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tv   Hearing Focuses on Whistleblower Protections  CSPAN  February 5, 2017 5:28am-7:01am EST

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>> tonight at 8:00 eastern on "q&a." n oversight hearing about the 2012 whistleblower law. [inaudible conversations] >> the subcommittee will come to order the chair can authorize a recess said in a time ally will differ to the ranking member for an opening statement. >> federal employees below the low whistle on waste fraud and abuse on the frontlines on the effort to insure our government functions efficiently and effectively. there is a strong bipartisan report and for holding
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today's hearing to form the bedrock of the very whistle-blower protections from the subcommittee. five years ago the bipartisan enhancement act of 2012 significantly cut the right of federal employees. this legislation mark substantial progress uh gaps remain we must continue for all federal employees. i'll look forward to hearing from our witnesses under
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current law such as the big south -- jim proposals to address those challenges and to mark up the bill i have sponsored to follow the rules sacked. ruling those today in order ob if violates a statute but that was never the intent of the law. but this bill clarifies the whistle-blower protection act as a regional be intended is not a statute. but those changes are not enough. congress must provide inspectors general with the resources they need to
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investigate enforce protections under the law. for example, we have heard of retaliation that psa that sounds like the wild west. and we cannot commend bet i was alarmed to hear reports that all the days after the inauguration that certain federal agencies had issued a gag orders on federal employees. one memo issued by the acting secretary of the very first day in office, no correspondence, specifically
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a authorized between now and february 3rd. that language that prevents them from speaking with members of congress on his own appears to violate a number of federal laws and is certainly send the chilling message to federal employees. to insure those communications are complying with a lot. is my hope moving forward in israel is that on this subject. to an the bedrock of then hanse attacked.
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>> and must provide oversight under the law. >> and welcome thanks to the gentleman from florida of four gaveling as san my apologies sketch to the committee of oversight we appreciate your interest in this topic and welcome your participation today. in the interest of time i will skip ely opening
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statement and to hear from you. >> don't worry i speak for both of us. >> no doubt about that. [laughter] that we are attached at the hip but we will hold the record open and 45 legislative days. >> i asses' be entered into the record. >> i am pleased to the deputy inspected general into the deputy special counsel hopes for litigation of special affairs and the legal director at of a government accountability project and policy tools
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sold on government oversight. we ask call witnesses be sworn in before they testify. please rise and raise your right hand. to swear or affirm the testimony you are about to give is the truth the whole truth and nothing but the truth? let the record reflect all witnesses answered in the affirmative. i would appreciate if you please limit your testimony to five minutes. the chair recognizes for the full committee for an opening statement. >> i really appreciate your indulgence.
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whistle-blower protections are bill to on the foundation of to process protections for by look forward to the testimony how we can continue that all federal employees to blow the whistle are projected to is the enhancement act of 2012 as an original cosponsor of the bill which significantly expanded the protections available to government red -- workers were exposed their jobs reporting wrongdoing said no. have come before us but unfortunately it appears the trump of administration in
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the first week has already violated the enhancement act only days after the inauguration that federal agencies issued gag orders on federal complete communications including those with conagra's. we have obtained one of these memos that were issued by the new acting secretary of department of hhs and tried to prohibit federal employees from speaking to members of congress. let me repeat that. the trump did ministrations tries to prevent federal and pleased to speak to members of congress and something is wrong with that picture. , that violates the enhancement act because it does not include what we require to protect
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whistle-blowers but any disclosure policy to include a mandatory statement including specifically communications with congress and reid passes unanimously. now they first tried to deny that then they have a clarifying statement the minders standing is even a the clarifying statements still fails to include a mandatory statement from the whistle-blower protection act. i ask the this committee to obtain all e-mail's and other communication in the position at hhs relating to this directive and
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clarification as well as prohibiting federal employees from speaking to congress. >> i am making a simple request back i have no idea what you last i was otherwise in gauge. >> i did not mean to catch you off-guard per you have been wonderful and i appreciated. i said to seek and obtain all communication of the bills of the anybody at hhs relating to the directive of
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the subsequent clarification to prevent federal employees speaking to members of congress. that should be a no-brainer. >> the gentleman knows very well matter who is in the white house the chairman believes that having open communication between members of the federal government and members of congress is something that should not be inhibited. so certainly i am open to following up to make sure we have clarification and to make sure the message is loud and clear and open and transparent government is something that the administration supports as wall. >> this is not the only active they have taken. the team has names of
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employees who had worked on climate change initiatives. another request was made to the state department with regard to staffing in those positions related to gender equity and violence against women lighthouse spokesperson said the state department in please should get with the program or they can go''. the director of the office of government ethics said the tone from the top matters. i am afraid his tone will discourage whistle-blowers exactly the opposite of what we hope to accomplish through the enhancement act. there's still time for this
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and ministration to change. what ever wrote to white house counsel we requested the president take immediate action to rescind all policies that do not comply with the whistle blower protection and enhancement act. also urging him to issue an official statement that all employees have the right that will not be silenced retaliated. i urge that these recommendations send a clear signal that, blowers will be protected and this committee has made it clear to both sides of the aisle and with that i appreciate your indulgence and the yield back. >> the chair is committed to making sure we have an open and transparent accountability and that
