Grassley Pressing for Details about Discipline Disparity between Whistleblowers and Supervisors who Retaliated

WASHINGTON - Senator Chuck Grassley, Chairman of the Senate Judiciary Committee, is pressing for answers about what appears to be an unusually low number of FBI employees disciplined for retaliating against whistleblowers.  In contrast, whistleblowers are often disciplined as reprisal for reporting wrongdoing.

Grassley said that the difference in the number of disciplinary actions points to a long standing double standard between high-ranking officials and other employees that has been a part of the culture at the FBI for years.   Grassley added that the disparity suggests that the FBI favors employees who retaliated against whistleblowers more than the whistleblowers themselves.

In a letter sent this week to FBI Director James Comey, Grassley noted that since 2004, the FBI has disciplined only five employees for retaliatory conduct, and no individual has been punished for such retaliatory conduct since 2012. Grassley contrasted those figures to the much higher number of employees who have claimed they suffered reprisal for reporting wrongdoing at the Bureau.

"This discrepancy merits continued oversight over the FBI's discipline of those who retaliate against whistleblowers, because punishing such retaliators is necessary to change the culture of the Bureau and to send a clear message that retaliation will not be tolerated," Grassley wrote to Comey.

Grassley held a hearing on March 4, 2015 about whistleblower retaliation at the FBI.  The hearing brought to light a Government Accountability Office report that the Justice Department had dismissed a large number of otherwise valid reprisal complaints from the FBI based on technicalities.  Many of these cases were thrown out because FBI employees had reported wrongdoing to their direct supervisors, which curiously does not "count" as a protected disclosure under the Justice Department's current regulations.

NOTICE OF COMMITTEE HEARING

The Senate Committee on the Judiciary has scheduled a hearing of the Subcommittee on Immigration and the National Interest entitled "Oversight of the Administration's FY 2016 Refugee Resettlement Program: Fiscal and Security Implications" for Thursday October 1, 2015 at 2:00 p.m., in Room 226 of the Dirksen Senate Office Building.

Bipartisan Group of Senators File Legislative Fix to Ensure Inspectors General Have Access to All Agency Records

WASHINGTON - United States Senators Ron Johnson, Claire McCaskill, Chuck Grassley, Joni Ernst, Tammy Baldwin, Tom Carper, John Cornyn, James Lankford, Susan Collins, Kelly Ayotte, Mark Kirk, and Barbara Mikulski filed a bipartisan substitute amendment to S. 579, the Inspector General Empowerment Act of 2015. The new language includes a provision addressing an opinion from the Department of Justice's Office of Legal Counsel, which allows the Justice Department, and potentially other agencies, to deny access to records sought by the Inspector General.

The Inspector General Act of 1978 authorizes each Inspector General to access "all records" in their agency's possession in the conduct of an oversight investigation or audit.  However, on July 20, 2015, the Office of Legal Counsel issued an opinion arguing that other provisions generally restricting the "disclosure" of certain kinds of information override the "all records" provision of the Inspector General Act.  The Office of Legal Counsel reached this conclusion despite clear and recent language enacted in response to the controversy over these very access issues. The Department of Justice's fiscal year 2015 Appropriations Act prohibited the agency from denying the Inspector General timely access to records.  The only exception was for any "express" limitation in the Inspector General Act.

The July Office of Legal Counsel opinion requires the Inspector General to obtain agency permission to access certain documents in the ordinary course of its oversight work, and reverses the presumption of the Inspector General Act that inspectors general have unfettered access to any and all information they deem necessary for effective oversight.  The broad opinion also left open the door for other agencies to rely on it to deny their inspectors general access to documents.

The opinion was met with swift opposition from Congress.  Senate leaders on the Judiciary Committee and Homeland Security and Governmental Affairs Committee, and House leaders on the Committee on the Judiciary and Committee on Oversight and Government Reform sent a letter to the Department rejecting the opinion's interpretation of the Inspector General Act and pressed the Obama administration to provide legislative language that would ensure inspectors general receive unfettered access to all agency documents. The Chairman and Ranking Member of the Commerce, Justice and Science Appropriations Subcommittee also sent a letter to the Justice Department saying that the Office of Legal Counsel's interpretation of Section 218 was completely wrong and counter to Congress's clear intent.

As a result of discussions with the inspectors general community, the Justice Department, and others, the bipartisan group of Senators have agreed on legislative language to ensure inspectors general are able to access all agency documents.  The substitute amendment amends the bipartisan S. 579, the Inspector General Empowerment Act, which was reported unanimously out of the Homeland Security and Governmental Affairs Committee earlier this year, by adding the agreed upon language on inspector general access to documents. S. 579 provides some much-needed authorities for inspectors general to ensure they can perform their watchdog responsibilities in an efficient and independent manner.

Chairman Johnson said, "I am pleased that a bipartisan group of senators came together to make clear once again that inspectors general must have unfettered access to all agency documents. I am committed to working with my colleagues to pass this commonsense bill through the Senate to ensure that all inspectors general have the authority and the statutorily mandated independence they need to perform their watchdog responsibilities."

Chairman Grassley said, "The Justice Department opinion is contrary to the law and to the reason Congress created inspectors general - an independent overseer of the executive branch.  We couldn't have been more clear last year to ensure inspectors general received access to all documents, but the law seems to have been ignored.   The action we're taking with this new legislation leaves no room for misinterpretation."

Senator McCaskill said, "This legislation would help address a troubling decision by the Justice Department that undermines our watchdogs' ability to exercise critical oversight. Inspectors General are the eyes and ears of the public, helping to guard against the waste and abuse of their tax dollars, but they can't do that job effectively without access to agency documents?so I'm pleased to work with a bipartisan group of my colleagues to help restore that access."

A copy of the substitute amendment is here.