Ask the Scholar
Document scope · 1 page
Scholar
Ask about this object, its catalog metadata, its source description, or the page inventory.
For page-specific OCR and visual context, open one of the page chats.
Scholar Source Context
Document identity
localId
323150398
label
Signing of "Whistle-Blower" Legislation, 4/10/89
core
doc
dtoType
document
citationUrl
pageCount
1
Source metadata
id
323150398
contentType
document
title
Signing of "Whistle-Blower" Legislation, 4/10/89
citationUrl
identifierLocal
13481-012
collections
Records of the White House Office of Speechwriting (George H. W. Bush Administration)
Speech Draft Files
imageCount
1
hasImages
yes
source
import
hasTranscription
no
Source extras
naId
323150398
levelOfDescription
fileUnit
recordType
description
ocrSource
nara-archive
Single page context
seq
1
pageIndex
0
type
document
mediaId
f59d32ec23f6981b
ocrText
Originally Processed With FOIA(s):
FOIA Number:
S
FOIA
MARKER
This is not a textual record. This is used as an
administrative marker by the George Bush Presidential
Library Staff.
Record Group/Collection:
George H.W. Bush Presidential Records
Collection/Office of Origin:
Speechwriting, White House Office of
Series:
Speech File Draft Files
Subseries:
Chron File, 1989-1993
OA/ID Number:
13481
Folder ID Number:
13481-012
Folder Title:
Signing of "Whistle-Blower" Legislation, 4/10/89
Stack:
Row:
Section:
Shelf:
Position:
G
25
6
2
1
REMARKS: SIGNING OF "WHISTLEBLOWERS"
ROOM 450
MONDAY, APRIL 10, 2 P.M.
TODAY I AM PLEASED TO SIGN S. 20, THE
"WHISTLEBLOWER PROTECTION Act OF 1989." WE USED TO
THINK OF A WHISTLEBLOWER AS A GUY IN A FUNNY CAP AND A
BLACK-AND-WHITE SHIRT WHO WAS ALWAYS THROWING DOWN A
FLAG.
- 2 -
PERHAPS THAT'S AN APT COMPARISON FOR THE BUSINESS
AT HAND; FOR A WHISTLEBLOWER IS, AFTER ALL, THE ONE WHO
CRIES "FOUL" TO WASTE, FRAUD AND ABUSE. IN SHORT, A
TRUE WHISTLEBLOWER IS A PUBLIC SERVANT OF THE HIGHEST
ORDER. I SHARE THE DETERMINATION OF THE CONGRESS THAT
WE DO EVERYTHING POSSIBLE TO ENSURE THAT THESE
DEDICATED MEN AND WOMEN SHOULD NOT BE FIRED, REBUKED OR
SUFFER FINANCIALLY FOR THEIR HONESTY AND GOOD
JUDGEMENT.
- 3 -
THIS BILL WILL GO A LONG WAY TOWARD THIS GOAL, BY
STRENGTHENING THE PROTECTIONS AND PROCEDURAL RIGHTS
AVAILABLE TO THOSE FEDERAL EMPLOYEES WHO REPORT
MISDEEDS AND MISMANAGEMENT.
TOWARD THIS END, THE BILL I AM SIGNING TODAY IS A
SIGNIFICANT IMPROVEMENT OVER LEGISLATION ENACTED BY
CONGRESS LAST YEAR.
- 4 -
INDEED, THE FACT THAT THE LEGISLATIVE AND EXECUTIVE
WORKED TOGETHER TO ELIMINATE MAJOR CONSTITUTIONAL FLAWS
IN THIS BILL IS A REFLECTION OF OUR JOINT COMMITMENT To
GOOD GOVERNMENT.
THROUGH THEIR DILIGENCE AND HARD WORK, THE ATTORNEY
GENERAL, ALONG WITH SENATOR LEVIN, CONGRESSMAN HORTON,
AND OTHERS IN THE CONGRESS WERE SUCCESSFUL IN (1)
CLARIFYING THE BURDEN OF PROOF ON EMPLOYEES;
- 5 -
(2) ELIMINATING INDEPENDENT LITIGATING AUTHORITY IN THE
OFFICE OF SPECIAL COUNSEL; AND (3) RETAINING CURRENT
LAW WHICH PROVIDES THAT THE SPECIAL COUNSEL MAY ONLY BE
REMOVED FOR INEFFICIENCY, NEGLECT OF DUTY, OR
MALFEASANCE.
THESE THREE ISSUES WERE AT THE ROOT OF LAST YEAR'S
DISAGREEMENT OVER THIS LEGISLATION. I AM TREMENDOUSLY
PLEASED THAT THESE VALID CONSTITUTIONAL CONCERNS WERE
ADDRESSED IN THE BILL THAT I AM SIGNING TODAY.
- 6 -
As A RESULT, THIS LEGISLATION WILL ENHANCE THE
AUTHORITY OF THE OFFICE OF SPECIAL COUNSEL TO PROTECT
WHISTLEBLOWERS AND OTHER EMPLOYEES VICTIMIZED BY
PROHIBITED PERSONNEL PRACTICES. WHISTLEBLOWERS WILL
ALSO NOW BE ALLOWED TO TAKE THEIR CASES TO THE MERIT
SYSTEMS PROTECTION BOARD.
- 7 -
LET ME ALSO REAFFIRM MY CONFIDENCE IN THE
COMPETENCE AND SKILLS OF OUR SENIOR EXECUTIVE AND
CAREER MANAGERS AND SUPERVISORS, BOTH CIVILIAN AND
MILITARY. LET US REMEMBER THAT MOST GOVERNMENT
MANAGERS RESPOND PROMPTLY AND EFFECTIVELY TO PROBLEMS
LIKE THOSE DISCLOSED BY WHISTLEBLOWERS EVEN WITHOUT
SPECIAL PROVISIONS OF THE LAW.
- 8 -
FINALLY, THIS BILL IS AN EXAMPLE OF HOW THE
ADMINISTRATION AND CONGRESS CAN WORK TOGETHER To
SHARPEN AND IMPROVE LEGISLATION. FOR THIS AND MANY
OTHER REASONS, I AM DELIGHTED TO NOW SIGN S-20 INTO
LAW.
# # #
McChure Insub approaved by Andy Card for
Today I am pleased to sign S. 20, the "Whistleblower Protection Sununv
Act of 1989. " We used to think of a whistleblower as a guy in a
funny cap and a black and white shirt who was always throwing
through
down a flag.
cicconi's
Perhaps that's an apt comparison for the business at hand; for a office.
whistleblower is, after all, the one who cries "foul" to waste,
fraud and abuse. In short, a true whistleblower is a public
servant of the highest order. I share the determination of the
Congress that we do everything possible to ensure that these
dedicated men and women should not be fired, rebuked or suffer
financially for their honesty and good judgment.
This bill will go a long way toward this goal, by strengthening
the protections and procedural rights available to those federal
employees who report misdeeds and mismanagement.
A
Toward this end, the bill I am signing today
is a significant
improvement over legislation enacted by Congress last year.
Indeed, the fact that the legislative and executive worked
Changes
together to eliminate major Constitutional flaws in this bill is
a reflection of our joint commitment to good government.
Through their diligence and hard work, the Attorney General,
along with Senator Levin, Congressman Horton, and others in the
Congress were successful in (1) clarifying the burden of proof on
employees; (2) eliminating independent litigating authority in
the Office of Special Counsel; and (3) retaining current law
which provides that the Special Counsel may only be removed for
inefficiency, neglect of duty, or malfeasance.
These three issues were at the root of last year's disagreement
over this legislation. I am tremendously pleased that these
Changes
valid Constitutional concerns were addressed in the bill that I
am signing today. As a result, this legislation will enhance the
authority of the Office of Special Counsel to protect
whistleblowers and other employees victimized by prohibited
personnel practices. Whistleblowers will also now be allowed to
take their cases to the Merit Systems Protection Board.
Let me also reaffirm my confidence in the competence and skills
of our senior executive and career managers and supervisors, both
civilian and military. Let us remember that most government
managers respond promptly and effectively to problems like those
disclosed by whistleblowers even without special provisions of
law.
Finally,
This bill is an example of how the Administration and Congress
can work together to sharpen and improve legislation. For this
and many other reasons, I am delighted to now sign S. 20 into
law.
