Transcripts For CSPAN3 Hearing Focuses On Whistleblower Protections 20170223

Ranking member of subcommittee for Opening Statement. Thank you, there chairman. And i know mr. Meadows will be here shortly. Federal employees who blow the whistle on waste, fraud and abuse are in the front lines in the effort to ensure that our government functions efficiently and effectively. This committee has a long history of strong bipartisan support for those whistleblowers and i want to thank the chairman, mr. Meadows, for holding todays hearing. Whistleblower protection is rooted in Civil Service protections. Due process and meritbased hiring and promotion free of discrimination, retaliation and political influence form the bedrock of the very whistleblower protections we are concerned about and have been for a long time on this commit even subcommittee. Five years ago, the bipartisan whistleblower protection enhancement act of 2012 significantly strengthened the rights of federal employees who disclose waste, fraud and abuse. This legislation marks substantial progress but as we discovered, gaps remain and we must continue to work to protect all federal employees who disclose wrongdoing. I look forward to hearing from our Witnesses Today about challenges to protecting those whistleblowers under current law such as vacancies at the mspb, loopholes for sensitive positions, retaliatory investigations as well as proposals to address those challenges. In fact, tomorrow, this committee, the oversight and government reform committee, will be marking up a bill that i cosponsored, hr657, to follow the rules act. Last year our federal court ruled that an employee who refused to obey an order is protected from retaliation only if that order violates a statute which was never the intent of the law. This bill clarifies that the whistleblower protection act as originally intended protects employees who refuse to violate a rule or regulation. It need not be a statute. Legislative changes will not be enough. Congress must provide inspectors general and the office of special counsel with the resources they need to investigate and enforce whistleblower protections under the law. For example, we have heard reports of egregious whistleblower retaliation at tsa. Osc has already taken action in some of those cases but there is a backlog. Without Additional Resources, these whistleblowers wont be protected. In fact, one hears descriptions at tsa that sound like the wild west. And a lot of cleanup has to occur there not only with whistleblowers but Performance Measurements and the like. Finally, we cant ignore the committees oversight responsibility. I was alarmed to hear news reports days after the inauguration that certain agencies had issued gag orders on certain Employee Communications. Fcertain employe communications. Ecertain employe communications. Dcertain employe communications. Ercertain employ communications. Acertain employe communications. Lcertain employe communications. Ertain Employee Communications. Rtain Employee Communications. Tain Employee Communications. Ain Employee Communications. In Employee Communications. N Employee Communications. Employee communications. One memo, issued by the acting secretary of the department of health and Human Services on the very first day in office of the new president states, i quote, no correspondence to Public Officials, that is members of congress, governors and the like, unless specifically authorized by me or my designee shall be sent between now and february 3rd. That language which ostensibly prevents an employee from speaking with members of congress on his own, appears to violate laws, however, a number of federal laws including the whistleblower protection enhancement act itself. It certainly sends a chilling message to our federal employees. Thats why i plan to send a letter to agency heads asking them what steps theyre taking to ensure that their communications to employees comply with the law. I ask my colleagues across the aisle to join in these oversight measures. Its my hope that moving forward, we can work in a bipartisan manner as we always have on this subject. We must assure that Civil Service and due process protections, the bedrock of the whistleblower protection enhancement act, remain in place and are vigorously enforced. We must provide diligent oversight to verify that agencies in this administration are implementing the protections required under the law. With that, i yield back. Welcome, mr. Chairman. I thank the gentleman from virginia and the gentleman from florida for gaveling us in. I certainly thank each of you. My apologies for being tardy. The chair notes the presence of our colleagues from the full committee of oversight and government reform. We appreciate your interest in this topic and welcome your participation today. With that, i ask unanimous consent that all members of the committee on oversight and government reform be allowed to fully participate. Hearing no objection, so ordered. Im going to go ahead in the interest of time and skip my Opening Statement and actually go with recognizing each of you and lets hear from you on that. Dont worry, from chairman. I spoke for both of us. Theres no doubt about that. Knowing that we are attached at the hip. So we will hold the record open for five legislative days for any member who would like to submit a written statement. Mr. Chairman, could i ask just a quick unanimous consent request . I have a statement from National Treasury employees union for the record. I ask unanimous consent to be entered in the record. Without objection. So ordered. Thank you, my friend. Im pleased to welcome mr. Robert storch, Deputy Inspector general at the u. S. Department of justice. Welcome. Mr. Eric bachman, deputy special counsel for litigation and Legal Affairs at the u. S. Office of special counsel. Welcome. Mr. Thomas devine, legal director at the Government Accountability project and Miss Elizabeth hempowicz, policy counsel at the project on government oversight. Welcome to you all. Pursuant to Committee Rules we ask that all witnesses be sworn in before they testify. If you will please rise and raise your right hand. Do you solemnly swear or affirm that the testimony you are about to give will be the truth, the whole truth and nothing but the truth . Please let the record reflect all witnesses answered in the affirmative. In order to allow time for discussion, we would appreciate if you limit your testimony to five minutes. Mr. Storch, before i come to you, the chair recognizes the Ranking Member from the full committee, the gentleman from maryland, mr. Cummings, for an Opening Statement. Thank you very much, mr. Chairman. I really appreciate your indulgence. I want to thank chairman meadows and Ranking Member connelly for this hearing today. Whistleblower protections are built on the foundation of our Civil Service system and its due process protections. I look forward to the testimony today on how we can continue to strengthen whistleblower laws to ensure that all federal employees who blow the whistle are protected. The topic of todays hearing is the whistleblower protection enhancement act of 2012 and it could not be a more timely subject. I was an original cosponsor of this bill which significantly expanded the protections available to government workers who risked their jobs to disclose wrongdoing, and we have had a number of them to come before us over my 21 years in this committee. Unfortunately, it appears that the Trump Administration in its first week has already violated the whistleblower protection enhancement act. Just last week, only days after President Trumps inauguration, we learned that federal agencies issued gag orders on federal Employee Communications including their communications with congress. For example, we have obtained one of these memos which was issued by the new acting secretary of the department of health and Human Services. This memo tries to prohibit federal employees from speaking to members of congress. Let me repeat that. The Trump Administration is trying to prohibit federal employees from speaking to members of congress. Something is absolutely wrong with that picture. On its face, this memo violates the whistleblower protection enhancement act because it does not include mandatory language that we in congress require to protect whistleblowers who want to report waste, fraud or abuse. We require and i quote, any disclosure policy, form or agreement, end of quote, to include a mandatory statement that it does not supersede the rights of employees, including specifically quote, communications with congress, end of quote. And we passed this unanimously. Now my understanding is that the Trump Administration first tried to deny that memo was sent to its employees. Then they reportedly sent out some kind of clarifying statement. But my understanding is that even the clarifying statement still failed to include the mandatory statement we required in the whistleblower protection enhancement act. Mr. Chairman, i ask that this committee, i ask this committee to seek and obtain all emails and other communications in the possession of anyone at hhs relating to this