A new law and recent activities have prompted The Office of Special Counsel to update guidance on whistleblower activities. A series of recent memos from U.S. Special Counsel Henry Kerner reiterated a common reminder to agency leaders: watch what kind of message your organization is sending to your employees about their whistleblower rights.
OSC acknowledged that legally monitoring employee communications can serve “legitimate purposes”, but it also reminded agencies that federal employees have a legal right to disclose waste, fraud, and abuse and not fear reprisal and punishment.
“The Office of Special Counsel strongly urges executive departments and agencies to evaluate their monitoring policies and practices and take measures to ensure that these policies and practices do not interfere with or chill employees from lawfully disclosing wrongdoing,” Kerner wrote in a memo.
OSC specifically reminded agency leaders that employees have the right to disclose information to Congress. “Monitoring an employee’s communication, including emails, computer files or conversations, simply because the employee made or may make a protected disclosure has a chilling effect on these lawful activities,” Kerner wrote.
In a recent memo to Justice Department leaders, Attorney General Jeff Sessions told employees that “attorneys, officers, boards, divisions, and components” shouldn’t communicate with members of Congress, committees, or their staff without advance coordination with the agency’s Office of Legislative Affairs. He said the goal of the congressional communication policy is to ensure department and executive branch interests are fully protected.
Senate Judiciary Committee Chairman Chuck Grassley asked Sessions to review the new policy and take corrective action. “Without directly addressing the rights of federal employees to communicate with Congress, the memorandum could leave the impression that the department is attempting to prevent lawful disclosures and discourage employees from exercising their statutory and constitutional rights to directly communicate with Congress.”
The Make It Safe Coalition, which includes the Government Accountability Project, Project on Government Insight, Public Citizen and Union of Concerned Scientists, all called out Session’s new policy. “When an agency unlawfully gags its employees, it threatens Congress’ ability to engage in oversight and hampers citizens’ rights to know about waste, fraud, abuse, and threats to the public’s health, safety, and liberty,” the coalition wrote to Kerner.
The Dr. Chris Kirkpatrick Whistleblower Protection Act is prompting new agency standards on training. Under this law, agencies have new requirements for training their employees and supervisors on how to deal with whistleblower complaints.
Most agencies (90%) are currently certified or registered in OSC’s previous certification program. Much of this program still applies; but agencies have a few extra steps to take to remain in compliance with OSC’s program and keep their certifications.
Agency heads must make sure new employees are trained on their whistleblower “rights and remedies” within their first 180 days on the job. They must also train their supervisors annually on how to respond to whistleblower complaints. Further, agencies should work with the Office of Personnel Management to develop supervisory performance standards for protecting whistleblower disclosures, including “the degree to which supervisory employees respond constructively when employees make protected disclosures, how supervisors take responsible actions to resolve these disclosures, and ways in which the supervisors foster an environment in which employees of the agency feel comfortable making such disclosures,” OSC said.
Agencies can suspend or remove supervisors who fail to act on a whistleblower disclosure, if the manager has committed similar offenses in the past, OSC said.