REMARKS: SIGNING OF "WHISTLEBLOWERS"
ROOM 450
MONDAY, APRIL 10, 2 P.M.
TODAY I AM PLEASED TO SIGN S. 20, THE
"WHISTLEBLOWER PROTECTION AcT OF 1989." WE USED TO
THINK OF A WHISTLEBLOWER AS A GUY IN A FUNNY CAP AND A
BLACK-AND-WHITE SHIRT WHO WAS ALWAYS THROWING DOWN A
FLAG.
- 2 -
PERHAPS THAT'S AN APT COMPARISON FOR THE BUSINESS
AT HAND; FOR A WHISTLEBLOWER IS, AFTER ALL, THE ONE WHO
CRIES "FOUL" TO WASTE, FRAUD AND ABUSE. IN SHORT, A
TRUE WHISTLEBLOWER IS A PUBLIC SERVANT OF THE HIGHEST
ORDER. I SHARE THE DETERMINATION OF THE CONGRESS THAT
WE DO EVERYTHING POSSIBLE TO ENSURE THAT THESE
DEDICATED MEN AND WOMEN SHOULD NOT BE FIRED, REBUKED OR
SUFFER FINANCIALLY FOR THEIR HONESTY AND GOOD
JUDGEMENT.
- 3 -
THIS BILL WILL GO A LONG WAY TOWARD THIS GOAL, BY
STRENGTHENING THE PROTECTIONS AND PROCEDURAL RIGHTS
AVAILABLE TO THOSE FEDERAL EMPLOYEES WHO REPORT
MISDEEDS AND MISMANAGEMENT.
TOWARD THIS END, THE BILL I AM SIGNING TODAY IS A
SIGNIFICANT IMPROVEMENT OVER LEGISLATION ENACTED BY
CONGRESS LAST YEAR.
- 4 -
INDEED, THE FACT THAT THE LEGISLATIVE AND EXECUTIVE
WORKED TOGETHER TO ELIMINATE MAJOR CONSTITUTIONAL FLAWS
IN THIS BILL IS A REFLECTION OF OUR JOINT COMMITMENT TO
GOOD GOVERNMENT.
THROUGH THEIR DILIGENCE AND HARD WORK, THE ATTORNEY
GENERAL, ALONG WITH SENATOR LEVIN, CONGRESSMAN HORTON,
AND OTHERS IN THE CONGRESS WERE SUCCESSFUL IN (1)
CLARIFYING THE BURDEN OF PROOF ON EMPLOYEES;
- 5 -
(2) ELIMINATING INDEPENDENT LITIGATING AUTHORITY IN THE
OFFICE OF SPECIAL COUNSEL; AND (3) RETAINING CURRENT
LAW WHICH PROVIDES THAT THE SPECIAL COUNSEL MAY ONLY BE
REMOVED FOR INEFFICIENCY, NEGLECT OF DUTY, OR
MALFEASANCE.
THESE THREE ISSUES WERE AT THE ROOT OF LAST YEAR'S
DISAGREEMENT OVER THIS LEGISLATION. I AM TREMENDOUSLY
PLEASED THAT THESE VALID CONSTITUTIONAL CONCERNS WERE
ADDRESSED IN THE BILL THAT I AM SIGNING TODAY.
- 6 -
As A RESULT, THIS LEGISLATION WILL ENHANCE THE
AUTHORITY OF THE OFFICE OF SPECIAL COUNSEL TO PROTECT
WHISTLEBLOWERS AND OTHER EMPLOYEES VICTIMIZED BY
PROHIBITED PERSONNEL PRACTICES. WHISTLEBLOWERS WILL
ALSO NOW BE ALLOWED TO TAKE THEIR CASES TO THE MERIT
SYSTEMS PROTECTION BOARD.
- 7 -
LET ME ALSO REAFFIRM MY CONFIDENCE IN THE
COMPETENCE AND SKILLS OF OUR SENIOR EXECUTIVE AND
CAREER MANAGERS AND SUPERVISORS, BOTH CIVILIAN AND
MILITARY. LET US REMEMBER THAT MOST GOVERNMENT
MANAGERS RESPOND PROMPTLY AND EFFECTIVELY TO PROBLEMS
LIKE THOSE DISCLOSED BY WHISTLEBLOWERS EVEN WITHOUT
SPECIAL PROVISIONS OF THE LAW.
- 8 -
FINALLY, THIS BILL IS AN EXAMPLE OF HOW THE
ADMINISTRATION AND CONGRESS CAN WORK TOGETHER TO
SHARPEN AND IMPROVE LEGISLATION. FOR THIS AND MANY
OTHER REASONS, I AM DELIGHTED To NOW SIGN S-20 INTO
LAW.
###
REMARKS: SIGNING OF "WHISTLEBLOWERS"
ROOM 450
1st
MONDAY, APRIL 10, 2 P.M.
Draft
TODAY I AM PLEASED TO SIGN S. 20, THE
"WHISTLEBLOWER PROTECTION AcT OF 1989." WE USED TO
THINK OF A WHISTLEBLOWER AS A GUY IN A FUNNY CAP AND A
BLACK - AND - WHITE SHIRT WHO WAS ALWAYS THROWING DOWN
A FLAG.
- 2 -
PERHAPS THAT'S AN APT COMPARISON FOR THE BUSINESS
AT HAND; FOR A WHISTLEBLOWER IS, AFTER ALL, THE ONE WHO
CRIES "FOUL" TO WASTE, FRAUD AND ABUSE. IN SHORT, A
TRUE WHISTLEBLOWER IS A PUBLIC SERVANT OF THE HIGHEST
ORDER. I SHARE THE DETERMINATION OF THE CONGRESS THAT
WE DO EVERYTHING POSSIBLE TO ENSURE THAT THESE
DEDICATED MEN AND WOMEN SHOULD NOT BE FIRED, REBUKED OR
SUFFER FINANCIALLY FOR THEIR HONESTY AND GOOD
JUDGEMENT.
- 3 -
THIS BILL WILL GO A LONG WAY TOWARD THIS GOAL, BY
STRENGTHENING THE PROTECTIONS AND PROCEDURAL RIGHTS
- 4 -
WHISTLEBLOWERS WILL ALSO NOW BE ALLOWED TO TAKE THEIR
CASES TO THE MERIT SYSTEMS PROTECTION BOARD.
LET ME ALSO REAFFIRM MY CONFIDENCE IN THE
COMPETENCE AND SKILLS OF OUR SENIOR EXECUTIVE AND
CAREER MANAGERS AND SUPERVISORS, BOTH CIVILIAN AND
MILITARY. LET US REMEMBER THAT MOST GOVERNMENT
MANAGERS RESPOND PROMPTLY AND EFFECTIVELY TO PROBLEMS
LIKE THOSE DISCLOSED BY WHISTLEBLOWERS EVEN WITHOUT
SPECIAL PROVISIONS OF THE LAW.
- 5 -
FINALLY, THIS BILL IS AN EXAMPLE OF HOW THE
ADMINISTRATION AND CONGRESS CAN WORK TOGETHER TO
SHARPEN AND IMPROVE LEGISLATION. FOR THIS AND MANY
ORIGINAL
Document No. 022539
WHITE HOUSE STAFFING MEMORANDUM
4/5/89
DATE:
ACTION/CONCURRENCE/COMMENT DUE BY:
COB 4/6/89
SUBJECT:
S. 20 - WHISTLEBLOWER PROTECTION ACT FOR 1989
*Signing starment Attached
ACTION FYI
ACTION FYI
VICE PRESIDENT
MCCLURE
SUNUNU
NEWMAN
SCOWCROFT
PORTER
DARMAN
STUDDERT
BATES
UNTERMEYER
BREEDEN
Clerk
CARD
CICCONI
DEMAREST
FITZWATER
GRAY
HAGIN
REMARKS:
Please provide your comments/recommendations directly to my
office by close of business Thursday, April 6. Thank you.
RESPONSE:
James W, Cicconi
Assistant to the President
and Deputy to the Chief of Staff
Ext. 2702
FRESIDEN
EXECUTIVE OFFICE OF THE PRESIDENT
OFFICE OF MANAGEMENT AND BUDGET
WASHINGTON, D.C. 20503
APR 5 1989
1909 APR -5 AM 90
THE DIRECTOR
MEMORANDUM FOR THE PRESIDENT
SUBJECT: Enrolled Bill - S. 20 - Whistleblower Protection
Act of 1989
Sponsors - Levin (D) MI and 29 others
Last Day for Action
April 14, 1989 - Friday
Purpose
Extends enhanced protections to Federal employee
whistleblowers who disclose fraud, waste, or abuse in Government
activities.