directive, its drafting, circulation and subsequent clarification, as well as any communications about prohibiting federal employees from speaking to congress. Will you join me in a letter to hhs and other agencies requesting those documents, mr. Chairman . Im just making a simple request, mr. Chairman. Would the gentleman from maryland repeat his request . Oh, sure. Sorry. I was otherwise engaged. Deer in the headlight look was because i had no idea what you requested. I didnt mean to catch you off guard. Mr. Chairman, you have been absolutely wonderful and a good bipartisan member and i really appreciate it. What i said, i asked the subcommittee to seek and obtain all the emails and other communications in the possession of anyone at hhs relating to a directive in the drafting, circulation and subsequent clarification as well as any communications about prohibiting federal employees from speaking to members of congress. I think that should be a nobrainer for most of us. The gentleman knows very well that regardless of who is in the white house, that the chairman believes that having open communication between members of the federal government and members of congress is something that should not be inhibited, and so certainly im open to following up and making sure that we get clarification and hopefully on this, making sure the message is loud and clear that an open and transparent government is not only something this Committee Supports but the administration supports as well. Thank you very much. I really appreciate it. Im almost finished, mr. Chairman. This is not the only action the Trump Administration has taken that could chill whistleblowers. In december, President Trumps Transition Team asked for the names of employees at the department of energy who had worked on Climate Change initiatives. Another Transition Team request was made to the state department for information regarding staffing and positions related to gender equity and violence against women. Just two days ago, white house Spokesman Sean Spicer announced that state Department Employees who voice dissent regarding President Trumps immigration order should quote, either get with the program or they can go. End of quote. To quote walter schaub, director of the office of government ethics, quote, tone from the top matters, end of quote. I fear the president s tone will discourage whistleblowers from reporting waste, fraud and abuse, exactly the opposite of what we hope to accomplish through the whistleblower protection enhancement act. Theres still time for this administration to change. In a letter i wrote with my colleague Ranking Member palone to white house counsel, we requested that the president take immediate action to rescind all policies on Employee Communications that do not comply with the whistleblower protection enhancement act. We also urged the president to issue an official statement making clear that all federal employees have the right to communicate with congress and will not be silenced or retaliated against for their disclosures. I urge the president to adopt these recommendations immediately and send a clear signal to federal employees that whistleblowers will be protected as this committee has made it clear on both sides of the aisle, we will protect whistleblowers to the nth degree. With that, mr. Chairman, i appreciate your indulgence and i yield back. I thank the gentleman. The chair is certainly committed to making sure that we have an open and transparent accountability and i think that that serves the american tax payer well regardless of party, regardless of any partisan outlook. So i look forward to working with not only the Ranking Member of the full committee but the Ranking Member of the subcommittee on that. With that, mr. Storch, i recognize you for five minutes. I apologize to some of your staff who was actually here earlier today. You are recognized for five minutes. Thank you, mr. Chairman, Ranking Member connelly and members of the subcommittee. Whistleblowers perform an Invaluable Service when they come forward with what they reasonably believe to be evidence of wrongdoing and they should never suffer reprisal for doing so. Thank you for inviting me to speak about the Important Role the officers of the inspectors general play under the wpea with regard to informing whistleblowers about their rights and protections. I have served as a whistleblower ombuds person since the program was established. In 2012. In november of 2012, it was enacted requiring the creation of such positions in the offices of all president ially appointed Senate Confirmed igs and many designated federal entity igs have such programs as well. We are responsible under the act for educating Agency Employees about the prohibitions on retaliation for making protected disclosures and informing employees who have made or are contemplating making disclosures about their rights and remedies against retaliation. The doj, oig strongly supports reauthorization of this important provision. The oigs work in this area is entirely consistent with the importance of whistleblowers as reflected in the Inspector General act itself which specifically provides for oigs to receive and investigate complaints provided by Agency Employees and to protect their confidentiality and prohibits the taking of personnel actions against them for coming to us. Just as oigs are well placed within agencies, to detect and deter waste, fraud, abuse and misconduct, whistleblowers are very much at the front lines, direct witnesses to potential wrongdoing, and they play a Critical Role in bringing forward such information. Ensuring that whistleblowers are comfortable, informed and protected is therefore of central importance to the oigs core mission. We and many of our fellow oigs carry out our role under the wpea by creating and disseminating educational materials and conducting Training Programs. At dojoig we filmed an instructal video that is now required viewing for all doj managers and supervisors and Available Online for all employees. We also prepared informational flyers that have been posted in offices throughout the department with Contact Information for the oig and the office of special counsel, which plays a central role in addressing many cases of suspected reprisal. We have worked with the fbi and other components to develop particularized Training Programs for their work forces and in the case of the fbi, to address the specific Requirements Applicable to its employees including under the recently enacted fbi wpea. We and other oigs also prepared informational brochures for contractors, subcontractors and grantees and like many of our counterparts, created a robust page on our website with a range of information regarding whistleblower rights and protections. Shortly after the passage of the wpea, we worked through the council of the inspectors general to create a working group which meets quarterly to share information, discuss best practices and Current Issues and host speakers from within and outside government. Our colleagues from osc have been active participants providing their expertise and facilitating coordination and cooperation between osc and the oigs and representatives of many other leading groups including both gap and pogo have met with us as well. The working group also has facilitated meetings with congressional members and staff to discuss these issues and we partnered with osc, osha and Congressional Staff in organizing last summers successful celebration here at the capitol of National Whistleblower appreciation day. As Congress Considers reauthorization of the ombuds provision, i would close by mentioning a couple of years that have surfaced in the working group. Ayears that have surfaced in the working group. Ryears that have surfaced in the working group. Eyears that have surfaced in the working group. Ayears that have surfaced in the working group. Areasyears that have surfaced in the working group. Areasears that have surfaced in the working group. Ars that have surfaced in the working group. Rs that have surfaced in the working group. S that have surfaced in the working group. That have surfaced in the working group. First, the work we do generally does not include much of what is often done by traditional ombudsman. Some of their activities might even be seen as inconsistent with our independent position as oigs. This may result in some confusion about our roles and i would be pleased to work with the committee to discuss possible ways to address this. Second, many of the working Group Discussions have reflected what we found at doj. Mainly, our educational activities and the underlying whistleblower reprisal investigations are resource intensive and our ability to do this along with our other responsibilities is impacted by the limitations on our available staffing and resources. Our work in this area is only expected to increase as whistleblower rights and protections are expanded and made permanent and more activities take place. Id be pleased to work with you and your staff on these issues. Thank you for the opportunity to speak with you today and id be happy to answer any questions you might have. Thank you. Thank