Statement on Signing the Whistleblower Protection Act of 1989

Today I am pleased to sign S. 20, the "Whistleblower Protection Act of 1989." This bill will strengthen the protections and procedural rights available to those Federal employees, often called "whistleblowers," who report waste, fraud, or abuse in Federal programs. It will ensure that those employees will not suffer adverse personnel actions because of their whistleblowing activities.

Federal employee whistleblowers can make a valuable contribution to the Administration's commitment to ensure effective and efficient use of tax dollars by the Government. My Administration shares the view in the Congress that whistleblowers should be protected from punitive action against them in reprisal for their disclosures.

The bill I am signing today will enhance the authorities and responsibilities of the Office of Special Counsel to protect whistleblowers and other employees victimized by prohibited personnel practices. It also provides whistleblowers with a new independent right to take their cases to the Merit Systems Protection Board.

S. 20 addresses the chief constitutional concerns raised by earlier versions of this legislation. The most substantial improvement in the bill is the deletion of provisions that would have enabled the Special Counsel, an executive branch official, to oppose other executive branch agencies in court. Under our constitutional system, the executive branch cannot sue itself. Article II and Article III of the Constitution require that disputes between executive branch officials or agencies be resolved within the executive branch.

The second major improvement in the bill is its clarification of the burden of proof that an employee must meet in establishing a claim that an adverse personnel action was taken because of whistleblowing. The bill clarifies that an employee must show that whistleblowing activity was a "contributing factor" in the decision to take the personnel action. The employee must demonstrate that his or her whistleblowing actually contributed to the agency's decision to take the adverse personnel action. The agency may rebut proof that whistleblowing was a "contributing" factor in the decision by showing that it would have taken the action in the absence of any whistleblowing.

Several provisions of the bill must be construed carefully in order to avoid constitutional problems. Among these is new section 1217 of title 5, United States Code, which provides that information transmitted by the Special Counsel to the Congress "shall be transmitted concurrently to the President and any other appropriate agency in the executive branch." New section 1213(j) similarly provides that certain information that comes into the hands of the Special Counsel shall be transmitted to the President's National Security Advisor as well as specified committees in the Congress. I do not interpret these provisions to interfere with my ability to provide for appropriate prior review of transmittals by the Special Counsel to the Congress.

In signing S. 20, I wish to reaffirm my confidence in the competence and skills of our senior executive and career managers and supervisors, both civilian and military. These individuals' day-to-day devotion to duty is what makes the Government work. Although whistleblowers clearly can and do contribute to better government, these managers respond regularly to a variety of problems, including those disclosed by whistleblowers, without special statutory provisions and procedures.

I also have confidence that agency heads and the Special Counsel will help address the problems of fraud, waste, or abuse by ensuring that reprisals for whistleblowing will not be tolerated.

S. 20 will contribute to this effort, and I believe it is a constructive measure that will serve the public interest. I am pleased that the Administration was able to work in a spirit of cooperation and bipartisanship with both Houses of Congress to resolve our differences and enact this important legislation.

George Bush

The White House,

April 10, 1989.