Agency Recommendations
Office of Management and Budget
Approval (Signing
Statement attached)
Department of Justice
Approval (Signing
Statement attached)
Office of Special Counsel
Approval (Signing
Statement attached)
Office of Personnel Management
Approval
Discussion
S. 20, as introduced, was identical to S. 508 of the 100th
Congress, which was pocket vetoed by President Reagan on
October 26, 1988. S. 508 was vetoed on the recommendation of the
Department of Justice and the Office of Personnel Management
(OPM). As enrolled, however, S. 20 has been modified, pursuant
to a floor amendment by Senator Levin, and it is now acceptable
to Justice and OPM. The modifications to S. 20 were the result
of negotiations, primarily by Justice and OMB, with Senator
Levin, a principal sponsor of S. 20.
The Justice Department indicated its support for S. 20 as
modified by Senator Levin's floor amendment in a letter of
March 3, 1989, from Attorney General Thornburgh to Senator Levin.
Support for the amended version of S. 20 was also expressed in
Statements of Administration Policy sent to the Senate and House
before each House's vote on the bill. S. 20 passed the Senate by
a vote of 97-0, and the House by voice vote.
S. 20, like S. 508 in the 100th Congress, grants significant
new protections to whistleblowing Federal employees. The
enrolled bill is the result of several years of congressional
attempts to expand whistleblower defenses. It reflects a strong
bipartisan consensus among proponents that the prohibition
against reprisal for whistleblowing in existing law is
ineffective. The proponents believe that whistleblowers have
been penalized for their disclosures, and that increased
protection is essential to encourage disclosures of fraud, waste,
or abuse.
Background
The Civil Service Reform Act of 1978 included statutory
protection for whistleblowing as part of its reforms. The 1978
Act established reprisal by an agency against an employee for the
disclosure of fraud, waste, or abuse as one of its "prohibited
personnel practices." As noted, there is a widespread perception
in Congress that the existing law provides insufficient
protection for whistleblowers. Members of Congress have been
generally critical of the Office of Special Counsel (OSC) for
what they believe to be its insufficient dedication to the
"cause" of whistleblower protection.
The General Accounting Office (GAO), on the other hand, in a
1985 study, "Whistleblower Complainants Rarely Qualify for Office
of the Special Counsel Protection," indicated that most
allegations by whistleblowers are not well-founded. The GAO
study also concluded that the OSC appropriately did not pursue
many whistleblower complaints because they were insubstantial.
Nevertheless, congressional proponents remain convinced that
whistleblowers need more statutory protection. S. 20 reflects
the best achievable compromise between the Government's
requirements for adequate authority to manage its workforce and
the goal of protecting and encouraging legitimate whistleblowing
employees. During the 100th Congress, OMB, joined by Justice,
OPM, the OSC, and the President's Council on Integrity and
Efficiency, sought to modify the legislation to achieve a better
balance with management needs, but was largely unsuccessful in
obtaining major changes to the bill.
-2-
Current Whistleblower Provisions
Under current law, employees who believe that a personnel
action taken by their agencies (e.g., reassignment or geographic
relocation) is a reprisal for whistleblowing may seek the
assistance of the OSC to block the agency's action.
The OSC functions as the investigative and prosecutorial arm
of the Merit Systems Protection Board (MSPB). The OSC may
investigate the allegations itself, or refer the case to the
employing agency for investigation and report. The OSC may also
seek a stay of the agency personnel action to allow time to
resolve the matter administratively. If after investigation, the
OSC concludes that the employee's allegations are not
substantial, or that they are without merit, the employee has no
further recourse. If, on the other hand, the OSC believes there
is merit to the allegation, and has been unable to resolve it
administratively, it may prosecute the agency before the MSPB.
If the MSPB sustains the OSC findings, the agency may not
appeal. If the MSPB sustains the agency against the OSC, the
whistleblowing employee may appeal to the courts, but only if the
employee has joined in the OSC's prosecution before the MSPB.
According to congressional proponents, even if the OSC brings
the case to the MSPB, the employee usually cannot sustain the
reprisal allegation because of the excessively heavy burden of
proof imposed on the employee by current case law. The case law
applied by the MSPB is the so-called "Mt. Healthy test," which
was the result of a Supreme Court decision in 1977 (Mt. Healthy
City School District Board of Education V. Doyle (429 U.S. 274)).
Under the "Mt. Healthy test," in order to block the agency's
action, complaining employees must show by a preponderance of the
evidence that their whistleblowing was a "substantial" or
"motivating" factor in the agency's action. In the face of such
a showing by the employee, the agency, to prevail, must rebut by
showing by a preponderance of the evidence that it would have
taken the same action even if the employee had not made a
disclosure about fraud, waste, or abuse.
Provisions of the Enrolled Bill
A summary of the key provisions that were the basis for last
year's veto of S. 508, together with their disposition in this
enrolled bill, is provided in Attachment A to this memorandum.
The following discusses in more detail the concerns that were
the basis for the veto of S. 508 and their treatment in S. 20, as
well as other changes in S. 20 from the vetoed bill.
-3-
-- "Mt. Healthy Test"
S. 20 as introduced, like the vetoed S. 508, proposed to
codify a modified version of the Mt. Healthy test. The modified
test would have made it easier for whistleblowers to contest and
block disciplinary actions against them, and harder for agencies
to defend and sustain such actions.
Under S. 20 as introduced, employees would have had to
establish only that their whistleblowing was "a factor" (instead
of a "substantial" or "motivating" factor) in the agency's
decision in order to bar the personnel action. Agencies, to
sustain their actions, would have had to show by "clear and
convincing evidence" (a much higher level of proof than
"preponderance") that they would have taken the same action
against the employee even if there had been no whistleblowing.
The reduction in the burden of proof on employees, combined
with the substantial increase in the burden on agencies, was
cited last October in the Memorandum of Disapproval on S. 508 as
a major objection. The Memorandum expressed concern that the
Mt. Healthy language in S. 508 would have interfered
substantially with personnel management in Federal departments
and agencies.
Proponents of change in the Mt. Healthy rule are adamant that
easing the burden on employees and increasing it on agencies is
necessary to protect whistleblowers. The enrolled bill amends
the original language codifying the revised Mt. Healthy test to
clarify that the employee must show that the whistleblowing was a
"contributing" factor in the agency's action. No change is made
in the "clear and convincing evidence" standard the agencies must
meet.
Justice, in a proposed signing statement attached to its
views letter on S. 20, states that the change in the treatment of
the Mt. Healthy rule is a major improvement. OPM, on the other
hand, advises in its views letter that the change is minor and
insufficient to alleviate its serious concerns about the
difficulties the bill is likely to create for the Federal
employee disciplinary system.
-- OSC Independence and Authorities
S. 20, like S. 508, would establish the OSC as an independent
agency, apart from the MSPB. As introduced, S. 20 had proposed
to replicate for the OSC certain authorities that the MSPB now
has. These were authority for the OSC (1) to conduct its own
litigation in court against agencies or employees and (2) to
submit testimony and reports to Congress without complying with
the Executive branch legislative clearance process. In addition,
S. 20 originally authorized the OSC to seek judicial review of
certain MSPB decisions, and continued the OSC's existing
authority to enforce its own subpoenas. The bill also originally
-4-
reenacted provisions of existing law which allow the President to
remove the Special Counsel only for inefficiency, neglect of
duty, or malfeasance in office.
These provisions were strongly opposed in the Memorandum of
Disapproval on S. 508. The Memorandum stated, in part, that they
were objectionable on constitutional grounds, impinging upon the
President's constitutional authority and duty to faithfully
execute the laws, supervise and resolve disputes between his
subordinates, and recommend such measures to Congress as he
judges necessary and expedient.