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serves the american taxpayer well regardless of party for any partisan outlook. family of the full committee but the subcommittee recognized you for five minutes i apologize to your staff who was here earlier today. >> whistle-blowers perform the invaluable service when they come forward with the wrongdoing emission never suffered think you for inviting me to speak of the role of the offices inspector general's play with regard to informing whistle blowers of the right to protection. since the program was
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established and with the creation of such a of the federal entity it is as well . we are responsible under the act of the prohibitions to make protective disclosure those who have contemplated with the rights against italian asian. end of this important provision in it is entirely consistent from the inspector general act itself that provides to receive investigate complaints with that person no action just
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as well placed to deter waste and fraud and whistleblowers are on the "frontline" and they've played a critical goal to bring forward such information to ensure they are comfortable and to inform to and protected and importance to the mission. we and many others carry out our rules by creating in disseminating educational material and conducting training programs. we have then instructional video that is required for video of all managers and supervisors and available on line. we have prepared informational fliers with contact information for the office of special counsel the plays us central role.
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we have worked with the fbi and other components for their work force in the case of the fbi to redress specific requirements including the most recent from fbi also for those employees of contractors and like many counterparts to have the robust pace job website and shirley after the passage we worked through the council of the inspector general to have a working group to share information and discuss best practices and our colleagues are active participants to facilitate coordination and cooperation and the of
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representatives of many other groups have met with us as well. that working group is also facilitating meetings and we partnered with osha and congressional staff with the successful celebration here and the capital. as congress considers reauthorization i close by mentioning a couple of areas. first the work redo is done by their traditional ombudsman. this may result in confusion and i am pleased to work with the committee to discuss that. may need the educational activity and the resource
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that is intensive and with other responsibilities in is impacted and the work in this area is so expected to increase as they're made permanent. i am pleased to work with you and your staff on these issues i am happy to answer any questions you may have. >> good afternoon ranking member chairman and i am thinking for the opportunity to testify for the whistle-blower protection enhancement act. to discuss the key parts of the wpea to protect more whistle-blowers' than ever or how to make a more effective.
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and independent engine see one of our primary mission is to protect employees from whistleblower at retaliation since enacted five years ago the number of whistle-blowers complaints has increased by 15%. for example, increasing the number of favorable outcomes by 150% and increase the disciplinary action by 117% to take further steps to strengthen the of whistle-blower law through the galleries program. these protections are important because they are a vital tool with waste fraud and abuse to help save hundreds of millions of taxpayer dollars. the one to think congress for the forceful bipartisan support and in particular
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representative for his sponsorship of h.r. 69 which passed the house earlier this year end this committee's enthusiastic backing makes us far more effective with forward to in the new congress and beyond. wpea is landmark legislation to help federal whistle-blowers providing many new protections including authorizing the oic to shape the law by filing friend-of-the-court briefs that our available to the whistle-blowers to grant full protections to all t.s. eliot please. os siesta key -- succeeded
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in securing victories to use our new authority to file a brief with the supreme court from the department of homeland security and in the decision they agreed with arguments on behalf of a whistle-blower. since 2012 policy has received and investigated 243 retaliation cases on gsa employees that we could not investigate prior to the wpea. another new element is the anti-negative aboard air provision which ensures that protection will supersede any nondisclosure agreements and requires any non disclosure agreement includes language that clearly states the employee may still flow the whistle even after they sign the agreement or are subject to policy. and for saying baghdad
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provision we have obtained nearly three dozen corrective actions and issued specific guidance to agencies on this topic. also with provisions that are set to expire this year the ombudsman's program that was discussed in the review program oic strongly recommends both of these speak made permanent and finally it has undeniably strengthened protections and further enhancement should be considered. for example, the wpea says some i ha i evidentiary burden and congress intended this to apply the jobs while it is an everyday job function they have applied
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this burden to jobs like teachers and purchasing agents making a harder to prove the retaliation claims and we recognize congress should clarify this burden applies only to the subset of federal workers as a chord job function. we appreciate the support for office and federal whistle-blowers' thank you for the opportunity to testify i'm happy to answer your questions. >> this hearing is significant because it is essential to circumvent the of mandates in because 2017 is the year of unfinished business of that structure
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to enforce that right. after 39 years was of course, would have legal rights that they could have a battle shields against retaliation. 2016 continued the pattern over the last five years of then the best in the worst of times in my written testimony talks about the encouraging role and the office of special counsel and the unprecedented whistle-blowers who are making a difference. if the supreme court arguments whose disclosures stop during a more ambitious attempt of an elephant then to better protect the nation and justice scalia interjected and was successful. is no wonder they're
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receiving more respect than ever before unfortunately it is the sad truth with that track record influx the best option that exist. it continues to be a mirage. whistleblowing is more dangerous than ever before. the first is the administrative agency enforcement. the trade-off result in almost no litigation to undermine the of relevance. it could not be more than the anecdotal part of a justice but to consistently
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achieve the experts know remedial agency can substitute and unfortunately they're not getting that. to be responsible stewards there conducted by administrative judges ruling in against whistle-blowers when you combine that they cannot have more then they chance under the law. . .
