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Republican lawmakers warn HHS Secretary that memo may violate whistleblower protections

May 10th, 2017  |  Pamela Wolf

Efforts to remind the Trump Administration about whistleblower protections are still ongoing—and it’s a bipartisan effort. Most recently, Senate Judiciary Committee Chairman Chuck Grassley (R-Iowa) and House Oversight and Government Reform Committee Chairman Jason Chaffetz (R-Utah) came down hard on the Department of Health and Human Services in response to a memo instructing employees to inform the agency before communicating independently with Congress. In a May 4 letter to Secretary Tom Price, the Republican leaders criticized the memo, calling it “potentially illegal and unconstitutional.” The Trump Administration has been called out on potential whistleblower issues since even before the inauguration, when federal agency Inspectors Generals were purportedly told to start looking for other employment.

In their letter to Secretary Price, the Senators reiterated the need for whistleblower protections and asked the Secretary to issue guidance clarifying that employees have the right to communicate “directly and independently with Congress.” Grassley and Chaffetz pointed out that the memo did not include an exception for “lawful, protected communications with Congress.” The Republican lawmakers expressed concern that in its current form, employees are likely to interpret the memo “as a prohibition, and will not necessarily understand their rights.”

“These provisions are significant because they ensure that attention can be brought to problems in the Executive Branch that need to be fixed,” the lawmakers wrote. “Protecting whistleblowers who courageously speak out is not a partisan issue—it is critical to the functioning of our government.”

“In order to correct this potential violation of federal law, we request that as soon as possible you issue specific written guidance to all agency employees making them aware of their right to communicate directly and independently with Congress. Such guidance should inform employees of the whistleblower protections that apply, and make clear that the agency will not retaliate against any employee who chooses to exercise these rights. Once you have issued this guidance, please provide the Committees with a copy.”

Still a problem … This is not the first time that warnings about whistleblower protections have been raised in response to actions taken under the Trump Administration. Following reports that federal employees had been ordered not to make outward-facing statements for public consumption, including through blogs and twitter accounts, the U.S. Office of Special Counsel (OSC) on January 25 released a statement detailing its enforcement of the anti-gag order provision in the WhistleblowerProtection Enhancement Act.

Amidst mounting concerns about retaliation against whistleblowers, House Committee on Oversight and Government Reform Ranking Member Elijah Cummings (D-Md.), in a January 25 interview on “Morning Joe,” expressed concern over the purported gag order imposed on federal employees at the direction of the Trump Administration. Cummings said that the Committee relies on whistleblowers and noted that there had been some confusion over whether whistleblowers can talk to Congress. Cummings assured federal employees that they can in fact talk to Congress and that the law protects then when they do so.

On February 1, Grassley, Chaffetz, and Government Operations Subcommittee Chairman Mark Meadows (R-N.C.) sent a letter to White House Counsel Donald McGahn, urging the Trump Administration to protect whistleblowers as a means of encouraging transparency throughout the federal government. “Whistleblowers can be one of the incoming Administration’s most powerful allies to identify waste, fraud, abuse, and mismanagement in the federal government and ‘drain the swamp’ in Washington, D.C.,” the Republican lawmakers wrote.

“The White House is in a position to alleviate any potential confusion for federal employees regarding whether … recent memoranda implicate whistleblower protection laws,” the Republican lawmakers suggested. “As the new Administration seeks to better understand what problems exist in this area, this is an appropriate time to remind employees about the value of protected disclosures to Congress and inspectors general in accordance with whistleblower protection laws.”

Earlier bid to remove Inspectors General. On January 31, Cummings and Gerald E. Connolly (D-Va.), Vice Ranking Member of the House Committee on Oversight and Government Reform, also sent a letter to McGahn. Cummings and Connolly requested information about what they called “disturbing reports that officials from the Trump Transition Team threatened to remove Inspectors General after the inauguration.” Inspectors General, of course are the formal “whistleblowers” of sorts who scrutinize federal agency actions.

The Inspector General Act of 1978, passed in the wake of the Watergate scandal, is aimed at ensuring integrity and accountability in the Executive Branch. The Act created independent and objective units to conduct and supervise audits and investigations related to agency programs and operations.

The Cummings and Connolly correspondence came in response to reports that on January 13, Trump officials from various federal agencies engaged in what was seen as a coordinated campaign to “inform” Inspectors General that their positions were “temporary.” Several Inspectors General were purportedly informed that they should begin looking for other employment. Following a number of urgent calls, some of the Inspectors General were informed that the action had been overruled by more senior officials and never should have occurred, but there was no official communication in confirmation.

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