As a result of the Justice Department's and OMB's
negotiations with Senator Levin, the final version of S. 20
eliminates language giving the OSC independent litigating
authority and the right to seek judicial review of certain
decisions. It also eliminates the OSC's current authority to
enforce its subpoenas. To compensate for the deletion of
authority for the OSC to seek judicial review, S. 20 includes a
new provision requiring payment of attorneys' fees of any
employee who prevails in an appeal to the courts from an MSPB
decision. Congressional supporters stated that this provision
would make it easier for individuals to appeal their own cases.
Further, in place of OSC subpoena enforcement authority, S. 20
provides that the OSC may request the MSPB to enforce the OSC
subpoenas.
The Levin floor amendment also modified the exemption for the
OSC from the legislative clearance process by deleting language
expressly prohibiting "review, clearance, or approval" of the OSC
material by "any other administrative authority." Instead, S. 20
requires that the OSC submit its testimony and reports
concurrently to Congress and the President and any Executive
branch agency. Senator Levin and Rep. Schroeder (D-CO) indicated
their belief that the amendment leaves the substance of the
exception unchanged. As explained further below, Justice
believes this provision could raise constitutional problems
unless it is construed carefully.
Senator Levin's amendment also deleted the provisions of
S. 20 that would have reenacted existing restrictions on the
President's power to remove the Special Counsel. This change has
no practical effect, as it leaves intact the restrictions in
current law.
-- Other Changes in S. 20 from S. 508
Senator Levin's floor amendment deleted two provisions that
were included in S. 508 last year at the behest of the Reagan
Administration. First, a provision was deleted that would have
allowed the OSC to intervene against a whistleblower before
the MSPB without the employee's consent under certain
circumstances. Accordingly, the bill as enrolled completely
bans OSC intervention without consent by the employee.
-5-
The second deletion concerned a new prohibition involving
disclosure by the OSC of the identity of a whistleblower without
the employee's consent. In S. 508, exceptions to the prohibition
would have been allowed if necessary (1) to carry out the OSC's
functions, or (2) because of imminent danger to public health or
safety, or imminent violation of a criminal law. The first
exception has been deleted under the enrolled bill.
Congressional proponents stated that these deletions will
help assure whistleblowers that the OSC will be on their side and
will not act against their interests.
S. 20 as enrolled also modifies a provision of S. 508 which
repeated a provision of existing law. Currently the OSC is
required to transmit information disclosed by an employee that
involves foreign intelligence or counter-intelligence
information, if the disclosure is specifically prohibited by law
or executive order, to the House and Senate Select Committees on
Intelligence. Under the enrolled bill, the OSC would also be
required to transmit such information to the President's National
Security Advisor. As discussed below, Justice advises that this
provision could cause constitutional problems, unless carefully
construed.
Finally, S. 20 would authorize appropriations of "such sums
as necessary" for the OSC for four years, FYs 1989-1992, and such
sums as necessary for the MSPB for six years, FYs 1989-1994.
These time-limited authorizations replace existing permanent
authorizations for appropriations of such sums for both agencies.
S. 508 would have provided specific annual dollar authorizations
for a shorter time period.
The provisions of the enrolled bill would become effective
90 days after the date of enactment of the bill.
Other major provisions in S. 20 that are unchanged from
S. 508 are summarized in Attachment B to this memorandum.
Agency Views
Justice, in its views letter on S. 20, states that the chief
objectionable provisions that prompted the disapproval of S. 508
last year have been deleted or amended. Accordingly, Justice
recommends that you approve S. 20 with an appropriate signing
statement. Justice advises, however, that although S. 20 does
not contain all of the many unconstitutional features of S. 508,
two provisions must be construed carefully in order to avoid
constitutional questions. This problem is addressed in the
Justice signing statement.
The first of the troublesome provisions is the one exempting
the OSC from the legislative clearance process by directing the
agency to transmit its views in reports and testimony to Congress
-6-
and the President concurrently. Justice states that if this
provision were construed to preclude Executive branch review of
the OSC's transmittals, it would be unconstitutional as violative
of the President's authority to "take care that the Laws be
faithfully executed" and to coordinate and supervise his
subordinates. Accordingly, Justice advises that it would
construe the provision as permitting Executive branch
coordination and prior review of the OSC's transmittals to
Congress.
The second problematic provision cited by Justice concerns
the requirement that the OSC transmit foreign intelligence or
counter-intelligence information to the congressional
intelligence committees and the President's National Security
Advisor. Justice states that, to avoid constitutional
difficulties, the Department would also construe this provision
as not detracting from the President's authority to review such
information prior to its transmission to Congress and as subject
to the President's constitutional claims of executive privilege.
OPM, in its letter on the enrolled bill, recommends approval
of S. 20 in view of the complex and difficult process by which it
was developed. OPM points out that S. 20 includes modifications
resulting from extensive negotiations between the Administration
and Congress, but that only a minor change was obtainable in the
"Mt. Healthy" burden-of-proof provision. As noted above, that
change does not allay OPM's strong concerns about the
difficulties this bill will likely create for the disciplinary
system for Federal personnel.
OSC recommends that you approve S. 20 since the bill is
designed to encourage conscientious Federal employees to disclose
evidence of waste, fraud, and other wrongdoing. The OSC argues
in its views letter, however, that the reasons for passage
advanced by the bill's proponents are, in many cases, not valid.
In particular, the OSC challenges the criticisms of its own past
and present activities on behalf of whistleblowers. The agency
has attached a proposed signing statement to its letter that
largely defends its record.
Conclusion and Recommendations
S. 20 reflects the result of negotiations by the Justice
Department with key members of Congress, and the Department
believes the legislation contains significant improvements over
the legislation vetoed last year. The overwhelming bipartisan
support for this legislation testifies to the strength of
congressional feeling about the need to encourage and protect
whistleblowers. Proponents of S. 20 believe it essential to the
Government's efforts to eliminate fraud, waste, or abuse from its
programs. The Administration has also publicly indicated its
support for S. 20 as passed by Congress. Accordingly, I join
with Justice, the OSC, and OPM in recommending that you approve
the enrolled bill.
-7-
A draft signing statement is attached to this memorandum for
your consideration. The statement contains edits to the Justice
draft and the addition of descriptive language and positive
statements about the bill's purposes. Justice has reviewed and
approved the revised statement.
Aims C. Dum
Richard G. Darman
Director
Enclosures
-8-
in with nus
STATEMENT BY THE PRESIDENT
& honestysim
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 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 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 Congress. We will work to ensure that such
transmittals do not undermine the Executive branch's ability to
speak with one voice to Congress.
-2-
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.
-3-
ATTACHMENT A
DISPOSITION IN 8. 20 OF MAJOR OBJECTIONABLE PROVISIONS OF 8. 508
Major Objections to S. 508
Disposition in S. 20
Noted in 10/26/88 Memorandum
of Disapproval
1. Changes in the "Mt. Healthy"
1. Clarifies burden of proof on
burden of proof test making it
employees; i.e., employee must
easier for employees to sustain,
show that whistleblowing was a
and harder for agencies to rebut,
"contributing" factor in the
an allegation that the agency's
agency's action. No change is
personnel action was an illegal
made in the standard that
reprisal for whistleblowing.
agencies must meet to sustain
Employee would have had to show
their actions.
that whistleblowing was a "factor"
in the agency's action; and
agency would have had to
establish by "clear and
convincing evidence" that it
would have taken the same action
even if there had been no
disclosure.
2. Grant of independent litigating
2. Eliminated in S. 20, along
authority to the Office of
with the OSC's current
Special Counsel (OSC) Also,
authority to seek enforcement
authority for that Office to
of its own subpoenas. S. 20
obtain judicial review of most
provides, instead, that the
decisions of. the Merit Systems
OSC may request the MSPB to
Protection Board (MSPB) in
seek enforcement of OSC
proceedings to which the
subpoenas.
Special Counsel is a party.
3. Reenactment of existing limits
3. S. 20 is silent on
on the President's power to
Presidential removal of the
remove the Special Counsel.
Special Counsel, so the
(Current law provides that
limitations in existing law
the Counsel may be removed
continue.
only for inefficiency, neglect
of duty, or malfeasance in
office.)
4. Exemption of the OSC from the
4. Revised provision omits the
Executive branch legislative
explicit prohibition on
clearance process, including
review, clearance, or
specific language barring
approval by any Executive
"review, clearance, or approval"
branch agency. Instead, it
by any Executive branch agency
substitutes a requirement for
of the OSC's reports, testimony
the OSC to transmit reports,
or other information transmitted
testimony, or other
to Congress.
information concurrently to
the President and Congress.
