issued regulations in November 1999 on procedures for making protected disclosures in the FBI as well as for reporting and investigating complaints of retaliation for such protected disclosures. The final regulations have remained largely the same since then, with only minor amendments in 2001 and 2008.
According to the Committee, one of the most problematic elements of the regulations is a limitation on to whom a protected disclosure must be made. The regulations issued in 1998 include the OIG, DOJ OPR, FBI’s own Office of Professional Responsibility (FBI OPR), the Attorney General and the Deputy Attorney General, the FBI Director and Deputy Director, and the highest-ranking official in each FBI field office. In 2008, FBI’s Internal Investigations Section was also added to the list as a result of FBI OPR being restructured. FBI employees have received information regarding reporting requirements that may cause them to assume a disclosure made to a superior is a protected disclosure when in fact it is not.
Presidential Policy Directive 19 required the Attorney General to report on the efficacy of DOJ’s regulations regarding FBI whistleblower protections. The final report recommended expanding the list of persons to whom an employee can make a protected disclosure—but only to include the second highest ranking official in a field office. GAO expressed concern that dismissing retaliation complaints against whistleblowers who had failed to make their disclosures to designated persons ‘‘would permit retaliatory activity to go uninvestigated, and may have a chilling effect on other potential whistleblowers.’’ Since then, a consensus has formed for expanding who can receive protected disclosures. At a December 9, 2015, Senate Judiciary Committee hearing, Director Comey said that he “very much” supported legal protections for FBI employees who report wrongdoing to their supervisors. Similarly, when Attorney General Lynch was asked about this issue at a March 9, 2016 Senate Judiciary hearing, she testified: “[W]e certainly support protecting those who report within their chain of command.”
The Congressional Budget Office (CBO) estimates implementing H.R. 5790 would cost $1 million annually, subject to the availability of appropriated funds. Further, the legislation would not affect direct spending or revenues and would not increase on-budget deficits in any of the four consecutive 10-year periods beginning in 2027.
For questions or further information please contact Jake Vreeburg with the House Republican Policy Committee by email or at 6-1828.