Statement of Administration Policy: S. 508 - Whistleblower Protection Act of 1987

(Revised - LA)

(Senate)
(Levin (D) MI and seven others)

The Administration fully supports efforts to provide effective protection for Federal whistleblowers, but opposes enactment of S. 508 because it contains four highly objectionable provisions that distort the necessary balance between the need to protect whistleblowers and the Government's need to manage the workforce. If S. 508 were presented to the President with those provisions, the Attorney General, the Director of the Office of Personnel Management, the Director of the Office of Management and Budget, and the Special Counsel of the Merit Systems Protection Board would recommend that he veto the bill.

The Administration recommends deletion from the bill of the following provisions, which would:

—    permit anyone claiming to be a whistleblower to be absolutely protected from discipline or removal for wrongdoing or poor performance whether or not related to the whistleblowing event. This would immunize the alleged whistleblower from legitimate disciplinary action, in complete disregard of the intent the 1978 Civil Service Reform Act;

—    change the Office of Special Counsel (OSC) from a law enforcement agency responsible for protecting all employees to a legal services agency having essentially an attorney-client relationship with the small minority of employees (including former employees and job applicants), who file complaints. OSC would have to represent any complainant regardless of the merits of the case, the rights of other employees, or the effect on merit system principles, serving neither the interests of legitimate whistleblowers nor the public;

—    divide jurisdiction for appeals from Merit Systems Protection Board (MSPB) decisions by permitting persons who allege reprisal for whistleblowing to choose between their regional circuit or the Court of Appeals for the Federal Circuit, instead of ensuring uniformity in personnel law by having all such cases heard by the Court of Appeals. S. 508 would inevitably result in conflicting decisions among the circuits, ultimately requiring resolution by the Supreme Court of issues in which it should not need to become involved; and

—    substitute the MSPB for the employing agency as the named party in certain cases, thereby seriously undermining the litigating authority of the Attorney General. it is inappropriate for the Board, a quasi-judicial body, to participate in defending its decisions.