ATTACHMENT B
OTHER MAJOR PROVISIONS IN S. 20 THAT
WERE ALSO INCLUDED IN S. 508
S. 20 would add several new substantive and procedural
changes affecting whistleblowers and, in many cases, all
employees adversely affected by a prohibited personnel practice.
These include changes which would:
-- give whistleblowers the right to take their cases directly
to the Merit Systems Protection Board (MSPB) if the Office
of Special Counsel (OSC) does not pursue their case or
does not act on their allegations within 120 days;
-- allow whistleblowers to request the MSPB to issue a "stay"
to prevent their agencies from carrying out a proposed
personnel action against them;
-- grant whistleblowers the right to seek judicial review of
an adverse MSPB decision;
-- give the function of the OSC a new emphasis by specifying
in the bill's preamble that the OSC's "primary purpose" is
to protect employees, "especially whistleblowers," from
prohibited personnel practices;
-- redefine the prohibited personnel practice of reprisal for
whistleblowing to make clear that agencies are prohibited
from taking action against an employee because of a
whistleblowing disclosure, regardless of the agencies'
motive;
-- make it a prohibited personnel practice for employing
agencies to take action or threaten reprisals against
employees, including whistleblowers, who (1) cooperate
with agency Inspectors General or the OSC, (2) testify in
any Government proceeding, or (3) refuse to obey an order
that requires them to violate a law;
-- give all employees, including whistleblowers, who prevail
in the first stage of an appeal at the regional level of
the MSPB the right to be retained in their jobs, and thus
in pay status, while their agencies appeal the case;
-- make mandatory the payment of attorneys' fees and other
reasonable costs to all employees, including
whistleblowers, who prevail before the MSPB in an
allegation of prohibited personnel practice;
-- bar the OSC from responding to a loyalty and security
check on any employee, including whistleblowers, who makes
an allegation of a prohibited personnel practice unless
the security clearance involves a "Top Secret"
classification. (The Reagan Administration attempted
without success to change this provision to include access
at the "Secret" level. The OSC, however, receives such
requests infrequently. ) ;
-- give whistleblowers who are the victims of agency reprisal
employment preference in reassignment to a position in
another agency; and
-- allow the MSPB to be substituted for the employing agency
as a party to an appeal where the issues involved relate
only to the MSPB's jurisdiction or procedures, not to the
merits of the personnel action that give rise the case.
(The Reagan Administration opposed substitution of the
MSPB for the agency as improper for a quasi-judicial body.
As a result, the substitution was limited, as described,
to matters of jurisdiction and procedures.)
-2-
Document No. 024399SS
2462
7426
WHITE HOUSE STAFFING MEMORANDUM
4/7/89
4/7/89 5:00 PM
DATE:
ACTION/CONCURRENCE/COMMENT DUE BY:
PRESIDENTIAL REMARKS: SIGNING OF "WHISTLEBLOWER" LEGISLATION
SUBJECT:
ACTION FYI
ACTION FYI
VICE PRESIDENT
MCCLURE
SUNUNU
NEWMAN
SCOWCROFT
PORTER
DARMAN
STUDDERT
BATES
UNTERMEYER
BREEDEN
ROGERS
WINSTON
CARD
CICCONI
PINKERTON
DEMAREST
FITZWATER
GRAY
HAGIN
REMARKS:
Please forward any comments directly to Chriss Winston,
Rm. 122, x2930, no later than 5:00 TODAY, Friday, April
7, 1989, with an info copy to my office. Sorry for the
short turnaround. Thank you.
RESPONSE: TO: Chriss Winston
April 10, 1989
The NSC staff concurs 89 in the V68 attached statement.
Brent R6 for Scowcroft
so
James W. Cicconi
Assistant to the President
and Deputy to the Chief of Staff
CC: James Cicconi
Ext. 2702
(Davis)
1939 APR 120
4/7/89/noon
Draft: One
Title: whistle
PRESIDENTIAL REMARKS: SIGNING OF "WHISTLEBLOWERS'
Room 450
MONDAY, APRIL 10, 2 p.m.
Today I am pleased to sign S. 20, the "Whistleblower
Protection Act of 1989." You know, when I was growing up, a
whistleblower was a guy in a funny hat and a black-and-white
shirt who was always throwing down a flag.
Perhaps that's an apt comparison. A whistleblower is, after
all, the one who cries "foul" to waste, fraud and abuse. In
short, a true whistleblower is a public servant of the highest
order. I share the determination of the Congress that these
dedicated men and women should not be fired, rebuked or suffer
financially for their honesty and good judgment.
This bill will go a long way in guaranteeing this, by
strengthening the protections and procedural rights available to
those federal employees who report misdeeds and mismanagement.
Toward this end, the bill I am signing today will enhance
the authority of the Office of Special Counsel, to protect
whistleblowers and other employees victimized by prohibited
2
personnel practices. Whistleblowers will also now be allowed to
take their cases to the Merit Systems Protection Board.
Another major improvement of this law is its clarification
of the burden of proof. Employees must prove that whistleblowing
was a "contributing factor" to an adverse personnel action. The
agency will also have the right of rebuttal, the chance to prove
that the personnel decision was objective and fair. By
establishing a full and impartial debate, I am confident that
truth will prevail.
Let me also reaffirm my confidence in the competence and
skills of our senior executive and career managers and
supervisors, both civilian and military. Let us remember that
most government managers respond promptly and effectively to
problems disclosed by whistleblowers long before the provisions
of the law come into effect.
Finally, this bill is a sterling example of how the
Administration and Congress can work together to sharpen and
improve legislation. I am particularly pleased that this well-
crafted bill so neatly resolves Constitutional concerns raised by
earlier versions of this legislation. For this and many other
reasons, I am delighted to now sign S-20 into law.
April 7, 1989
MEMORANDUM FOR JIM CICCONI
FROM;
DENISE SCHWARZ
OFFICE OF CABINET AFFAIRS
SUBJECT;
PRESIDENTIAL REMARKS; SIGNING OF "WHISTLEBLOWER"
LEGISLATION
We have reviewed the remarks and have incorporated our
comments.
Attachment
CC: Chriss Winston
Document No. 024399SS
WHITE HOUSE STAFFING MEMORANDUM
4/7/89
4/7/89 5:00 PM
DATE:
ACTION/CONCURRENCE/COMMENT DUE BY:
PRESIDENTIAL REMARKS: SIGNING OF "WHISTLEBLOWER" LEGISLATION
SUBJECT:
ACTION FYI
ACTION FYI
VICE PRESIDENT
MCCLURE
SUNUNU
NEWMAN
SCOWCROFT
PORTER
DARMAN
STUDDERT
BATES
UNTERMEYER
ROGERS
BREEDEN
WINSTON
CARD
CICCONI
PINKERTON
DEMAREST
FITZWATER
GRAY
HAGIN
REMARKS:
Please forward any comments directly to Chriss Winston,
Rm. 122, x2930, no later than 5:00 TODAY, Friday, April
7, 1989, with an info copy to my office. Sorry for the
short turnaround. Thank you.
RESPONSE:
James W, Cicconi
Assistant to the President
and Deputy to the Chief of Staff
Ext. 2702
(Davis)
4/7/89/noon
Draft: One
Title: whistle
PRESIDENTIAL REMARKS: SIGNING OF "WHISTLEBLOWERS"
Room 450
MONDAY, APRIL 10, 2 p.m.
Today I am pleased to sign S. 20, the "Whistleblower
Protection Act of 1989." You know, when I was growing up, a
whistleblower was a guy in a funny hat and a black-and-white
shirt who was always throwing down a flag.
Perhaps that's an apt comparison. A whistleblower is, after
all, the one who cries "foul" to waste, fraud and abuse. In
short, a true whistleblower is a public servant of the highest
we do everything
order. I share the determination of the Congress that these possible
ensure
dedicated men and women should not be fired, rebuked or suffer
financially for their honesty and good judgment.
toward this goal,
This bill will go a long way in guaranteeing this, by
strengthening the protections and procedural rights available to
those federal employees who report misdeeds and mismanagement.
Toward this end, the bill I am signing today will enhance
the authority of the Office of Special Counsel, to protect
whistleblowers and other employees victimized by prohibited
2
personnel practices. Whistleblowers will also now be allowed to
take their cases to the Merit Systems Protection Board.