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with the transcript because the appeal but due to vacancies they cannot issue decisions and there is no end in sight. the due process is the protection activity kiwis he'll. shifting tactics have made it less effective because it is more difficult to fire employees then open more retaliatory investigations of criminal referrals and there is no defense against this form of harassment. then there is the sense of the
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jobs loophole that will assume the entire merit system if the congress doesn't act and finally, there is a lack of acceptance. immediately after the victory, they signed up to the air marshal missions on the flights to the middle east despite intelligence for the undercover air marshals and he was the most visible in history. after they intervened, the agency assigned them to an empty room and refused even routine promotions into bankruptcy although he continues to make impressive disclosures about the security breaches, they will not assign him any duties due to the lack of seniority caused by its own termination. it had a process in the clearance although it was required within 14 days.
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mr. chairman, my written testimony has a full menu of suggestions for how we can deal with these challenges. >> than >> thank you for your passionate and articulate testimony. we will be following up in earnest some of these things are things we were all aware of and some obviously not. but working and making sure that their success rate is greater and not laborious is something this committee is committed to. thank you. >> members of the subcommittee on government operations, thank you for inviting me to testify today five years ago congress passed the whistleblower protection and enhancement act for the federal workers who blow the whistle on waste, fraud, abuse and illegality.
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they clarified any whistleblower discretion may be protected including when they make a reasonable disclosure to his or her supervisor even if the supervisor is involved in the wrongdoing. the intended making the disclosure shouldn't be factored in when determining whether he or she made a protected disclosure. they file the appeal on any u.s. court of appeals jurisdiction. the committee led the charge in extending the pilot program two
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years ago and we can't work to make it permanent. the enforcement hasn't been without issue. the report released two years after the passage revealed only one agency out of the 15 studies were compliant with the provision of the wall. this important provision has been called into question as recently as last week when several agencies ordered staff to see the external communications. as members of the committee recognized the directives may violate the law. efforts to prevent employees from communicating with congress and the public could represent a threat to public health and safety and continued congressional oversight as necessary to make sure that this important provision continues to be implemented properly. despite broad protection laws, the totality include a patchwork of protections depending on where the whistleblower works
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and the government and in what capacity. they afforded new and necessary protections to federal employees anwhen enacted but it excluded contractors despite having a proven track record of success with previous protections. although the whistleblowers have some protection under the presidential policy directive 19, it is narrowed to be considered comprehensive and can be revoked at the president's discretion. they must have safe channels to report abuses of power in congress has the responsibility to fill accountability loopholes. the next round of legislation must include protection for the community contractors. they should acquire mandatory punishment against supervisors that retaliate. without punishment for those that retaliate there is no substantial deterrence to violating the law. any legislation should carefully balance due process rights of employees refused with a proper chance to the defense and appeal a final decision.
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decision. recently passed legislation creates a minimum of 12 days unpaid suspension when he complained a supervisor retaliated against a whistleblower is substantiated. this should serve as a model. it's also important to update the recent curtailing of the protections in the cases where federal employees refused to obey the order in the regulation created by the agency. another area of concern is the implementation of president obama's insider threats program that was created in order to ensure the responsible sharing and safeguarding of classified information. it includes a provision to identify the whistleblower disclosures. despite this we have seen government training materials complete whistleblowers like thomas are just lik with her jue fort hood killers. the office of director of the df national intelligence has assured them that he has been productive.
