New whistleblower law mired in Hill row

By Shaun Waterman

UPI Homeland and National Security Editor

WASHINGTON, June 16 (UPI) -- A bill strengthening protections for federal whistleblowers that was slated for discussion by a congressional committee this week has been pulled from the schedule at the last minute amid a row about a wide-ranging exemption for homeland security employees.

The Federal Employees Disclosure Act was scheduled to be marked up Thursday by the House Committee on Government Reform.

"We wanted to talk more to the Democrats" about the bill's provisions, said Robert White, spokesman for the committee, explaining the delay.

The bill, say its drafters, is designed to enhance protections for federal employees who go outside their agencies or departments in order to reveal waste, fraud, abuse or bungling by government employees.

The Whistleblower Protection Act, which became law in 1989, created mechanisms for federal employees to report such misbehavior, and granted them protection from retaliation. But advocates say it has been gravely undermined by the way courts have interpreted it.

"There have been a series of unfavorable court decisions since the (Whistleblower Protection Act) was passed," said one congressional staffer, adding that legislation had been introduced several years in a row "to put whistleblower protections back where congress wanted them."

The bill would clarify the categories of disclosure covered and reduce the standard of proof of illicit activity that a whistleblower needs to have before they are entitled to the law's protection.

The bill would also outlaw non-disclosure agreements for federal employees that do not include exemptions for whistleblowers, or that limit other disclosures allowed under open government legislation.

Finally, it would increase the burden of proof needed to discipline managers who allegedly retaliate against those making disclosures.

But the bill would also empower the president to designate broad categories of employees as exempt from the law -- including "any executive agency or unit thereof the principal function of which is the conduct of... homeland security."

Critics say that provision actually the expands the exemptions available under the existing law, which cover the FBI, the CIA and other intelligence agencies as well as government departments involved in foreign intelligence or counter-espionage.

Lawrence Halloran, a spokesman for GOP committee member Rep. Chris Shays of Connecticut, told United Press International that Shays believed the exemption in the new bill was "too broad."

"If anything, these protections are needed more for employees of (the Department of Homeland Security) because it is still finding its feet" and has been beset by management problems, Halloran said.

A Democrat staffer added that, as drafted, the exemption could cover people working in other government departments, in addition to homeland security.

"There are offices in (the Department of) Agriculture, in (the Department of health and Human Services), all over the government, that deal with homeland security," said the staffer. "Are they all going to be exempt, too? As written, the bill gives (the president) that power."

One thing the bill doesn't include is the so-called TSA fix -- an amendment which would clarify that baggage and passenger screeners and other employees of the Transportation Security Administration are entitled to whistleblower protection.

"That amendment is needed," said Halloran, explaining that, during the passage of the law that set up the Department of Homeland Security, there had been a debate about whether its employees -- which include federal airport screeners -- should be entitled to whistleblower protections.

Halloran said that the clear sense of congress was that they should.

He added that Shays had been unaware until earlier this week that there was no TSA fix in the bill and that the homeland security exemption had been added.

"There's a lot of 'he said, she said' about those provisions" and how they had been included or excluded, he said.

Despite the contretemps, committee staff remained confident that a bill would be reported to the House floor soon.

"The bottom line is, we will get a bill," the Government Reform Committee's Deputy Chief of Staff David Marin told UPI. "Everyone on both sides of the aisle wants these enhanced protections for whistleblowers."

Marin said the committee's chairman, Rep. Tom Davis, R-Va., was open to negotiations on the exemption clause. "If this language is viewed as too broad, we can talk about that," he said.

"It is important to strike the right balance between need to protect whistleblowers and the need to protect our national security," Marin said.

But he hinted that there might be less room for maneuver on the airport screeners' issue. "We're not going to negotiate this bill in the media," he responded when asked about the TSA fix.

Davis, who took over the committee last congress, has consistently championed measures that empower the executive by increasing the flexibility they have on personnel issues. Many of these moves have met resistance from labor unions.

A similar bill, which whistleblower advocates say contains stronger protections, is being considered by the Senate, having been approved earlier this year by that chamber's Homeland Security and Governmental Affairs Committee.