you, so much. Mr. Bachman youre recognized for five minutes. Thank you. Good afternoon, chairman meadows, Ranking Member connolly. Thank you for the opportunity to testify today about the u. S. Office of special counsel and our enforcement of the whistle employer protection enhancement act, the wpea. My testimony will discuss the key parts, how new safeguards and suggestions on how to make the law more effective. Osc san independent agency and one of our primary missions to protect employees from whistleblower retaliation. Since it was enacted nearly five years ago the number of whistleblower retaliation has been increased by 15 and weve helped a Record Number of whistleblowers. Osc has increased the number of favorable outcomes by 150 , weve increased the disciplinary actions against retaliators by 117 and weve taken further steps to strengthen the whistleblower law through our briefs and outreach programs. These protections are important because whistleblowers are vital tool in rooting out waste, fraud and abuse in the government and have helped save hundreds of millions of taxpayer dollars. We want to thank congress and this committee for its forceful, bipartisan support. In particular, we thank representative blum for his sponsorship of hr69 to reauthorize osc which passed the house earlier this year. This committees enthusiastic backing has made our office far more effective in helping whistleblowers and we look forward to continue this productive relationship in the new congress and beyond. The wpea is landmark legislation and it has helped whistleblower retaliation by filing friend of the court briefs. Bolstering the remedies that are available to whistleblowers who win their retaliation claims and granting whistleblower protections to all whistleblowers. For example, we used our new authority to file a brief with the Supreme Court in department of Homeland Security and in a 72 decision the Supreme Court agreed with our arguments on behalf of the whistleblower and since 2012 osc has received an investigated about 23 from tsa employees which we would not have been able to investigate prior to the wpea. Another new element of the wpea is this antigag order provision which ensures that whistleblower protections supercede any agency nondisclosure agreements or policies. It requires that any nondisclosure agreement or policy include language that clearly states that the employee may still blow the whistle even if they sign the agreement or are subject to the policy. Osc has vigorously enforced this gag provision and weve obtained nearly three dozen corrective actions and issued specific guidance to agencies on this important topic. The wtea also contains two valuable provisions that are set to expire at the end of this year, the whistleblower protection Ombudsman Program and the all circuit appellate review program. Osc strongly recommends that both of these programs be made permanent. Finally, although the wpea has undeniably strengthened protections, further enhancements should be considered. For example, the wpea sets a higher evidentiary burden for disclosures that are made in the normal course of duties. Congress intended this heightened burden to apply to jobs like investigators and auditors where investigating reporting wrongdoing is an every day job function. But recent Court Decisions have applied this heightened burden to a much broader universe of jobs, jobs like teachers and purchasing agents and this risk making it hard for many federal employees to be able to prove their whistleblower retaliation claims. We recommend that congress clarify only to that small subset of federal workers who investigate and report wrongdoing as a core job function. We greatly appreciate the committees robust support for office. And for federal whistleblowers. I thank you for the opportunity to testify. And im happy to answer your questions. Thank you, mr. Bachman. Mr. Devine. Thank you. This hearing is significant because action is essential to address newly emerging threats and loopholes that obstruct or circumvent the wpeas mandate and because 2017 would be the year of truth for Unfinished Business on the due process structure to enforce the laws right. If Congress Acts effectively, after 39 years whistleblowers will have legal rights in which they can rely, a genuine shield against retaliation. 2016 continue to pattern since the wpea passage. Over the last five years have been the best and worst of times for whistleblowers. My written testimony summarizes encouraging news about closing the loopholes, Supreme Court support for the law, the office of special counsels effective track record and unprecedented impact from whistleblowers in making a difference. To illustrate the latter, Supreme Court oral arguments for air Marshal Robert mcclain who disclosures stopped tsa from going awol we argued that mr. Mcclain act today better protect the nation. Justice scalia interjected and he was successful. Its no wonder that whistleblowers are receiving more respect than ever before. Unfortunately, its a sad truth that the office of special counsel of track record 5. 2 corrective action against retaliation reflects the best option that exists. As rule employee rights under the whistleblower protection act continue to be a mirage when the first is Administrative Agency enforcement. Despite best efforts, special counsel has hampered tradeoffs that result in almost no litigation and excessive delays that unemployed whistleblowers cannot afford and that undermine the relevance of its decisions on current events. Special counsel can never be more than anecdotal source of justice that makes impressive points. To consistently achieve the x purpose, no remedial agency can substitute for due process. And unfortunately, whistleblowers are not getting it from the board. Board members have been good faith responsible stewards of the act but the hearings are conducted by administrative judges who are openly hostile to the act ruling against whistleblowers from 95 to 98 of the decisions when you combine that with osc 5 corrective action rate, whistleblowers do not have more of a token chance of justice under this law. Consider the ordeal of Kim Farrington who is an faa inspector fired after she challenged the agencys failure to issue proper training to flight attendants. In 2012 the board overturned a hostile administrative judge decision but remanned rather than reversing the. They held a hearing but never issued a decision. Who held another hearing in 2013 but again did not rule. In may 2016, ms. Farrington protested the delays to the full board antiadministrative judge promptly responded with a june decision that rejected all of her claims without even referencing the hearing audio tape. There was no transcript because the Court Reporter had died during the delays. Her case is again on appeal. But due to vacancies the board cannot issue decisions and theres no end in sight. The lack of credible due process at the mspb achilles heel. Shifting tactics have made the law less effective because its more difficult to fire employees, agencies are opening more retaliatory investigations with criminal prosecution referrals and currently there is no defense against this even uglier form of harassment. Then theres the sensitive jobs loophole. An all encompassing loophole that will subsume the entire system if congress does not act and finally theres lack of acceptance. Immediately after his victory, tsa lagged four months and assigned him to air marshal missions on flights to the mid east despite intelligence that isil is combing the identity and he was the most visible air marshal in history. After the osc intervened the agency reassigned him to an empty room with no duties. It refused to consider even routine promotions forcing him into bankruptcy. Although he continues to make impressive disclosures on security breeches. It held a processing security clearance for ten months all though required to forward it within 14 days. He is still lost by winning due to the poor attitudes. Mr. Chairman, my written testimony has a full menu of suggestions for how we can deal with these challenges. Thank you. Mr. Devine. Thank you so much for your passionate and articulate testimony and i can assure you that we will be following up in earnest some of these things or things that we were aware of, some obviously not, but working with osc and making sure that theyre success rate is greater and not laborious is something that this committee is committed to, but thank you so much. Thank you, member. Subcommittee chambers. And members of the subcommittee on government operations. Thank you for testifying me to testify today and your dedications of whistleblower protections. Five years ago Congress Passed the whistleblower protection enhancement act closing many loop holes for federal workers who blow the whistle on waste, fraud, abuse and illegality. That requires agencies to issue a statement notifying employees that statutory rights to communicate with congress and whistleblower protections supercede Agency Restrictions on disclosures or communications. In addition the wpea clarified that any whistleblower disclosure may be protected including