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however the oversight may be helpful to make sure the program isn't used improperly. many of these issues i raised in the testimony hinge on congressional oversight. they are champion and not punished. i look forward to your questions. thank you for holding this hearing. >> thank you for the testimony and i will now recognize the gentleman from florida for five minutes. it should be the shield to protect those that see the wrongdoing in the corruption and allow them the incentives to cut
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off the wrongdoing and enforce what needs to be done. but it seems in the testimony that it's been turned back. for every whistleblower complaint in most cases there is a counter complaint against them. them. is this routine for you or any others to investigate the source of the circumstances surrounding the complaint to see if it may be a counter complaint lacks thv for >> thank you for the question. it raises important issues obviously as the inspector general would receive information in the offices from employees throughout the department that we oversee.
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one of the things we take into account is the source of the information and we evaluate that as we evaluate the information. people may have lots of reasons they come forward and that doesn't invalidate the information that they provide. they make themselves subject to the counter complaint and that is what i'm trying to make sure we can nip in the bod bud for te cross-referencing complaints that can be worked out. there are competing interests
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and legitimate investigations that we don'but we don't want te investigations be used in any way to deter people so how does that protect whistleblowers to come forward and we would certainly be happy to come forward. >> that leads me to the next question how important is the subpoena power? >> dot subpoena power that we currently have under the rule for both but the issue that we have is access to information where we think that it would be extremely helpful for the congress to clarify the statutory direct access to all relevant information and documents and witnesses and not be subject to perhaps incorrect assertion of the attorney-client privilege by the agency similar
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to what they currently have. having that ability to do with the agency doetheagency does tod the wrongdoing is essential. >> if somebody has a subpoena what is the court of jurisdiction there and who decides whether there should be enforcement? >> they would make the decision whether to enforce that. >> and it would still have to be in the district court. >> there've been some positives that one of the things have been a lack of enforcement where i think that's the source should be can you articulate in any way what additional measures of enforcement may be necessary in order to make it effective because as one that is a student
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of the law, that the turbines have an impact on future behavior and future performance especially if somebody decides that they don't want to have the repercussions against them. any suggestions on how to curb the enforcement? >> we couldn't agree more that the disciplinary actions have a ripple effect that shows they can be held accountable. we have a decision we need to prioritize to get them back on their feet and back on their job to protect them first. to the extent we can, we are proud of the fact that we have been able to increase the number by 117% since passed. of course with additional resources i think we can do even better than that. >> the chair recognizes the gentleman from virginia, ranking member.
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>> welcome, again committed the panelists. senator grassley who is still with us and has been a long ti time, he had to be anti-gag rule. can you describe that if you are familiar with it? it was instituted to thwart a nondisclosure policy in the federal governmenand thefederalt employees from disclosing classified information without prior approval. and any information that should or could have been classified
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created basically that secret set. they were passed unanimously without exception. if one is in some ways designed in the anti-gag rule it was incorporated to the whistleblower protection act. we have the acting secretar secf the department of health and human services the very first day of the new administration writing no correspondence to public officials for example members of congress and governors -- his example, not mine -- specifically authorized by me and my designee between now and february 3.
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how does that comfort in the provisioand theprovision of ther protection act? >> the official sent 18 new rules but they canceled the rule and violate the provisions in the protection and enhancement act and the two appropriations the act of 1912 and by the way, the first amendment. >> she just said what i read from a member of the new administration violates the law and the constitution itself in a number of respects as we go from the department of justice would you conquer? >> i was a prosecutor at the time, but i have been with the
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office of the inspector general acting for the last four and a half years, and i am very familiar with that revision that requires the appropriate language be put in place in any policy or agreement that would attempt to deter the communications with congress and the wall seems quite clear in requiring that and anything that doesn't do that for false then those parameters would be in violation. >> i would even go a little bit further if these statements were these documents are issued with the disclaimer that they are required to have, they've already had a chilling effect. i would encourage the committee to continue its rigorous oversight and keep watching.