Provision
relates to
Another major improvement of this law is its clarification
of the burden of proof. Employees must prove that whistleblowing
was a "contributing factor" to an adverse personnel action. The
agency will also have the right of rebuttal, the chance to prove
that the personnel decision was objective and fair. By
@stablishing a full and impartial debate, I am confident that
truth will prevail.
Let me also reaffirm my confidence in the competence and
skills of our senior executive and career managers and
supervisors, both civilian and military. Let us remember that
most government managers respond promptly and effectively to
problems disclosed by whistleblowers long before the provisions
of the law come into effect.
good
Finally, this bill is a sterling example of how the
Administration and Congress can work together to sharpen and
improve legislation. I am particularly pleased that this well
the
crafted bill so neably resolves Constitutional concerns raised by
earlier versions of this legislation. For this and many other
reasons, I am delighted to now sign S-20 into law.
THE WHITE HOUSE
WASHINGTON
April 6, 1989
MEMORANDUM FOR THE PRESIDENT
FROM:
NICHOLAS F. BRADY
his
Chairman Pro Tempore
Economic Policy Council
SUBJECT:
EPC Policy Reviews
I wanted to provide you a status report on the policy reviews you
directed the Economic Policy Council to conduct and on a new
Working Group on Rural Development.
Trade
You directed that the EPC develop an overall trade strategy and
that Ambassador Hills lead the development of this report. USTR
is developing a paper that will outline recommended principles to
guide US trade policy and develop strategies for addressing major
trade issues like EC 1992, US-Japan trade, and steel.
Ambassador Hills should be ready to present the paper to the EPC
by early May.
Science and Technology
You directed that the EPC develop an overall strategy on science
and technology policy and that Secretary Mosbacher work closely
with the science advisor and other EPC members to draft a paper.
The paper will review all major research, development,
technology, and innovation issues. In particular, the paper will
develop policy options for improving our ability to convert new
technologies into products for the marketplace.
Secretary Mosbacher plans to present the paper to the EPC by the
end of June.
Rural Development
Secretary Yeutter asked the EPC to establish a Working Group on
Rural Development to improve the coordination and implementation
of the major federal rural development programs (e.g., rural
housing, health, education). Currently, these programs are
scattered in various Cabinet Departments. This Working Group
will develop policy options for improving coordination and
increasing state, local, and private sector involvement in rural
development.
Secretary Yeutter plans to present a paper to the EPC by early
June.
Document No. 024399SS
WHITE HOUSE STAFFING MEMORANDUM
4/7/89
4/7/89 5:00 PM
DATE:
ACTION/CONCURRENCE/COMMENT DUE BY:
PRESIDENTIAL REMARKS: SIGNING OF "WHISTLEBLOWER" LEGISLATION
SUBJECT:
ACTION FYI
ACTION FYI
VICE PRESIDENT
MCCLURE
SUNUNU
NEWMAN
SCOWCROFT
PORTER
DARMAN
STUDDERT
BATES
UNTERMEYER
BREEDEN
ROGERS
WINSTON
CARD
CICCONI
PINKERTON
DEMAREST
FITZWATER
GRAY
HAGIN
REMARKS:
Please forward any comments directly to Chriss Winston,
Rm. 122, x2930, no later than 5:00 TODAY, Friday, April
7, 1989, with an info copy to my office. Sorry for the
short turnaround. Thank you.
no comments
RESPONSE:
James W. Cicconi
Assistant to the President
and Deputy to the Chief of Staff
Ext. 2702
(Davis)
1999 APR -7 PM 2:00 2:
4/7/89/noon
Draft: One
Title: whistle
PRESIDENTIAL REMARKS: SIGNING OF "WHISTLEBLOWERS'
Room 450
MONDAY, APRIL 10, 2 p.m.
Today I am pleased to sign S. 20, the "Whistleblower
Protection Act of 1989." You know, when I was growing up, a
whistleblower was a guy in a funny hat and a black-and-white
shirt who was always throwing down a flag.
Perhaps that's an apt comparison. A whistleblower is, after
all, the one who cries "foul" to waste, fraud and abuse. In
short, a true whistleblower is a public servant of the highest
order. I share the determination of the Congress that these
dedicated men and women should not be fired, rebuked or suffer
financially for their honesty and good judgment.
This bill will go a long way in guaranteeing this, by
strengthening the protections and procedural rights available to
those federal employees who report misdeeds and mismanagement.
Toward this end, the bill I am signing today will enhance
the authority of the Office of Special Counsel, to protect
whistleblowers and other employees victimized by prohibited
2
personnel practices. Whistleblowers will also now be allowed to
take their cases to the Merit Systems Protection Board.
Another major improvement of this law is its clarification
of the burden of proof. Employees must prove that whistleblowing
was a "contributing factor" to an adverse personnel action. The
agency will also have the right of rebuttal, the chance to prove
that the personnel decision was objective and fair. By
establishing a full and impartial debate, I am confident that
truth will prevail.
Let me also reaffirm my confidence in the competence and
skills of our senior executive and career managers and
supervisors, both civilian and military. Let us remember that
most government managers respond promptly and effectively to
problems disclosed by whistleblowers long before the provisions
of the law come into effect.
Finally, this bill is a sterling example of how the
Administration and Congress can work together to sharpen and
improve legislation. I am particularly pleased that this well-
crafted bill so neatly resolves Constitutional concerns raised by
earlier versions of this legislation. For this and many other
reasons, I am delighted to now sign S-20 into law.
THE WHITE HOUSE
WASHINGTON
April 7, 1989
Memorandum to Chriss Winston
From:
Jim Pinkerton
D
Re:
Comments on Speech Drafts: "Volunteer Awards,"
"Exceptional Parent Magazine," and "Whistleblower"
VOLUNTEER AWARDS
Overall good speech. One important comment:
p.4, para. 5 Saying that the government spends more than what
the private sector spends, an amount almost equal to the Italian
budget, sends the message that the public sector is doing more
than the initiatives of private individuals.
5,2,1
Shouldn't this be "which has the responsibility"
instead of "has," so that the verb agrees with "the private
sector?"
"EXCEPTIONAL PARENT" MAGAZINE
This speech needs more emphasis on the fact that the skills
of the disabled are needed for practical economic reasons,
including competitiveness. We also think it is important to
avoid the phrase "quality of life," for the reasons given below.
1,1,3
We need to personalize the President's language more.
Thus instead of "reiterate the commitment of my
Administration " let's say: "repeat my dedication to those
with disabilities."
2,3,2
A very serious defect of the phrase "quality of life"
is its connotations associated with abortion. Abortion is
sometimes argued as justified because the infant would suffer
from a poor "quality of life."
(more)
2-2-2
Thus we'd change the sentence to: "They want to be a part
of the economic mainstream because work enhances self-esteem,
because they want to contribute to their country's productivity
and global competitiveness, and because they recognize that their
talents are needed."
WHISTLEBLOWER
This speech is fine.
#
Document No. 024399SS
WHITE HOUSE STAFFING MEMORANDUM
4/7/89
2
4/7/89 5:00 PM
DATE:
ACTION/CONCURRENCE/COMMENT DUE BY:
PRESIDENTIAL REMARKS: SIGNING OF "WHISTLEBLOWER" LEGISLATION
SUBJECT:
ACTION FYI
ACTION FYI
VICE PRESIDENT
MCCLURE
SUNUNU
NEWMAN
SCOWCROFT
PORTER
DARMAN
STUDDERT
BATES
UNTERMEYER
BREEDEN
ROGERS
CARD
WINSTON
CICCONI
PINKERTON
DEMAREST
FITZWATER
GRAY
HAGIN
REMARKS:
Please forward any comments directly to Chriss Winston,
Rm. 122, x2930, no later than 5:00 TODAY, Friday, April
7, 1989, with an info copy to my office. Sorry for the
short turnaround. Thank you.
RESPONSE:
See changes
James W, Cicconi
Assistant to the President
and Deputy to the Chief of Staff
Ext. 2702
(Davis)
4/7/89/noon
Draft: One
Title: whistle
PRESIDENTIAL REMARKS: SIGNING OF "WHISTLEBLOWERS'
Room 450
MONDAY, APRIL 10, 2 p.m.
