The Department of Justice (DOJ) terminated nearly 90 percent of FBI whistleblower retaliation cases, siding with the FBI complainants in only 3 cases, according to a recent Government Accountability Office (GAO) audit.
“Whistleblowers play an important role in safeguarding the federal government against waste, fraud and abuse, but they often risk retaliation from their employers as a result of their actions,” said the GAO report.
After examining all DOJcase files for FBI whistleblower retaliation complaints DOJ closed from 2009 to 2013, GAO found limited protections for whistleblower disclosures and long delays in addressing retaliation claims, calling into question whether whistleblowers have sufficient recourse for making complaints.
DOJ closed a majority of complaints within a year, with about a third of cases rejected solely because employees did not report wrongdoing to the right official. Only a limited set of high-level officials have been designated to receive such complaints.
“FBI employees are protected if they report wrongdoing to certain high-level FBI or DOJ officials and other specified entities, and—unlike employees of other executive branch agencies—are not protected if they report wrongdoing to their supervisors,” said the report.
The report added, “DOJ officials have stated plans to partially address this by adding several more senior officials in FBI field offices to the list of individuals to whom complainants may report protected disclosures, but the timing and outcome of this stated plan are uncertain.”
For example, in 2002, former FBI agent Jane Turner filed a whistleblower against her colleagues who had stolen items from Ground Zero following the September 11, 2001 terrorist attacks. After making the complaint, Turner was placed on leave and received a “does not meet expectations” rating. She retired to avoid formal termination being placed on her record.
DOJ ultimately found in Turner’s favor, but it took 10 years to conclude the case, raising concerns over the time it takes DOJ to investigate and adjudicate FBI whistleblower retaliation complaints. As this case illustrates, GAO found that FBI guidance does not clearly warn FBI employees that disclosures within the chain of command may not be protected from retaliation.
This is not the only case that too long to adjudicate. Of the cases GAO reviewed, it took up to 4 years to close 15 complaints, and took up to 10.6 years to close the remaining 3.
“Dismissing retaliation complaints made to an employee’s supervisor or someone in that person’s chain of command leaves some FBI whistleblowers with no recourse if they allege retaliation, as our review of case files demonstrated,” said the report.
After reviewing its regulations in 2014, DOJ recommended adding more senior officials in FBI field offices to the list of designated officials who can receive whistleblower complaints, but did not recommend adding all supervisors due to the additional resources and time that would be required.
“By dismissing potentially legitimate complaints in this way, DOJ could deny some whistleblowers access to recourse, permit retaliatory activity to go uninvestigated, and create a chilling effect for future whistleblowers,” the audit report said.
Moreover, DOJ offices have not consistently complied with certain regulatory requirements in investigating whistleblower retaliation complaints. For example, DOJ does not consistently provided complainants with periodic status updates on their cases and does not always inform complainants before closing a case.
DOJ said competing priorities and case complexity affect how long it takes to issue individual decisions on whether complaints met threshold regulatory requirements.
“Effectively monitoring investigators’ compliance with such requirements could help assure complainants that their cases are making progress and that they have the information they need to determine next steps for their complaints,” the audit report stated.
GAO offered several recommendations including having the Attorney General clarify to whom FBI employees may make protected disclosures and providing parties with an estimated time frame for returning each decision. GAO also recommended involving Congress.
“Congress may wish to consider whether FBI employees should have a means to obtain corrective action for retaliation for disclosures of wrongdoingmade to supervisors and others in the employee’s chain of command who are not already designated officials,” the audit report said.
DOJ concurred with GAO’s recommendations. Commenting on the report, DOJ said it would seek to ensure “that FBI employees are not unfairly excluded from whistle-blower protection because they had disclosed information to their immediate supervisor.”
Senator Charles Grassley (R-Iowa), chairman of the Senate Judiciary Committee and a long-time advocate for whistleblowers, requested the GAO report.
“The FBI and Department of Justice, in particular, have a vested interest in investigating wrongdoing, yet when an FBI employee uncovers misconduct within the agency’s own ranks, it’s not so easy to sound the alarm without the risk of retaliation,” Grassley said in a statement. “This report confirms that reforms are needed to empower whistle-blowers at FBI and ensure they are effectively and efficiently protected against retaliation in the workplace.”