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>> what could go wrong with a chilling effect? >> if they come forward in their channels you would see more in the media to incentivize people in the proper channels and they are not going to if they won't be safe in the reprisal if they don't find that they are meaningful channels and they don't see the proper channels are being taken seriously in the agency. >> it's often lead to the useful legislation and sunshine hearings that spotlight an iss
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issue. deterring people are discouraging people from providing that information to the elected members of congress actually can preclude the ability to reform and fix problems the identified. i yield back. >> thank you to the panel for being here today. how many whistleblowers have there been for the last two years? >> they have the 2,000 that they
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have been alleged in the last two years, so about 4,000 from our office. >> is that trend up or down that we are aware of? >> that trend is up. >> and why do you think so? >> there are several factors. one is the enhanced outreach education that they've been doing throughout the government. >> ombudsman -- >> ombudsperson. [laughter] >> i do that all the time. >> there's been the increased attention through congress and the media, and it encouraged people to come forward with complaints. >> in these cases, how many were threatened by management, these
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are explicitly or implicitly? the >> we get i would say almost all of them. they have been subjected. >> and are there any positive outcomes? >> the positive outcome covers a range of issues that could be settling the case between the whistleblower pair they get their jobs back and they did some damages. maybe they get a suspension or they are able to ultimately hold thholds the termination while we investigate, so those are the kind of things that we see our favorable outcomes for the whistleblowers over the last couple of years coming to the office that ranged about 200 favorable outcomes a year coming into the office. >> do you need more staff? spin absolutel absolutely we cor resources. we are stretched to capacity.
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folks are doing a fantastic job achieving record levels of success but they are carrying the case two or three times. >> i'm from the private sector from iowa and there is a perception there as across the nation that they are overpaid and it is next to impossible to terminate a google employee. i would like to ask in the context of the whistleblowers or the retaliation, what happens to the manager, the supervisor that threatens the retaliation? often times, people sit here and they've done things that is waste, fraud and abuse. i asked did you get a bonus or a promotion, most of the time it is yes and worst case they get reassigned. where is the accountability, what happens to the supervisors that threatened the retaliation against a whistleblower?
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>> we couldn't agree more when it comes to the disciplinary actions. we have increased the rate of achieving those by over 100% but -- we are talking t talking goi3 and the years prior to 50 over the last four years. but in addition to that -- 50 out of the 2,000. although i do want to clarify one issue for the nominator of 2000. when we are talking about outcome of the number includes a number of cases for example 15% of our deferred to the agency process. it's another 12% or so we don't have jurisdiction over and then another portion of that. >> how can we increase that come into such a serious thing to retaliate against an employee
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that is trying to do something well for the taxpayers. >> there are other ways we hope tto helpto give disciplineimpos. the va alone disciplined about 40 employees and it was brought to life coming to us referring the case and they subsequently disciplined them so it doesn't always have to be a formal investigation. >> mr. chairman, i will yield back the time i don't have. >> the chair recognizes the gentleman from new jersey. >> thank you all for coming and
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your testimony. we heard multiple federal agencies issued gag orders on federal employee communications and one of those obtained by the committee appears to specifically prohibit them from speaking to congress in violation of the whistleblower protection act. now the white house press secretary sean spicer declared state department employees that utilize the dissent channel to object to the president's executive order on immigration should, quote, get with the program where they can go. do you believe that state department dissent channel is a means by which the employees can blow the whistle? >> it is the type of channel of every office in the government of direct employees to bring their concerns if they want to blow the whistle.
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it's the proper channel you were supposed to use if you are respecting the code of ethics if it is incompatible with the protection act to threaten people. >> i think you answered my second question. >> so, is it your understanding that communication on this channel should be protective? >> there could be no credible disagreement in what is written that's legally protected speech. there should be discipline against those that have tried to cancel the flow of information to congress to respond to the earlier question, it would be
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empowering judges whether administrative charges to order discipline is part of the relief when they find the act they can do it on the same record. would you say they ge did it wih the program or that sounds like a violation of the violation act on taking or threatening to the tradition against whistleblowers? >> he's not eligible because they can't take the action but he wasn't speaking for himself. they were not violating the law. >> i'm glad to hear that ansari you have to deal with that issue but i am alarmed of the tone the president said in the first days of office but he does have the
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time to make changes that will create a bitter tone. i would like to enter into the record dated january 26, 2017 from ranking member cummings to the white house counsel. those that do not comply with the whistleblower protection enhancement act. do you agree with this communication act of? >> i cannot speak directly on this issue because they do not want to prejudge a case or investigation that may come before my office. what i can do is speak more broadly about the idea that everybody shares the goal of cutting waste, fraud and abuse in the government. but in order to do that, you have to encourage whistleblowers to come forward.
