During their first hours controlling the House in the 116th Congress, Democrats on Jan. 3 and Jan. 4 pushed through an array of single-chamber rules changes that included creation of a long-sought Office of the Whistleblower Ombudsman.
By a 418-12 vote, the House on Thursday approved Title II of a larger resolution creating the position appointed by the chamber's speaker and supervised by the House Administration Committee to “promulgate best practices for whistleblower intake for offices of the House.” It will also “provide training for offices of the House on whistleblower intake, including establishing an effective reporting system for whistleblowers, maintaining whistleblower confidentiality, advising staff of relevant laws and policies, and protecting information provided by whistleblowers,” the resolution said.
Creation of the office—still unfunded—was spearheaded by Rep. Jackie Speier, D-Calif., the co-chair of the bipartisan House Whistleblower Protection Caucus who in 2013 set up a whistleblower hotline to ease the way for agency employees who wish to disclose wrongdoing without jeopardizing their careers.
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“The reason Congress created this office was to address common inadvertent mistakes made by untrained congressional staffers who sometimes, despite good-faith attempts to help whistleblowers, mishandle their disclosures thereby increasing the likelihood of retaliation or misdirected communications,” said Samantha Feinstein, a senior legal and international analyst at the nonprofit Government Accountability Project. That group pushed for the new office along with allies such as the Make It Safe Coalition Demand Progress.
Whistleblowers “often do not know where effectively to disclose their evidence,” Feinstein said in testimony last April. “This can delay or even compromise needed reform.”
The agencies whose employees can use the new House office—which does not require Senate or presidential approval—do not include those in the intelligence community, where whistleblower advocates have long complained about “gag orders.”
One specialist who helped plan the office was Dan Meyer, the previous whistleblower ombudsman for the intelligence community who fought unsuccessfully to keep his job in part addressing issues of communicating with Congress. “Congress cannot, now, protect its sources from reprisal by the executive branch,” he told Government Executive on Monday.
The agency that investigates whistleblower complaints governmentwide, the Office of Special Counsel, is “under resourced and overwhelmed,” said Meyer, now a partner at the Tully Rinckey law firm. And the Merit Systems Protection Board, which hears employee appeals and provides research on related issues, “has an eight-year-backlog. Inspectors general can making findings if the allegations are not about inspectors general, but they cannot provide a remedy.”
Hence, Meyer said, “This puts congressional sources in the bullseye, and the most effective tools Congress has in protecting its sources are authorization and appropriations bills” that affect agencies that take action against whistleblowers.
The new office has value as “an educational resource,” said Irvin McCullough, a national security analyst for the Government Accountability Project. But intelligence community members who wish to disclose wrongdoing continue to “run into problems” because they are often required to deal first with their agency’s congressional affairs offices, where their message gets delayed. The result, McCullough said, “is that Congress’s oversight authority is limited.”