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My view: Open government initiative: Litmus test for Obama on whistle-blowers

By Tom Devine

By Shanna Devine

For the Deseret News

Published: Thursday, Aug. 7 2014 12:00 a.m. MDT

Whistle-blowers, often revered and feared by the Obama administration, have received a special place since the 2011 initiation of the Open Government Partnership (OGP), a global transparency campaign.

Jacquelyn Martin, AP

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Whistle-blowers, often revered and feared by the Obama administration, have received a special place since the 2011 initiation of the Open Government Partnership (OGP), a global transparency campaign. Their prominence is justified. The OGP will become a magnet for cynicism unless there is safe cover for those who will make it work or fail — whistle-blowers on the front lines of fraud, waste and abuse currently sustained through secrecy and enforced by repression.

Is OGP a serious effort to build the infrastructure for cleaning up government, or just another public relations campaign? How the administration handles whistle-blower rights will be indicative of whether to take its rhetoric seriously.

The key is education and training so employees and managers know their rights and limits of authority, respectively. As a rule, neither do. Some 35 years after passage of statutory whistle-blower protections, only a token percentage of employees and managers know where the legal line is or when they’ve crossed it. Even worse, fear of retaliation actually has increased since enactment of legal “protections.” A Federal News Radio survey found that only 16 percent of federal employee-survey respondents felt protected enough to report waste, fraud or abuse.

Training for these new rights is their foundation to move from paper to reality. That may be the hardest part. It means changing deeply ingrained patterns of bureaucratic intolerance for those who challenge abuses of power. Unfortunately, training is time-consuming, expensive and difficult work, and the OGP is an unfunded mandate. Especially for training, OGP must include civil society nongovernmental organizations (NGOs) that specialize in transparency. Having labored decades to earn new rights, whistle-blower advocates are best poised to help demystify and navigate them. Whether the administration accepts our help will be a weather vane.

The administration’s track record on whistle-blower cases has been sharply contradictory, but OGP builds on policies where credit is justifiably due. President Obama is the first executive to lobby on the front lines with NGOs to strengthen whistle-blower rights. Other presidents offered public "lip service" but tried to weaken or kill these protections in backrooms. But Obama unilaterally created whistle-blower rights for intelligence community employees who work within the system, again a historic first.

Initial signs are encouraging. The U.S. Office of Special Counsel has seen a surge in agency participation of its Whistleblower Certification Program, which was previously voluntary and is now mandated under the OGP.

In June, nearly 30 agencies released their Open Government Plans, detailing two-year roadmaps. OpenTheGovernment.org and partners are monitoring agency plans through biannual Civil Society Progress Reports. Whistle-blower protection is one of three commitments to receive “substantial progress” so far. Like any carefully crafted law, however, a savvy plan on paper is only the first step. The real test lies in enforcement for new rights, and a culture shift to match the legal breakthroughs.

The Department of Justice Office of Inspector General is demonstrating leadership. A video training by its whistle-blower ombudsman breathes life into legal training by including and applying the real-life experience of a whistle-blower from the Fast and Furious scandal. The Department of Homeland Security, one of government’s largest and most scattered government agencies, is tackling the logistics of how to train Border Control and Transportation Security Administration agents who do not have traditional office jobs or regular computer access. What’s encouraging is that it no longer is a question of whether, but rather of how, to prioritize whistle-blower protections.

Last year, the Senate unanimously passed Resolution 202, establishing July 30 as National Whistleblower Appreciation Day. It aims to acknowledge and commemorate whistle-blowers and “to inform workers and the public about the legal rights of citizens of the United States to blow the whistle.”

But a paradigm shift so that it is safe for whistle-blowers “to commit the truth” will take more than a new law, resolution or government directive. Too often those “rights” are empty rhetoric not worth the paper they're written on. Paradigm shifts require marathon commitment and hard work. This commitment is worth it. Civil-society NGOs should roll up their sleeves for solidarity with whistle-blowers, the public’s eyes and ears. So far the effort has been good energy after good.

Tom Devine is legal director of the Government Accountability Project, where he has assisted more than 6,000 whistle-blowers and led passage of every major federal whistle-blower statute since 1979. Shanna Devine is legislative director of the Government Accountability Project, where she has led legislative campaigns to strengthen whistle-blowers' free speech rights since 2008. This article previously appeared in The Hill.

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