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they are the ones that know about the waste, fraud and abuse. at the top it really matters in the situations and that is what is going to encourage and give employees the comfort that if they come forward if they are not going to be retaliated against. on a broad level, we have two recommendations. the first is to cure any potential chilling effect on whistleblowing, the nondisclosure agreements or policies may have had agency leadership once they are installed to make it very clear in writing to all their employees that any agreements and policies that went out to do not wipe out. >> does it set the tone affirmatively that there is whistleblower protection and that individuals do have the right to speak to congress members and there's nothing this
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administration will do that will place any daunting upon the whistleblower protection that is a yes or no and if you could give me yes or no i would appreciate it. thank you mr. chairman. >> the time is expired but you can give a brief answer each one of you. >> the top is critical and the support of whistleblowers turn out. >> i agree. >> if they want them to help, they can' can feed them to the alligators ma'am. >> i agree, and i think it's important for any incoming administration to make that clear from the beginning. >> thank you, mr. chair, for your indulgence. >> you will be pleased to hear the chair man and i are joining the chair man they are encouraging them as an ally to
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identify waste, fraud, abuse and mismanagement of the federal government. we are suggesting the white house clarify any confusion that we exist regarding the various transition memos. senator grassley offered this and these are issues that are extremely important to those of us that are committed to make into government work more effectively in the oversight process and we will ensure that the whistleblower rights to communicate directly with congress are not afraid with that i will recognize the vice chairman of the subcommittee the gentleman from georgia. >> thank you mr. chairman in each of you for being here.
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i'm not so sure that is an accurate statement but i've come to believe the three branches of the government. the whistleblowers as you did go on and say are an essential ingredient to dealing with this problem ..
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after he filed a complaint, we were able to get involved, get him temporarily put back in his job while we investigated. ultimately, he was able to get his job back full-time, he got damages for what he suffered. and the v.a. has announced the removal of the director of that facility. outcomehat is a good but that is somewhat of a typical retaliation. and outward change in their job or responsibility.
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are there more subtle retaliations? and i will open this out. you could answer relatively quick we. what is a more subtle, less obvious retaliation? lessr example, getting glamorous assignments within the agency. the ones that are not going to get you the awards or recognition for the promotions coming up. that is hard to put your finger on exact what it is but you know it is affecting your career and those can be extremely damaging and difficult to investigate as well. >> ok, well. i would refer again to the retaliatory investigations mentioned earlier, we call them the weapons of choice for retaliations against whistleblowers. it is a win win situation for
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the agency. they can take what action they want to. they may not find anything and it looks like they are just doing their due diligence. you suggested in your testimony some legislative solutions. draw the balance in providing an agency the ability to investigate and at the same time protect a whistleblower? drawwhat does the legislation k like to you? >> i believe that was in tom's testimony. >> it is not a different balance than any other personnel action. we need to terminate employees that do not perform responsibly. same with investigations. we would recommend excepting routine in a serial administrative nondiscretionary investigations from the coverage but the discretionary once are
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very, very commonly used. we have seen many become serial. it goes on indefinitely. this has a far greater chilling effect then conventional personnel actions. >> a congressional action would be -- >> it would be similar to the corporate whistleblower or state the firstwer laws or amendment. you can challenge a retaliatory investigation as a violation of the whistleblower protection act. we have a greater statute of limitations on it. cannot interfere with that necessary routine functions of government but when it is misuse -- this is the start of the
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retaliatory investigation. to shift the spotlight from the message to the messenger. to ruin them and make them an example. you can do that without ever touching the whistleblower protection act because they are defenseless until the other shoe drops, a formal act. the act never becomes relevant. the whistleblower is defenseless. >> thank you, mr. chairman. >> the chair recognizes the gentlewoman from michigan for five minutes. >> thank you, mr. chairman. month, the republicans included the holman act as part of the rules package for the 115th congress. this role a loud lawmakers to/the salary of an individual federal employee to one dollar. imagine a federal employee who
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is considering lowering the whistle on wrongdoing. even if that disclosure is protected, meaning the agency action,ake retaliatory nothing prevents congress from .lashing that employees salary mr. devine asked the other ones -- do you you think think it will have a chilling effect on the whistleblower disclosure? >> it should because it creates a deep vulnerability. it allows members of congress to engage in the same actions that would be illegal if taken by an executive branch employee who is familiar with the whistleblower's performance. it is a serious loophole that should be addressed. >> i agree.
