Tuesday, May 20, 2008

The GAO Strikes Back!!

On May 14, the House Agriculture Committee conducted a hearing into USDA’s "progress" in improving its treatment of minority farmers and employees. At the hearing, the GAO reported that USDA’s claims about its progress in reducing a backlog of employment or program complaints of discrimination cannot be verified, due to poor record-keeping. The Washington Post quoted Lisa Shames of the GAO, who testified that “at a basic level, the credibility of USDA’s efforts has been and continues to be undermined . . . by faulty reporting of data on discrimination complaints and disparities in . . . data.” She added. “Even such basic information as the number of complaint is subject to wide variation in . . . reports to the public and the Congress.”

According to the Post, the EEOC and GAO have repeatedly criticized USDA for taking an average of two years longer than standard to process employment complaints. This has lead to serious, though apparently unquantifiable, complaint backlogs. Even worse, according to Rep. Edolphus Towns (D -NY), USDA civil rights employees are subject to retaliation when they report discrimination. Meanwhile, John Boyd of the National Black Farmers Association said, “We think civil rights is going backwards at the department . . .They can’t tell us what’s going on with the cases. There’s no commitment whatsoever to rights. The GAO testimony supports what we’ve been saying for the past couple of years.”

USDA Civil Rights was in the news earlier this year when Civil Rights employees were ordered by managers not to speak to GAO auditors and the auditors themselves were ejected from the building. See “USDA Shuts Down Congressional Audit,” Associated Press, 2/28/2008. The thwarted auditors were seeking - wait for it - information for an ongoing audit on USDA Civil Rights and its handling of discrimination complaints. USDA OCR actually instructed employees, in writing, “not to meet with any member of the [GAO] today, or until this matter is resolved.” In writing!

USDA CR's open attempt to keep its employees from talking to GAO was simply amazing given that a hearing was already in the works. Senator Grassley announced back in January that he would hold a hearing on USDA's "progress" in shaking off its disgraceful history as the last of the "old-line" agencies. (For the uninitiated, "old-line" is code for "openly hostile to minority employees and farmers.") Not sure how the House got there first, but the question remains: what could USDA have been thinking?

The moral of this story: unless you’re Dick Cheney, don’t fight the GAO. They know the big guns on the Hill and the scuffle will end with you sitting in a hearing room having your head handed to you while the Post and the AP take notes.

A Tale of Two Branches

It’s interesting the different approaches of the Executive and Legislative branches to the whole whistleblower thing. The 110th Congress has been working for quite some time towards increasing the protections available to federal employees who make protected disclosures and out their federal employers as having violated some law. The Whistleblower Protection Enhancement Act (H.R. 985) is intended to strengthen protections which are supposed to be in the Whistleblower Protection Act but have been significantly eroded by Federal Circuit case law over the years. The House version is excellent, including protections for:

(1) national security whistleblowers at the FBI and intelligence agencies;

(2) government contractors; and

(3) federal baggage screeners;

(4) jury trials for a fair day in court; and

(5) reinforced protections for federally-funded scientists.

The House passed H.R. 985 in March 2007 and the Senate passed a somewhat less impressive version of the same legislation (S.274) unanimously in December 2007. Yay, Congress! The bill, which has been hatching for the last eight years, is now in conference committee. Presumably, at some point, it will emerge and will go to President Bush. Who will then veto it.

Why? Good question. This administration’s hostility to whistleblower rights is both totally irrational and quite startling. Congress earlier cleverly packaged some defense contractor whistleblower protections in H.R. 4986 - the National Defense Authorization Act for Fiscal Year 2008 - which the president could hardly veto. Section 846 of the NDAA08 would protect employees of defense contractors when they report fraud to Congress, an inspector general, the GAO, or a DOD employee charged with overseeing contracts. Who could possibly disagree with that?

The Decider, that’s who. Unfortunately, the President had recourse to one of his infamous and almost certainly unconstitutional signing statements. The signing statement for H.R. 4986 reads, in pertinent part:

Provisions of the Act, including sections 841, 846, 1079 and 1222, purport to impose
requirements that could inhibit the President’s ability to carry out his constitutional
to take care that the laws be faithfully executed, to protect national security, to
supervise the
executive branch and to execute his authority as Commander in Chief. The
executive branch
shall construe such provisions in a manner consistent with the
constitutional authority of the

Got that? No matter the plain language of the statute that was enacted by Congress consistent with all constitutional requirements. The Executive Branch will not enforce it.

Umm, how can they do that? Again, good question.

(Thanks to the Whistleblower Protection Blog for reporting this issue.)

Unsurprisingly, elsewhere in the Executive Branch, whistleblowers are having a hard time of it under the current state of the law. On March 25, a group called Public Employees for Environmental Responsibility (PEER) released its analysis all of the decision by Labor Secretary Elaine Chao’s Administrative Review Board (ARB) from 1996 through 2006 under the Whistleblower Provisions of the Clean Air Act, Safe Drinking Water Act, Superfund, Clean Water Act, Toxic Substances Control Act, Solid Waste Disposal Act and the Energy Reorganization Act. The ARB reviews all recommended decisions by non-partisan administrative law judges following evidentiary hearings into each whistleblower’s claim.

Our readers will no doubt be shocked to learn that reversals of pro environment whistleblower decisions rose 250% during the Bush years. PEER reports that the Bush ARB reversed 7 out of 10 pro-whistleblower decisions, in stark contrast to the Clinton ARB, which affirmed 7 out of 10. Incredible.