Today I am pleased to sign S. 20, the "Whistleblower
Protection Act of 1989.* You know, when I was growing up, a
whistleblower was a guy in a funny hat cap and a black-and-white
shirt who was always throwing down a flag.
Perhaps that's an apt comparison. A whistleblower is, after
all, the one who cries "foul" to waste, fraud and abuse. In
short, a true whistleblower is a public servant of the highest
order. I share the determination of the Congress that these
dedicated men and women should not be fired, rebuked or suffer
financially for their honesty and good judgment.
This bill will go a long way in guaranteeing this, by
strengthening the protections and procedural rights available to
those federal employees who report misdeeds and mismanagement.
Toward this end, the bill I am signing today will enhance
the authority of the Office of Special Counselx to protect
whistleblowers and other employees victimized by prohibited
2
personnel practices. Whistleblowers will also now be allowed to
take their cases to the Merit Systems Protection Board.
Mult
bill overearlier
4864
versions
Another major improvement of this law is its clarification
of the burden of proof. Employees must prove that whistleblowing
was a "contributing factor" to an adverse personnel action. The Muri
agency will also have the right of rebuttal, the chance to prove,
and not base
that the personnel decision was objective and fair By onwhistteblower
establishing a full and impartial debate, I am confident that
truth will prevail.
Let me also reaffirm my confidence in the competence and
skills of our senior executive and career managers and
supervisors, both civilian and military. Let us remember that Murr
most government managers respond promptly and effectively to
problems disclosed like those by whistleblowers long even before without the provisions special
protections of the law come into effect.
fine
Finally, this bill is a sterling example of how the
Administration and Congress can work together to sharpen and
improve legislation. I am particularly pleased that this well-
crafted bill SQ neatly reselves Constitutional concerns raised by
earlier versions of this legislation. For this and many other
reasons, I am delighted to now sign S-20 into law.
this is too much!
the bill is the best we could do, itis not great.
THE WHITE HOUSE
WASHINGTON
April 7, 1989
MEMORANDUM FOR CHRISS WINSTON
DEPUTY ASSISTANT TO THE PRESIDENT FOR
COMMUNICATIONS
FROM:
NELSON LUND of
ASSOCIATE COUNSEL TO THE PRESIDENT
SUBJECT:
Presidential Remarks: Signing of
'Whistleblower' Legislation
At the request of James W. Cicconi, Counsel's Office has reviewed
the captioned draft remarks.
The fifth paragraph, which deals with the burden of proof,
misstates the Administration's position. The draft signing
statement that was circulated yesterday correctly noted that the
burden-of-proof provision in the enrolled bill is an improvement
over previous versions of the bill. This provision, however, is
not regarded by the Administration as an improvement over
existing law. Accordingly, we recommend that the entire
paragraph be deleted from the remarks. Alternatively, you may
wish to consider drafting a new section that accurately tracks
the discussions of burden of proof and of independent litigating
authority in the signing statement that was circulated yesterday.
Counsel's Office has no other legal objections to these draft
remarks. We appreciate having had the opportunity to review this
matter.
CC: James W. Cicconi
THE WHITE HOUSE
WASHINGTON
April 7, 1989
MEMORANDUM FOR CHRISS WINSTON
FROM:
ROGER B. PORTER RBP
SUBJECT:
Presidential Remarks: Signing of
"Whistleblower" Legislation
We approve of the draft remarks in their current form and
have no suggested recommendations from a policy standpoint.
CC: James W. Cicconi
Document No. 024399SS
WHITE HOUSE STAFFING MEMORANDUM
4/7/89
4/7/89 5:00 PM
DATE:
ACTION/CONCURRENCE/COMMENT DUE BY:
PRESIDENTIAL REMARKS: SIGNING OF "WHISTLEBLOWER" LEGISLATION
SUBJECT:
ACTION FYI
ACTION FYI
VICE PRESIDENT
MCCLURE
SUNUNU
NEWMAN
SCOWCROFT
PORTER
DARMAN
STUDDERT
BATES
UNTERMEYER
BREEDEN
ROGERS
WINSTON
CARD
CICCONI
PINKERTON
DEMAREST
FITZWATER
GRAY
HAGIN
REMARKS:
Please forward any comments directly to Chriss Winston,
Rm. 122, x2930, no later than 5:00 TODAY, Friday, April
7, 1989, with an info copy to my office. Sorry for the
short turnaround. Thank you.
RESPONSE:
James W. Cicconi
Assistant to the President
and Deputy to the Chief of Staff
Ext. 2702
(Davis)
4/7/89/noon
1999 APR
Draft: One
Title: whistle
PRESIDENTIAL REMARKS: SIGNING OF "WHISTLEBLOWERS'
Room 450
MONDAY, APRIL 10, 2 p.m.
Today I am pleased to sign S. 20, the "Whistleblower
Protection Act of 1989." You know, when I was growing up, a
whistleblower was a guy in a funny hat and a black-and-white
shirt who was always throwing down a flag.
Perhaps that's an apt comparison. A whistleblower is, after
all, the one who cries "foul" to waste, fraud and abuse. In
short, a true whistleblower is a public servant of the highest
order. I share the determination of the Congress that these
dedicated men and women should not be fired, rebuked or suffer
financially for their honesty and good judgment.
This bill will go a long way in guaranteeing this, by
strengthening the protections and procedural rights available to
those federal employees who report misdeeds and mismanagement.
Toward this end, the bill I am signing today will enhance
the authority of the Office of Special Counsel, to protect
whistleblowers and other employees victimized by prohibited
2
personnel practices. Whistleblowers will also now be allowed to
take their cases to the Merit Systems Protection Board.
Another major improvement of this law is its clarification
of the burden of proof. Employees must prove that whistleblowing
was a "contributing factor" to an adverse personnel action. The
agency will also have the right of rebuttal, the chance to prove
that the personnel decision was objective and fair. By
establishing a full and impartial debate, I am confident that
truth will prevail.
Let me also reaffirm my confidence in the competence and
skills of our senior executive and career managers and
supervisors, both civilian and military. Let us remember that
most government managers respond promptly and effectively to
problems disclosed by whistleblowers long before the provisions
of the law come into effect.
Finally, this bill is a sterling example of how the
Administration and Congress can work together to sharpen and
improve legislation. I am particularly pleased that this well-
crafted bill so neatly resolves Constitutional concerns raised by
earlier versions of this legislation. For this and many other
reasons, I am delighted to now sign S-20 into law.
(Davis)
4/7/89/noon
Draft: One
Title: whistle
PRESIDENTIAL REMARKS: SIGNING OF "WHISTLEBLOWERS'
Room 450
MONDAY, APRIL 10, 2 p.m.
Today I am pleased to sign S. 20, the "Whistleblower
Protection Act of 1989." You know, when I was growing up, a
whistleblower was a guy in a funny hat and a black-and-white
shirt who was always throwing down a flag.
Perhaps that's an apt comparison. A whistleblower is, after
all, the one who cries "foul" to waste, fraud and abuse. In
short, a true whistleblower is a public servant of the highest
order. I share the determination of the Congress that these
dedicated men and women should not be fired, rebuked or suffer
financially for their honesty and good judgment.
This bill will go a long way in guaranteeing this, by
strengthening the protections and procedural rights available to
those federal employees who report misdeeds and mismanagement.
Toward this end, the bill I am signing today will enhance
the authority of the Office of Special Counsel, to protect
whistleblowers and other employees victimized by prohibited
2
personnel practices. Whistleblowers will also now be allowed to
take their cases to the Merit Systems Protection Board.
Another major improvement of this law is its clarification
of the burden of proof. Employees must prove that whistleblowing
was a "contributing factor" to an adverse personnel action. The
agency will also have the right of rebuttal, the chance to prove
that the personnel decision was objective and fair. By
establishing a full and impartial debate, I am confident that
truth will prevail.
Let me also reaffirm my confidence in the competence and
skills of our senior executive and career managers and
supervisors, both civilian and military. Let us remember that
most government managers respond promptly and effectively to
problems disclosed by whistleblowers long before the provisions
of the law come into effect.
Finally, this bill is a sterling example of how the
Administration and Congress can work together to sharpen and
improve legislation. I am particularly pleased that this well-
crafted bill so neatly resolves Constitutional concerns raised by
earlier versions of this legislation. For this and many other
reasons, I am delighted to now sign S-20 into law.