when a Whistleblower Makes a disclosure to his or her supervisor. Even if that supervisor is involved in the wrongdoing. Similarly it clarified that a in in making a disclosure shouldnt be factored in when he or she made a disclosure. These changes provided a essential channels and prioritized disclosing wrongdoing. As being the primary public interest. Finally the law created a Pilot Program for federal employees who appeal a judgment of the merits system protection board to file their appeal in any court of appeals in u. S. Court of appeals jurisdiction. This Committee Led the charge in extending that Pilot Program two years ago and should make that right permanent. While the positive impact of this law is significant, its enforcement has not been without issue. S enforcement has not been without issue. A report released two years after the passage of the wpea revealed that only one agency out of the 15 studied was fully client with the antigag provision of the law. This important provision has been called into question as recently as last week when several agencies ordered staff to cease or limit external communications. As members of this committee have recognized these directives may violate the law. Efforts to prevent employees from communicating with congress and to the public could represent a serious threat to Public Health and safety. And congressional oversight is necessary to make sure that this important provision continues to be implemented properly. Despite broad Protection Laws like the wpea the totality protections dependent on where a whistleblower works in the government and in what capacity. The wpea afforded new and necessary protections to many federal employees when it was enacted but it excluded Intelligence Community contractors despite having a proven track record of success. Although ic contractors have some protections under president ial policy directive it is too narrow to be considered comprehensive and can be revoked at the president s discretion. Whistleblowers must have safe channels to report abuses of power that betray the publics trust. Congress has a responsibility to fill these accountability loopholes. The next round of whistleblower protection legislation must include protections for ic Intelligence Community contractors. C Intelligence Community contractors. Intelligence community contractors. Congress should consider mandatory punishment against supervisor who retaliate against whistleblowers. Without mandatory punishment there is no substantial deterrence to violating these laws. With the proper chance to present a defense and appeal a final decision. Recently passed legislation creates a minimum 12day unpaid suspension when a complaint that is a supervisor has retaliated against a whistleblower is substantiated. This should serve as a model. It is also important to undue a law whistleblower protections in cases where federal employees refuse to obey an order created by the agency. Another area of concern is the implementation of former president obamas Insider Threat program. This program was created in order to ensure responsible sharing and safeguarding of classified information. It includes a provision prohibiting the use of the program to identify or prevent lawful whistleblower disclosures. Weve repeatedly seeing Government Training materials c conflate one with terrorist like the ft. Hood and navy yards. And its generally Councils Office has implemented whistleblower training for the Intelligence Community. However, increased congressional oversight may be helpful to make sure this program isnt used improperly. Additionally the house should create a whistleblower Ombudsman Office to train Congressional Staff on working with whistleblowers and to provide assistance and advice to staff. Many of these issues that ive raised in my testimony hinge on congressional oversight. Passing stronger laws is a necessary first step but continued congressional oversight ensures that whistleblowers are championshiped and not punished. I look forward to your questions and thank you again for holding this important hearing. Thank you so much for your testimony. Ill now recognize the gentleman from florida, mr. Ross, for five minutes. Thank you. I thank the panel for being here. As we talk about the wpea it leads one to believe that it should have a dual purpose, first being a shield, a shield to protect those who have seen the wrongdoings or the corruption and allowed them the opportunities and quite frankly the incentives to report them. It should be a sword as well. It should be a sword to be able to go in and cut off the wrongdoing and enforce what needs to be done but it seems through some of this testimony that the sword has been turned back and has been turned back on the whistleblower my first question is to mr. Storch, it said that for every one whistleblower complaint that most cases theres a counter complaint against them by the person whom the complaint is lodged. Is this something that is routine for you or any other Inspector Generals to investigate as to the source or the circumstances surrounding the complaint to see if it may be a counter complaint . Thank you very much for the question. It raises important issues obviously as inspectors general we receive information in our offices from employees throughout our departments that we oversee, right, and one of the things we always take into account is the source of the information and we evaluate that as we evaluate the information. People may have lots of reasons they come forward. That doesnt in any way invalidate the information that they provide and, in fact, it can be very Important Information for us to have. So the primary thing we want to do is encourage people to be able to come forward and be comfortable coming forward knowing that theyll be protected under the wpea but will they really be protected . They make themselves subject of a counter complaint if theyre not careful and thats the protection we can nip in the bud either through cross referencing or maybe theres a logger that can be worked out. Its a difficult question and i think our colleagues from osc referred to it in their prepared statements that theyre certainly are competing interests here because we want to encourage legitimate investigations but we dont want to have investigations be used to in any way deter people from coming forward and so the question is how do you strike that balance that protects whistleblowers and encourages them to come forward and we certainly would be very happy to continue to work with osc, with you and the committee on that. That leads me to my next question, how important is subpoena power . Thank you for the question. The subpoena power for us, he we currently have under an opm rule for documents or testimony . For both, but the issue that we have thats really related issue is our access to information where we think it would be extremely helpful for congress to clarify, give a statutory direct access to all relevant information and documents and witnesses and not be subject to perhaps an incorrect assertion of Attorney Client privilege by the agency, similar to what the igs currently have, so having that ability to know what the agency knows so that we can investigate whether wrongdoing occurred is essential. If somebody files an objection to a subpoena, whats the court of competent jurisdiction there . Is it an alj . Who decides whether there should be enforcement . Where do you go . Its a cumbersome process. We need to go to the mspb. Who doesnt have a forum now. Yes. Mr. Devine pointed out has so they would not be able to move forward with that. If there was a quorum, would make the decision of whether or not to attempt to enforce that. That subpoena if still objected to would have to be enforced eventually in district courts. Yes. Lastly, mr. Bachman theres been one of the things has been that its lack of enforcement where i really think the sword should be, can you articulate in any way what additional measures of enforcement may be necessary in order to make it really effective, because as one who is a student of the law, deterrence having an impact on future behavior and future performance especially if somebody decides they dont want to have that repercussions against them, if they know what the law is and how to enforce it, any suggestions . Yes. We couldnt agree more that disciplinary actions play an importance deterrence role in the federal government. They have ripple effect, they show that managers can be held accountable. We have made a decision that we need to prioritize getting the whistleblower back on their feet and back on their job and protect them first. To the extent we can, though, i think we are proud that were able to increase the number of disciplinary actions. Of course with the Additional Resources i think we can do better than that. Look forwarded to working with you on that. I kweeld back. The chair recognizes the gentleman from virginia. I thank my friend and welcome again to our panel. Mr. Storch, do you recall that back in 1988 long time ago, then senator Chuck Grassly whos still with us in the senate been there a long time, he had something called the antigag