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ENFORCEMENT-President Signs Whistleblower Protection Enhancement Act

By Mark S. Nelson, J.D.

President Barack Obama on November 27, 2012 signed into law the Whistleblower Protection Enhancement Act of 2012 (Public Law No. 112-199; Senate Report No. 112-155). The Act expands and clarifies the rights of federal employees under existing whistleblower laws that include covered disclosures, prohibited personnel practices, disciplinary actions, judicial review, nondisclosure agreements, and reporting requirements. The House passed an amended version that removed intelligence community provisions on September 28, 2012. The Senate agreed to the amended bill by unanimous consent on November 13, 2012.

Senator Daniel Akaka (D-Haw) sponsored the underlying Senate bill (S. 743), which contained reforms he had been pressing for over a decade. Akaka said by press release: "... Federal employees who risk their careers to step forward and disclose waste, fraud, and abuse save taxpayer money and make our government more efficient. They absolutely deserve our support and I am so proud that these new protections are now enacted into law."

Senator Chuck Grassley (R-Iowa), who co-authored the Senate version of the Act and co-authored the original Whistleblower Protection Act, commented via press release following the White House signing ceremony. Said Grassley: "[w]histleblowers strengthen our system of checks and balances, and that strengthens our system of representative government. It's a constant battle to make sure that these patriotic citizens who shed light on overspending, mismanagement and layers of ineffective leadership within the federal government are protected." Grassley also urged legislation to extend these new protections to whistleblowers in federal law enforcement and the intelligence community.

Significantly, Act Section 117 amends Section 3 of the Inspector General Act of 1978 to, among other things, require each inspector general to designate a whistleblower protection ombudsman to educate agency employees about their protected disclosure rights and remedies against employer retaliation. According to the Senate Report (No. 112-155, p. 32), ombudsmen will serve as intermediaries to educate employers and employees about prohibited actions and to make recommendations for resolving matters before the persons involved violate applicable laws. Ombudsmen, however, are not legal representatives for current or former employees. The ombudsman requirement also does not apply to the intelligence community or to any executive agency the president determines to principally conduct foreign intelligence or counter intelligence activities.

Additionally, a savings clause seeks to protect employees' and applicants' remedies under other federal laws. The Act is effective 30 days after enactment, except for provisions contained in Section 109.

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