Document No. 024399SS
MASTERI
WHITE HOUSE STAFFING MEMORANDUM
4/7/89
4/7/89 5:00 PM
DATE:
ACTION/CONCURRENCE/COMMENT DUE BY:
PRESIDENTIAL REMARKS: SIGNING OF "WHISTLEBLOWER" LEGISLATION
SUBJECT:
ACTION FYI
ACTION FYI
VICE PRESIDENT
MCCLURE
SUNUNU
NEWMAN
SCOWCROFT
PORTER
DARMAN
STUDDERT
BATES
UNTERMEYER
ROGERS
BREEDEN
WINSTON
CARD
CICCONI
PINKERTON
DEMAREST
FITZWATER
GRAY
HAGIN
REMARKS:
Please forward any comments directly to Chriss Winston,
Rm. 122, x2930, no later than 5:00 TODAY, Friday, April
7, 1989, with an info copy to my office. Sorry for the
short turnaround. Thank you.
RESPONSE:
James W. Cicconi
Assistant to the President
and Deputy to the Chief of Staff
Ext. 2702
(Davis)
4/7/89/noon
1889 APR
Draft: One
Title: whistle
PRESIDENTIAL REMARKS: SIGNING OF "WHISTLEBLOWERS'
Room 450
MONDAY, APRIL 10, 2 p.m.
Today I am pleased to sign S. 20, the "Whistleblower
Protection Act of 1989." You know, when I was growing up, a
whistleblower was a guy in a funny hat and a black-and-white
shirt who was always throwing down a flag.
Perhaps that's an apt comparison. A whistleblower is, after
all, the one who cries "foul" to waste, fraud and abuse. In
short, a true whistleblower is a public servant of the highest
order. I share the determination of the Congress that these
dedicated men and women should not be fired, rebuked or suffer
financially for their honesty and good judgment.
This bill will go a long way in guaranteeing this, by
strengthening the protections and procedural rights available to
those federal employees who report misdeeds and mismanagement.
mont
Toward this end, the bill I am signing today will enhance
the authority of the Office of Special Counsel, to protect
whistleblowers and other employees victimized by prohibited
2
personnel practices. Whistleblowers will also now be allowed to
take their cases to the Merit Systems Protection Board.
Another major improvement of this law is its clarification
of the burden of proof. Employees must prove that whistleblowing
was a "contributing factor" to an adverse personnel action. The
agency will also have the right of rebuttal, the chance to prove
that the personnel decision was objective and fair. By
establishing a full and impartial debate, I am confident that
truth will prevail.
Let me also reaffirm my confidence in the competence and
skills of our senior executive and career managers and
supervisors, both civilian and military. Let us remember that
most government managers respond promptly and effectively to
problems disclosed by whistleblowers long before the provisions
of the law come into effect.
Finally, this bill is a sterling example of how the
Administration and Congress can work together to sharpen and
improve legislation. I am particularly pleased that this well-
crafted bill so neatly resolves Constitutional concerns raised by
earlier versions of this legislation. For this and many other
reasons, I am delighted to now sign S-20 into law.
THE WHITE HOUSE
Office of the Press Secretary
For Immediate Release
April 10, 1989
REMARKS BY THE PRESIDENT
DURING SIGNING OF
WHISTLE-BLOWER LEGISLATION
Room 450
Old Executive Office Building
2:05 P.M. EDT
THE PRESIDENT: Thank you very much. Well, today I am
pleased to sign S. 20, the Whistle-blower Protection Act of 1989.
We used to think of a whistle-blower as some guy in a funny
hat running around on a field with a black and white shirt on, always
throwing down the flag. But that might well be an apt comparison for
the business at hand because whistle-blowing is, after all, the one who
cries foul to waste, to fraud, and to abuse. And in short, a true
whistle-blower is a public servant of the highest order. And I share
the determination of the Congress that we do everything possible to
ensure that these dedicated men and women should not be fired or
rebuked or suffer financially for their honesty and good judgment.
This bill will go a long way toward this goal, by
strengthening the protections and procedural rights available to those
federal employees who report misdeeds and mismanagement. Toward this
end, the bill I am signing today is a significant improvement over
legislation enacted by the Congress last year. Indeed, the fact that
the legislative and executive worked together to eliminate major
constitutional flaws in this bill is, indeed, a reflection of our joint
commitment to good government.
Through their diligence and hard work, the Attorney
General, along with Senator Levin and Congressman Frank Horton and
others in the Congress were successful in clarifying the burden of
proof on employees; eliminating independent litigating authority in the
Office of Special Counsel; and then, thirdly, retaining current law
which provides that the Special Counsel may only be removed for
inefficiency, neglective duty, or malfeasance.
These three issues were at the root of last year's
disagreement over this legislation. And I am tremendously pleased that
these valid constitutional concerns were addressed in the bill that I
am signing here today.
As a result, this legislation will enhance the authority of
the Office of Special Counsel to protect whistle-blowers and other
employees victimized by prohibited personnel practices.
Whistle-blowers will also now be allowed to take their cases to the
Merit System Protection Board.
- 2 -
For this and many other reasons, I am delighted to now sign
S. 20, and I would invite the members of the Congress that are with us
today to come forward as I do so. And I appreciate very much you all
being here.
(The bill is signed.) (Applause.)
END
2:09 P.M. EDT
DAVIS
THE WHITE HOUSE
Office of the Press Secretary
For Immediate Release
April 10, 1989
REMARKS BY THE PRESIDENT
DURING SIGNING OF
WHISTLE-BLOWER LEGISLATION
Room 450
Old Executive Office Building
2:05 P.M. EDT
THE PRESIDENT: Thank you very much. Well, today I am
pleased to sign S. 20, the Whistle-blower Protection Act of 1989.
We used to think of a whistle-blower as some guy in a funny
hat running around on a field with a black and white shirt on, always
throwing down the flag. But that might well be an apt comparison for
the business at hand because whistle-blowing is, after all, the one who
cries foul to waste, to fraud, and to abuse. And in short, a true
whistle-blower is a public servant of the highest order. And I share
the determination of the Congress that we do everything possible to
ensure that these dedicated men and women should not be fired or
rebuked or suffer financially for their honesty and good judgment.
This bill will go a long way toward this goal, by
strengthening the protections and procedural rights available to those
federal employees who report misdeeds and mismanagement. Toward this
end, the bill I am signing today is a significant improvement over
legislation enacted by the Congress last year. Indeed, the fact that
the legislative and executive worked together to eliminate major
constitutional flaws in this bill is, indeed, a reflection of our joint
commitment to good government.
Through their diligence and hard work, the Attorney
General, along with Senator Levin and Congressman Frank Horton and
others in the Congress were successful in clarifying the burden of
proof on employees; eliminating independent litigating authority in the
Office of Special Counsel; and then, thirdly, retaining current law
which provides that the Special Counsel may only be removed for
inefficiency, neglective duty, or malfeasance.
These three issues were at the root of last year's
disagreement over this legislation. And I am tremendously pleased that
these valid constitutional concerns were addressed in the bill that I
am signing here today.
As a result, this legislation will enhance the authority of
the Office of Special Counsel to protect whistle-blowers and other
employees victimized by prohibited personnel practices.
Whistle-blowers will also now be allowed to take their cases to the
Merit System Protection Board.
- 2 -
For this and many other reasons, I am delighted to now sign
S. 20, and I would invite the members of the Congress that are with us
today to come forward as I do so. And I appreciate very much you all
being here.
(The bill is signed.) (Applause.)
END
2:09 P.M. EDT
STATEMENT OF
NEW THE UNITED OFFICE of and MANGER STATES
ADMINISTRATION
POLICY
March 7, 1989
o
(Senate)
S. 20 - Whistleblower Protection Act of 1989
(Levin (D) MI and 23 others)
The Administration supports enactment of S. 20 as it would be
amended by Senator Levin's floor amendment. This amendment to
S. 20 addresses the Article II and Article III constitutional
concerns (including granting the Office of Special Counsel
independent litigating authority and authority to seek judicial
review of certain cases), as well as the "Mt. Healthy" burden of
proof test involved in whistleblowing as a defense against agency
personnel action, that resulted in a veto of S. 508 during the
100th Congress. These changes address the major outstanding
issues on this important legislation.
********