Last week, Special Counsel Lerner was interviewed by The Federal Diary columnist Joe Davidson in a Washington Post article where she said she “strongly support[s]” the Whistleblower Protection Enhancement Act. Unfortunately, the article did not provide a balanced view of the WPEA, omitting any mention of it as a problematic, weakened alternative to what’s required under the circumstances.
Indeed, the persons Davidson reached out to for quotes are supportive of the legislation, whereas other prominent members of the professional whistleblower advocacy community were ignored (namely, the National Whistleblowers Center). One need not agree with or like NWC or any other critic of WPEA, but dissenters, who are almost never popular, are a critical part of a healthy process.
Because of these concerns, I reached out to Ann O’Hanlon, Director of Communications at the Office of Special Counsel, via email and a follow-up voicemail (both of which were not returned). I provided her with some examples of the flaws in this legislation:
the lack of jury trials in S. 743 and possibly H.R. 3289, the addition of summary judgment (possibly without any trial period if the H.R. 3289 version is adopted), the lack of all-circuit review for whistleblowers, and the possible loosening of evidentiary standards for agencies in district court under H.R. 3289
I then asked if the Special Counsel will reconsider her support for the current iteration of the Whistleblower Protection Enhancement Act, and if not, whether she would be willing to recommend to Congress improvements to the WPEA, either before or after its passage.
I’ll let you know if I hear anything.