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like the holman rule or nondisclosure agreements that might have a chilling effect on employees or might give them pause or more than pause about coming forward to expose waste, fraud, and abuse in the government -- that is something from the whistleblowers point of view is not helpful and i will leave it at that. i would certainly agree. as we have said from the outset, we want to encourage people to come forward with information. the only way we can find out what is going on and be able to address it if appropriate. people in our agencies do not feel comfortable coming forward because they fear they will suffer reprisals or some other economic consequence, that could deter them from coming forward and something that we want to stop. we get over 12,000 complaints a
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year on our hotline at doj which is just one agency. i've hundred of those in the last year were within the gambit of what we consider whistleblowers. not all of those were reprisal cases. we do see a lot of reprisals though and we see those increasing. your hise the fbi with stick in to oversee there. and that will increase. we support it expanding. but with that comes the cost. the cost of resources. it is important to do it though because we want people to come forward. anything that stops that or deters it is a bad thing. served as an eeo investigator for a federal agency. discrimination or a case that is filed, the culture of organizations based on that
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reprisal point. and if we do not manage that and make sure that we are clear that reprisal of a person whistleblowing is a victim of discrimination will not beat how the rated at an agency is extremely chilling and damaging for any organization. -- last thing i want to say i would like to hear from you ma'am. >> i agree with our co-panelists. we are deeply concerned that the holman rule can be used to retaliate against whistleblowers. unfortunately, it creates more work for the members of this committee. oversight over that rule and making sure that it is not used as retaliation against whistleblowers. i think employees of federal agencies will look to you and the house whistleblower caucus
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to see that you are conducting that oversight. i just want to say to the chairman -- it is refreshing to the party, my theeagues, are taking on banner of saying how important our whistleblowers are to the health and the trust of the american people and that we are doing our jobs. and we must continue to protect the whistleblower. thank you, and i yield back. >> i think the gentlewoman for her kind comments. the chair recognizes himself for a series of questions. let me start off by saying that for those that are whistleblowers that are watching, here today. this is something that the ranking member and i, the retaliation, we will not tolerate.
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means saying that, it that we will not forget that there are people here and in the audience and there are people here that are watching that are hoping against hope that mr. bachman that you can help them or they can get their reputation back. and sometimes, it is not even the financial aspect. of being humiliation treated the way they have been treated by a government that should and can do better. it is, i say that because real easy to have hearings and assume nothing is going to happen. that is not the way i conduct my hearings. if anything in fact this is normally a culmination of fine work at the staff. i would like to take all of the credit for their great work. and yet it is their work that brings forth the hearing but
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also has a follow-up hearing. the gentleman from virginia and i are committed to making sure that protections are there. with that being said, mr. bachman, i am concerned that a third of the whistleblowers are retaliated against. ?id i hear you correctly cases overall number of is 6000. in terms of whistleblower retaliation complaints we have received, it is 2000. >> even if we look at whistleblower retaliation, one of the things that we talk about are the chilling effects. is there any consequences to those that actually do the retaliation? i am not seeing a whole bunch other than at times a slap on the wrist or even that may be
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more than what they get. maybe a letter in the file. mr. bok and, are we seeing any of that -- mr. bachman, are we seeing any of that? >> we would like to see more disciplinary action. we want to do more. helpain focus has been to the whistleblower. when they come to us, they have been fired and we need to get them back in their job and on their feet. i do in getting them back in their job does send a message. it is not the same thing as getting the manager fired but it does send a message to the other employees that this person was protected. but here is myat concern with that. having been in the private sector for a long time, i am rewarded for those things that i get rewarded for and i do them more. and those things that i do not
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get rewarded for or i get punished for, i do not do them. and if there is neither the -- so maybe we look at this as if you have zero whistleblower retaliation events that you get some kind of recognition. i am not sure how we go about this but i can tell you that the ranking member and i were having a private conversation. the time is now. we want you to give this committee some recommendations on how we can do that. if we have senior-level managers who will continue to do this, and mr. bachman, with all due respect, you are doing a great job, but they can work you as we 1can thwart you and they try to run out the clock. and when they bring one person sending an unbelievable
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message to the other whistleblowers. the reason i know that is i get calls from agencies all across the country. they want to make sure that their number is unidentifiable and they call with aliases because they know i will do something about it. but the other problem we have is that it they are that fearful to talk to a member of congress, then we have got a systemic problem that we have got to address. i would ask -- are you all willing to give recommendations to this committee in terms of how we can incentivize or and givee the behavior me to recommendations on what you think? >> absolutely. happy to participate in that important discussion. one thing i would add that we have been doing for a while is thereg of instances where has been reprisal. we look at these reprisal cases
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and we do not have the volume that osc does. but we've look at them both in whistleblower and how they have suffered for coming forward and performing the service but we also look at the person engaged in the reprisal and whether we can show if that demonstrates inappropriate behavior. then the reprisal as somebody that was reported on that. but still there is that effect from that. and i think others hopefully they will see there are consequences for supervisors and managers. >> woof reduce say that is
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something to implement to buy from opium. >> and as of the '08 g investigation and. but if you would do that. >> and with the performance evaluation. and that is part of the supervisors and managers in to incurred a trestle blowing. the cafe big impact as well.