rule. Can you describe that to us if youre familiar with it. Anyone familiar with it . Yes, mr. Devine. It was instituted in december 1988 to thwart an undisclosure policy being ordered through the federal government that prevented the employees from disclosing classifiable information. Without prior approval. Since classifiable is designed as any information that could or should have been classified they created a back door official secrets hat. The restrictions on funding to implement or enforce that were passed unanimously without exception through the time of the wpea when congress codified those rights. And it was in some ways designed, was it not well, that antigag rule even was ultimately incorporated into the whistleblower protection act is that correct. Yes, sir. And so let me ask you this, we have the acting secretary of the department of health and Human Services on the very first day of the new administration writing, quote, no correspondence to Public Officials for example, members of congress and governors, his example not mine, unless specifically authorized by me or my designee shall be sent between now and february 3rd. How does that comport with the antigag provision of the whistleblower protection act. The official who issued the order said new team new rules but those new rules cancel the rule of law, congressman. It violates three provisions. It violates two appropriations riders, it violates the act of 1912 and, by the way, the first amendment. Other than that, its just helpful guidance. Okay. Anyone else on the panel want to comment on that. Mr. Storch . Mr. Devine has just said what i read from a member of the new administration violates the law in a number of laws and the constitution itself in a number of respects. Yes. Youre from the department of justice, would you concur . I was a prosecutor at the time of senator grassleys rule that you referred to but i have been with the office of Inspector General for our oig for the last four and a half years and im very familiar with the provision of the wpea that requires that appropriate language be put in place in any policy or agreement that would attempt to deter communications by whistleblowers, congress and the law requiring that and anything falling within those parameters would be in violation of the wpea. You would concur . I would and i would even go further. Even if these statements or these guidance documents are reissued with the disclaimer that theyre required to have theyve already had a Chilling Effect. So that, you know, i would encourage this committee to continue its rigorous oversight and keep watching. What could go wrong with the Chilling Effect . If you dont have whistleblowers feeling like they can come forward through protect the channels youll see more and more increased leaks to the media, to the press and i think you always want the strongest whistleblower protections in place because you want to incentivize people within an agency to go through that proper channels and theyre not going to if theyre not going to be safe. But theyre also not going to go through those channels if theyre meaningful channels. If they dont see that the complaints theyre making through those proper channels are being taken seriously and addressed within the agency. And one might note that this committee, historically has been the recipient of whistleblower information that has often led to useful legislation and sunshine hearings that spotlight an issue that otherwise wouldnt get coverage, so the Chilling Effect in deterring people or discouraging people from providing that information to elected members of Congress Actually can really preclude the ability to preclude reform and fix problems we identify because were not identifying them. I yield back. I thank the gentleman. The chair recognizes the gentleman from iowa, mr. Blum, for five minutes. Thank you, mr. Chairman. My questions are primarily for mr. Storch or mr. Bachman. How many whistleblowers have there been over the last two years, the last session of congress . Thank you for the question. I can tell you for osc this past year we received a total of 6,000 complaints across all of our Program Areas of those 6,000, 2,000 alleged that they had been retaliated against for blowing the whistle and thats consistent over the last two years, so. So a third of them. About 4,000 from our office. Is that trend up or down number of whistleblowers that we are aware of . That trend is up. And why do you think so . I think theres several different factors. I think number one is the enhanced outreach in education that osc, the igs, the ombudsman have been doing throughout the government. Omsbud person excuse me for that. That is whats in the law, but i think more and more agencies and employees are better informed about their rights and where to go to make these complaints. I think theres been increased attention through congress and the media on these rights and i think its encouraged more people to come forward with complaints. Of these cases, how many were threatened by management, either explicit or implicitly . Of the whittle blower retaliation almost all of them are so 2,000 of the 6,000. Yes, are saying that they have been subjected. Would you define a positive outcome . Positive outcome covers a range of issues. It could be us settling or helping to settle the case between the whistleblower and the employer where they get anywhere job back or damages for back pay if they were out of their job, maybe they get a suspension rescinded or were able to temporarily halt their termination while we investigated. So those are the types of things that we say are favorable outcome for whistleblowers over of the last couple of years coming to our office, its ranged about 200 favorable outcomes a year for them coming to our office. Do you need more staff . Absolutely. We could use more resources. We are stretched to capacity. Our folks are doing a fantastic job. Theyre achieving record levels of successes but theyre also carrying case loads that are two or three times as high as they normally would be. Im from the private sector from iowa and theres a perception there that the federal government is bloated, that the federal employees are overpaid and most importantly its next to impossible to terminate a federal employee. I know its not particularly your area of expertise but were talking about accountability. Id like to ask in the concept of whistleblowers, what happens to the manager or supervisor who threatened the retaliation, what happens . Often people sit here and theyve done things that are waste, fraud and abuse and i ask did you get a bonus, the answer is yes . Did you get a promotion . Half the time its yes. Worse case is they get assigned. What happens to supervisors who threaten retaliation against a whistleblower . What happens . Thats an excellent question and we couldnt agree more about the importance of the deterrence factor when it comes to disciplinary actions. We have increased our rate of achieving those by over 100 what kind of number we talking about. Going from 23 in the years prior to the wpea to 50 over the last four years, but in addition to that. So 50 out of 2,000 . 50 out of the 2,000 although i do want to clarify one issue on that denominator of 2,000 when were talking about that it doesnt that 2,000 number includes a number of cases for example, 15 that are actually discrimination claims which we defer to the Agency Process on that so we dont handle those. Another 12 or so we dont have jurisdiction over and then another portion of that just dont meet the statutory. How can we increase that . Its such a serious thing for a supervisor to retaliate against an employee whos trying to do well. We need to increase that number. Resources absolutely would help but i do want to add that there are other ways that we help to get discipline imposed through our disclosure process with the virginia over the last couple of years. The v. A. Alone that was brought to light by whistleblowers and us referring that case to the v. A. They subsequently blowers us referring that case to the v. A. They subsequently disciplined those employees. It can happen through our other Program Areas and it does. Once again thank you and mr. Chairman i yield back the time i do not have. I thank the gentleman from iowa. The chair recognizes the gentle woman from new jersey. Thank you, mr. Chairman. And thank you all for coming and for your testimony. We heard reports last week that multiple federal agencies issued gag orders on federal Employee Communications and one of the memos obtained by the committee appears to specifically prohibit employees from speaking to congress in violation of the whistleblower protection enhancement act and now sean spicer has declared that state Department Employees who utilize the departments dissent channel to object to the president s executive order on immigration should quote, get with the program or they can go, close quote. Mr. Devine, do you believe that the state Department Dissent Channel is a means by which the state Department Employees can blow the whistle . Yes, maam and indeed its the type of channel that the posters on the wall of every