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and to walk the lock and then sends exactly the right message. >> that is gone or about to go out we will be there. >> into save the careers of a top priority. delvalle at whistle-blower protection is the most direct solution. it is part of the beef of those personnel practices are proven. the other alternative is to
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restore personal liability. then that congress could restore that viability. in to be little more difficult. >> i would be happy to give more recommendations but i will repeat it is incredibly important we make punishment mandatory it was in the bill last year and in to make sure they have to process. with that mandatory suspension for the first offense is that picture that
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retaliation so lot of times if they are moved up and out of the agency's. >>. >> then the protections there and the circumstances that you would be able with former employees? >> that is a wonderful question. right now as an employe e you are protected from retaliation. but if somebody retaliates you then the wpa does not cover that.
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>> if they disclose after they left as a retiree? some have come to my office afraid to share because they are afraid of potential retaliation with the clearance or retirement was. >> for example, if they blew the whistle after retirement or something like that yes that should be covered and we have taken up position recently india meet this brief any disclosure is a disclosure if you seek employment in the hold that against your that is retaliation. >> with that i would look for that clarifying language >> just to underscore your point i think we would be
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interested to look at some kind of standards for disciplinary action when somebody has been found that adjudication is important to somebody claims that simply is not true that they have a grievance and don't want to tarnish their good name so we have to be careful about that to. but the interesting thing to get at and what i get at putting somebody in the broom closet to catch on to that but that settled performance with that lack
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of promotion as these issues are cropping up in almost a sinister way in one that i worry about is ended is more insidious. >> i would agree entirely. did with those contacts the more subtle the discrimination not that this is a play for resources but they're very research intensive investigations.
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but those zero groups across the community we believe in the wessel blowers - - whistle-blowers so was not a lack of commitment. >> don't get to carry dyno one example. >> i don't play many thing is absolutely but those of those principles put also the difficulty to ferret out that discrimination. because these are important issues to tackle to work with you getting those resources effectively. >> rica it not agree more.
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if they seize something like this evidence of violation to be as quickly as possible its stops that action but it lets those people know that is day subtle form of retaliation with those outreach programs we trained damn that the smaller personnel actions. >> that insight is well taken. with a harassment to give people trading was an of
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those common tactics is having a comment i am disturbed he is not a team player regression is the cue for the brief of the council a job duties so that is silly persian and with the scope of us job duties and this should be interpreted very nearly as no public policy relevance as to whether they commit the truth as part of the assignment to roar personal initiative.
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and dad got no of we have anything to add. in to do that going forward. >> thanks for your and my any testimony. i can assure you will be followed up as our staff is natalie diligent but it tenacious though it to do that if there is no more business before the committee we are adjourned. [inaudible conversations]
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[inaudible conversations]
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>> next, live, your calls and comments on washington journal. and then it newsmakers with belt -- ben cardin, after that, the committee votes on betsy devos, the education secretary. i am a white male and i am prejudiced. is not reason is something i was taught but
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something i learned. i do not like to be forced to like people. to like peopled by example. what can i do to change to be a better american? >> that was a remarkable moment. i did not realize until i stepped off the set because there were more calls after that. how powerful it was. there was something in his voice that touched me and you could hear it. it was so authentic as he searched for the words to say to a national audience. on q&a, heather mcghee, president of the public policy organization -- was a inst on washington journal 2016 when gary called. she talked about that interaction and the follow-up. >> this was in august. we have had this racially charged time.
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donald trump's campaign and black lives matter and tragic events in baton rouge and dallas. it was really a time when people werelike -- all they seeing on television on race was bad news and here was first, a white man admitting that he was prejudiced which for people of color we all said -- finely. >> tonight, at 8:00 p.m. eastern on c-span's q&a. >> this morning, the president of the alliance for justice discusses her group's opposition to the judge's nomination to the supreme court. then former u.s. ambassador to the united nations talks about some of the foreign policy challenges facing president trump's administration. and later, the host of a podcast focusing on financial news looks at how u.s. and international
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foreign markets are reacting to president trump's first weeks in office. yourways, we will take calls and you can join the conversation on face back -- on facebook and twitter. i want to express clearly inay to the american people my administration will do everything in its power to defend and protect religious liberty in our land. ♪ president trump at last thursday's national prayer breakfast. issue of religious liberty. what does it mean to you? it is sunday morning february 5. your calls and comments. on capitol hill this week the tom price, jeff sessions, and a


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