office in the government direct employees to bring their concerns if they want to blow the whistle. This is the proper channels that youre supposed to use if youre a Public Servant whos following and respecting the code of ethics. It is incompatible with the whistleblower protection act to threaten people with termination or ask them to leave because theyre doing what the code of ethics says theyre supposed to. Thank you i think you answered my second he question. So is it your understanding that communication in this manner through this dissent channel should be protected . There could be no credible disagreement that under the laws as written thats legally protected speech and there should be discipline against those who try to cancel the flow of information to congress. To respond to the earlier question, one way to change some deterrence would be empowering judges to order discipline as part of the relief when they find a violation of the whistleblower protection act. They could do it on the record instead of expecting the osc to do it for them. Would you say that if indeed White House Press secretary threatened those employees by saying that quote, get with the program or they can go, that that sounds like a potential violation of the whistleblower protection acts prohibition . Mr. Spicer didnt have hes not eligible to violate the whistleblower protection because he cant recommend or take a personnel action but he wasnt speaking for himself. Absolutely. So the people behind the policy were violating the law. So im glad to hear that and sorry to have to deal with that issue because i certainly am alarmed by the tone that trump has set in his first few days in office. He has the time to make changes that will create a better tone. Id like to enter into the record a letter dated january 26th 2017 from Ranking Member cummings and Ranking Member palone to the White House Council and i have it right here. Without objection. Thank you. This letter recommends that the president immediately rescind all policies on employees communications that do not comply with the whistleblower protection act. Mr. Bachman do you agree with this communication . Thank you for the question. And i cant speak directly on this issue because i dont want to prejudge a case or an investigation that may become before my office but what i can do is speak more broadly about the idea that everybody shares the goal of cutting waste, fraud and abuse in our government, but in order to do that you have got to encourage whistleblowers to come forward. Theyre the ones who know about that waste, fraud and abuse. And tone at the top really matters in these situations and thats whats going to encourage and give employees that comfort that if they come forward theyre not going to be retaliated against. On a broader level we have two recommendations here. The first is that to cure any potential Chilling Effect on whistleblowing that nondisclosure agreements or policies may have had, Agency Leadership once theyre installed or if theyre already installed should make it very clear in writing to all their employees that any nondisclosure agreements or policies that went out do not wipe out ranging thank you. Just really quite briefly. Do you believe that it is important that the president of the United States set the tone by stating affirmatively that there is whistleblower protection, that individuals do have the right to speak to Congress Members and that theres nothing that this administration will do that will place any daunting upon whistleblower protection, thats a yes or no and if you would each just give me a yes or no on that id appreciate it and thank you mr. Chairman. Yes, the gentlewomans time has expired but you can give a brief answer, each one of you. Yes, tone at the top is critical and support of whistleblowers is paramount. I agree. Yes, if the president wants whistleblowers to help him drain the swamp, he cant feed them to the alligators, maam. I agree and i think its important for any Incoming Administration to make that clear from the beginning. Thank you. Thank you, and thank you mr. Chairman for your indulgence. I thank the gentlewoman, youll be pleased to hear that today chairman chaffetz and i are joining chairman Chuck Grassley to send a letter to the white house encouraging it to use whistleblowers as an ally to identify waste, fraud and abuse in mismanagement of the federal gast. Government. Were suggesting that the white house clarify any confusion that may exist regarding various transition memos as they relate to the wpea or the antigag provision which senator grassley authored. These are issues that extremely important to those of us that are committed to making government work more effectively through the oversight process and we will ensure that whistleblower rights to communicate directly with congress are not impeded. With that i will recognize the vice chairman of the subcommittee, the gentleman from georgia, mr. Hieft. Thank you very much and thank each of you for being here. Mr. Bachman i think i heard you say and im not sure that you really meant this but you said everyone in government wants to deal with waste, fraud and abuse. Im not so sure that thats an accurate statement. I actually have come to more or less believe that the three real branches of our government are waste, fraud and abuse. You feel like that sometimes and its a serious problem but the whistleblowers as you did go on and say are essential ingredient to dealing with this problem. Can you give me a couple of examples of what the retaliation of these whistleblowers looks like . Certainly. We have had a number of cases recently with the v. A. Before i go into this i do want to say the v. A. Has been an excellent example of good tone at the top. I think they really have made strides to improve their protections of whistleblowers. That being said weve had a number of whistleblower retaliation complaints with them. One of them involves a employee in their puerto rico facility who blew the whistle about director of that facility was engaged in that he believed evidence of violation of law rule or regulation. Very soon after that, this employee found himself detailed to a position in which he had basically no job functions, no office and no real career path after that. After he filed a complaint with osc, we were able to get involved, get him temporarily put back into his job while we investigated. Ultimately was able to get his job back full time, get him damages for what he suffered and the v. A. Has recently announced the removal of the director of that facility. Okay. Thats a good outcome when all is said and done but thats somewhat of a typical retaliation. An outward change in their job or responsibilities, are there more settle retaliations, ill just open this up but if you could answer relatively quickly because i want to drive some where with this, what is a more subtle less obvious retaliation . For example, just getting less glamorous assignments in the agency, its hard to really put your finger on exactly what it is but you know its effecting your career and those can be extremely damaging and frankly extremely difficult to investigate as well. Okay. Id like you you are are ready go . I would refer again to the retaliatory investigations that have been mentioned earlier, we call them weapons of choice because its a winwin situation for the agency, either they find something and then they can take whatever action they want to against the whistleblower and have a reason for it or they dont find something and it just looks like they were doing their due diligence. So in your testimony, i believe you suggested some legislative solutions. What how do you draw the balance in providing an agency the ability to investigate and at the same time protect the whistleblower . What does the legislation look like to you . I believe that was in toms yes, sir. Its really not a different balance than any other personnel action. We need to terminate employees who dont perform properly. We dont want to abuse that responsibility and its the same with investigations. Wed recommend just exempting routine administrative nondiscussion from the excoverage but the discretionary ones are very, very commonly used. Theyre more chilling than the personnel action when they lead to criminal prosecutions. Even when the investigation is closed. We see a very theres another one opened two months later and it just goes on indefinitely. This has a far greater Chilling Effect than conventional personnel actions. So the congressional action would be the congressional action would be the similar to what we have in all of the corporate whistleblower laws and in many state whistleblower laws that you can challenge a retaliatory investigation as a violation of the whistleblower protection act. We agree there should be limitations on it so it it cant interfere with the routine functions of government. This is the start of almost every case of retaliation to shift the spotlight from the message to the messenger and try to destroy their credibility, ruin them and make an example. You can do that without ever touching the whistleblower protection act because theyre defenseless until the other shoe drops. If the other shoe is a prosecution refer yral, the act never becomes relevant. The whistleblower is defensive. Thank you. The chair recognizes the ms. Lawrence for five minutes. Thank you, mr. Chairman. Last month the republicans included the holeman act as part of the rules package for the 115th congress. This rule allows lawmakers to slash the salary of an individual federal employee to 1. Imagine a federal employee who is considering blowing the whistle on wrongdoing. Even if that disclosure is protected, meaning the agency cannot take retaliatory action, nothing prevents congress from slashing that employees salary. Mr. Divine asked the other ones what do you think the do you think the rule would have a Chilling Effect on the whistleblower disclosure . It should have a Chilling Effect because it creates a deep vulnerability. It allows members of congress to engage in the same actions that will be illegal if taken by an executive Branch Employee who actually is familiar with the whistleblowers performance or work. So its a serious new loophole that should be addressed. Mr. Backman . I agree. I think that anything like the holeman rule or nondisclosure agreements that might have a Chilling Effect on employees or might give somebody pause about coming forward to expose waste, fraud and abuse in the government, thats something that from a whistleblowers point of view is not helpful and ill leave it at that. Thank you. Yes, id certainly agree. As weve said i think everyone in the room has said we want to e encourage people to come forward with information. Thats the only way we can find out whats going on and address it. If people in Government Agencies dont feel comfortable come can forward whether its because they feel theyre going to suffer some economic consequences, that could deter them from coming forward. We get over 12,000 complaints. 500 are what are considered whistle blowers. Not all of those are repriceal cases, but we see a lot of repriceal and we see it increasing. We oversee the fbi and thats going to increase, which is a great thing. We support it expanding the people that fbi employees can report to, but with that comes a cost, the cost in terms of resources. Thats something we think is important to do because we want to encourage people to come forward and anything that stops that is a bad thing. I served as an investigator for a federal agency and the one thing i will say and im glad you all are saying it, the act of discrimination or a case thats filed, the culture of organization is based on that repriceal point and if we do no the manage that and make sure that were clear that a person that is a victim of discrimination will not be tolerated, it is extremely chilling and damaging for any organization. Last thing i want to say, i wanted to hear from you. I agree with my copanelists that we are deeply concerned that the holeman ruled can be used to retaliate against whistleblowers. It would be perfect legal for it to. Its not against the wpea. So unfortunately it creates more work for the members of this Committee Oversight over that rule in making sure that its not used as retaliation against whistleblowers. I think employees of federal agencies are going to look to and to the house whistleblower caucus to make sure you are conducting that oversight and making sure its not being used as a new tool to retaliate against whistleblowers. I just want to say to the chairman its refreshing to hear that the party, my colleagues, are actually taking on the banner of saying how important our whistleblowers are to the health and the trust of the American People and that we are doing our job and we must continue to protect the whistleblower. Thank you and i yield back. Thank you for your kind comments. The chair recognizes himself for a series of questions. Let me start off by saying for those that are whistleblowers that are watching here today, this is something that the Ranking Member and i, the retaliation, we will not tolerate. By saying that, it means that we wont forget there are people here in the audience, theres also people here that are watching that are hoping against hope that mr. Bachman that you can help them or they can get their reputation back and sometimes its not even the financial aspect. It is really the humiliation of being treated the way that theyve been treated by a government that should and can do better. And so i say that because its real easy to have hearings and assume that nothings going to happen. Thats not the way that i conduct my hearings. In fact, if anything, this is normally a culmination of fine, fine work by the staff. Id like to take all the credit for their great work and yet it is their work that brings forth a hearing, but also has a follow up hearing. The gentleman from virginia and i are committed to making sure that protections are there. With that being said, mr. Backman, i bac bachman i am concerned that onethird of the whistleblowers are retaliated against. Did i hear that correctly . No, the number that the Program Receives is 6,000. In terms of whistleblower retaliation complaints we receive, its 2,000. Even if we look at whistleblower retaliation, one of the things that we talk about and we talk about Chilling Effects, is there any consequences to those that actually do the retaliation . Because im not seeing a whole bunch other than at times maybe a slap on the wrist or even that may be more than they get. They get a letter in their file. Mr. Bachman, are we seeing any of that . I think we couldnt agree more that we would like to see more disciplinary actions. Weve made over 100 increase in those numbers. We want to do more. Our main focus has been to help the whistleblower. They come to us and theyve been fired. We need to get them back in their job and back on their feet. I do think getting them back on their job does send a message. Its not the same thing as getting that manager fired, but it does send a message to the other employees that this person was protected. I do get that and i understand that, but i guess heres my concern with that. Having been in the private sector for a long time im rewarded for those things i get rewarded by and i do them more and those things that i dont get rewarded for or that i get punished for, i dont do them. If there is neither the reward for Good Behavior i mean, so maybe we look at this if you have zero whistleblower retaliation events that you get some kind of recognition. Im not sure how we go about this, but i can tell you the Ranking Member and i were having a private conversation, the time is now. What i would ask of each of you to is to give this committee some recommendations on how we can do that. If weve got senior level managers who will continue to do this and, mr. Bachman, with all do respect, youre doing a great job, but they can thwart you as we do know with tsa and some of the other events that im familiar with, they thwart you and they try to run out the clock. When they are running out the clock, bringing one person back sends an unbelievable message to all those other whistleblowers. The reason i know that is i get calls from agencies all across the country and they are calling and they make sure their numbers are unidentified and they call with alias. If theyre that fearful to talk to a member of congress, we have a problem we have to address. Are you all willing to give recommendations to this committee in terms of how we can maybe incentivize or discourage the behavior and give me two recommendations on what you think . Are you willing to do that . Absolutely. Happy to participate in that important discussion. One thing i would add that weve been doing for a while and i was happen to see in the empowerment act was posting of incidents where there has been repriceal. We look at these cases both in terms of the whistleblower obviously and the harm they have suffered for coming forward and performing the service of doing that, but also we look at the person who engaged in the repricer reprisal and whether or not we can show that constitutes misconduct. We had a posting not long ago where we posted a fairly high person within the fbi who we founded engaged in reprisal against someone who had blown the whistle. That goes to another part of the department, but still hopefully theres a deterrent effect from that and very happy to see that in the empowerment act and i think others in the community do that and as more of that happens hopefully people will see there are consequences for supervisors and managers who engage in that conduct. Since you do it there at doj, would you say thats something we need to implement through opm or some directive from opm . My understanding of the ig empowerment act is now all of the igs will be reporting when they find instances of reprisal. That kind of bipasses omg. Mr. Bachman, are you willing to do that . Absolutely. One thing to point out that has had a concrete effect is including within performance evaluation so every employee gets an evaluation. We have made that part of the managers and supervisors evaluations. We think that could have a big impact as well. The second part is tone and i want to commend this committee and you and the senator for walking the walk and planning to send this letter i think sends exactly the right messages to whistleblowers. It either is gone or about to go out. So by the time we gavel out, well be there. Mr. Mr. Divine. I agree with the priorities that osc has to save the careers of the people who are being purged. Thats why i think structural reform as the ability to seek discipline of the whistleblower protection act is the most effective and direct solution, that a whistleblower should be able to seek discipline as part of the relief when a prohibited personnel practice is proven. The other alternative is to restore personal liability for constitutional violations, which historically existed, but the Supreme Court cancelled and congress could restore that liability and that would also create a deterrence. Those are good recommendations. The latter one will be much more difficult to have happen. I would be happy to give you some more recommendations after the hearing, but i will just repeat what i said in my testimony that i think its incredibly important that we make punishment for those found to have retalia retaliated agai whistleblowers mandatory. It was in the va bill last year and it went through. You have to make sure you have due process in place to make sure youre not punishing somebody who doesnt deserve it, but it sends a picture that retaliation is not acceptable and wont be rewarded. A lot of times these people who are retaliating receive bonuses, are promoted and move up and out of the agency. One final question and then ill recognize the Ranking Member. Mr. Bachman, in terms of former federal employees and the protections there, what kind of circumstances would you be able to help with former federal employees . Thats an excellent question and it identifies one of the big gaps in our enforcement areas. Right now if youre an employee or applicant for a federal position, you are protected from retaliation. However, if youve left the federal government and then somebody retaliates against you because of what you had disclosed while you were with the government, the wpea does not cover that. So right now we are not able to what about things they disclose after theyve left . So theyre a retiree. Ive had some come to my office and theyre afraid to share anything because theyre afraid of retaliation with either clearances or retirements or anything else. If that for example if they retired and then blew the whistle and then were considering being reemployed or Something Like that, yes, i think that should be covered and osc has taken that position recently that any disclosure means any disclosure regardless of whether youre an employee at time. If you then seek employment with the federal government and they hold that against you, thats whistleblower retaliation. With that, i would look to maybe some clarifying language that we could work in a legislative manner and ill recognize the Ranking Member. Just underscoring your point, mr. Meadows, i think we would be interested in trying to look at some kind of set of standards for disciplinary action when somebody is conclusively found to have retaliated against a whistleblower. Thats going to be important because i am aware of cases of the opposite, where somebody claimed to have been discriminated against and when you look at the evidence its simply not true and they either have it in their head or they have a grievance against somebody and want to tarnish their good name. So we have to be careful about that too in protecting reputations. The interesting thing to get at for me, what i hear the most about is retaliation is more subtle than that. Putting someone in a broom closet without a phone and without a window, everyone can kind of catch on to that, but its the subtle performance erosion in the evaluation and the lack of promotion that follows from that because youve got a bad evaluation or suddenly issues are cropping up. Its done cleverly and an almost sinister way to damage your career and your good name over time. I think that is one that i worry a lot about because its much harder to get at. Its harder to prove, but in some ways its even more insidious. I dont know if anyone wants to comment on that before we close the hearing. I would agree with that. I would say based on our experience where weve done these nvpinvestigations in the context, the more subtle the discrimination or the action, the more difficult it is to ferret out. I will say that it feeds into that problem because they are very resource intensive investigation. I dont know have to tell osc that. I know from our working group oigs across the community, we believe in the importance of whistleblowers. Theyre key partners in the work we do and we dont want to see them suffer reprisal. Its not a lack of commitment. There are issues with resources. I know of one example in an oig office where this occurred. Right. It was the ig doing it. Right. I dont claim anything is absolute, but i think people certainly i can speak for our office, we get and others in our working group have talked about the importance of these principals, but have talked about the difficulty of ferreting out that subtle discrimination. I bring it because i think it feeds into this issue that these are important issues that we want to be able to tackle and work with you on tackling and getting the resources so we can do it effectively. For osc we couldnt agree more on the importance of these subtle forms of retaliation and weve made it a point in our office for our complaints examining unit who are the initial front line to review these complaints, if they see Something Like this and they believe theres an evidence of a violation, we want to address this as quickly as possible because it stops the bad action from happening and it helps the whistleblower, but it lets the agency lets the folks know were looking at the little stuff too. Were not just looking at the te termination. And we go to agencies and we train them and we make sure to include that these smaller personnel actions, thats retaliation too and you cant do it. So your insight about subtle retaliation is very well taken. The whistleblower protection act shields against harassment such as refusing to give people training that would allow them to advance in their careers. One of the common tactics that i come across in a performance appri appraisal having a comic in the appraisal that mr. X is not a team player. Youre question is a cue for the importance of the briefs by the office of special counsel and the job duties portion of the whistleblower protection act. Thats the only portion that requires actual retaliation. The board has been drifting into expanding the scope of the job duties loophole. This should be interpreted very very narrowly. There is no Public Policy relevance to whether a whistleblower commits the truth as part of an assignment or a personal initiative. The same link that can cancel adverse actions for taking a personnel initiative should be there when youre just doing your job properly. I dont know if i have anything to add, however it is definite thats something were concerned about and im happy that you share that concern and plan to do more on that going forward. Mr. Chairman, thank you so much. Thank you all for your enlightening testimony. I can assure you that it will be followed up on. Our staff here is one that are not only diligent, but theyre tenacious. So in doing that, if theres no more business before the committee, the committee stands adjourned. The annual conservative political conference began this morning in washington, d. C. Our live coverage of the Program Begins at 7 00 p. M. Eastern. Youll be able to watch this on cspan. Tomorrow morning President Trump at 10 10 eastern also live on cspan. So which president s were americas greatest leaders . Cspan recently asked 91 president ial historians to rate our 43 president s in ten areas of leadership. Top billing this year went to abraham lincoln. Hes held the top spot for all three historian surveys. Three other top vote getters held their positions. Dwight eisenhower, who served in the oval office from 1953 to 1961 makes his first appearance in the cspan top five in year. Rounding out the top ten choices, harry truman, thomas jefferson, john f. Kennedy and ronald reagan. Johnson jumps up one spot to return to the top ten, but pity james buchanan, hes ranked last in all surveys. Theres bad news for Andrew Jackson as well. Our seventh president found his rating drop this year from 13 to 18, but the survey had good news for barack obama. He was placed at number 12 and george w. Bush moved three spots up to 33 overall with big gains in public persuasion and relations with congress. How did our historians rate your favorite president . Who are the leaders and the losers in each of the ten categories . You can find all this and more at our website cspan. Org. All this week on cspan 3 American History on prime time. Tonight the First World War from the National World war 1 museum and memorial, a symposium focusing on the year 1961 and well look at combat artists in the war. We look at federal programs that are risk for waste,