Sunday Read: President’s Day 2023

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Whistleblowing is embedded in the founding of America, with its origin in the U.S. antedating President George Washington’s first term. It has since become an effective means for increasing, enforcing and exposing accountability among those who have public or private trust, from governmental and military officers to those in the corporate sector.

Through the years, various presidents have encountered and honored whistleblowers in various ways–whether through ceremony or legislation.

Against the backdrop of President’s Day 2023, we review some of the pivotal relationships between some U.S. commanders in the chief and whistleblowers in this Sunday Read. National Whistleblower Center (NWC) hopes these examples serve as a playbook for how President Biden can empower whistleblowers–the best weapon the government has in fighting fraud and corruption. By doing so, he could strengthen his administration’s reputation and legacy.

Founding Fathers

The origins of whistleblower law in the United States date back to the 1770s, and harken to the insubordination of Esek Hopkins, a Rhode Island slave runner who became the commander in chief of the first United States Navy under then-General George Washington.

A divisive character to this day, Hopkins’ self-serving actions led to several clashes with General Washington. Investigations by future presidents John Adams and Thomas Jefferson, found him to have had no intention of following orders during the Revolutionary War.

Perhaps most importantly, seamen under Hopkins’ command reported wrongdoing and abuses committed by him in the Continental Navy against captured British soldiers. Hopkins subsequently retaliated against these whistleblowers, including Richard Marven and Samuel Shaw, by arresting them. Ultimately, Hopkins commission was terminated by Congress on Jan. 2, 1778, and the passage of the world’s first whistleblower law followed six months later on July 30, 1778–which is why the date is designated as National Whistleblower Day.

The broader account of the interconnection between Hopkins, Marven and Shaw was first highlighted in The New Whistleblower’s Handbook, written by NWC Founder & Chairman of the Board Stephen M. Kohn. And, Mr. Kohn tells the story of these incredible whistleblowers at each years’ National Whistleblower Day Celebration. The value of the story is described by Kohn as “remarkable,” Saying in Whistleblower Network News, that, “The sentiments and the issues are exactly what I hear today [in representing whistleblowers].”

President Ronald Reagan

Originally part of the Civil Service Reform Act of 1978, Congress passed the Whistleblower Protection Act of 1989 (WPA). Intended to strengthen and improve protections for the rights of federal employees and to prevent reprisals, the WPA was put before President Ronald Reagan in 1988, but he withheld his approval until constitutional and other defects in the bill were corrected. It also established the Office of Special Counsel as an independent office within the Executive Branch.

Pres. Reagan approved the revised WPA on Jan. 3, 1989 and in urging Congress to enact the law, wrote:

[The WPA] grants to Federal employees for the first time the right to initiate an action before the Merit Systems Protection Board to contest a personnel action on the ground that it was taken as a reprisal for whistleblowing. The legislation also grants job transfer preference to whistleblowers in filling jobs of equivalent status and tenure as the job held by the whistleblowing employee.

The WPA was a precursor to the Federal Whistleblower Protection Enhancement Act (WPEA) in 2012. WPA protections have proven crucial over the years, exemplified in 2015 in the precedent-setting decision, Savage v. Department of the Army.

As chronicled by NWC in 2015, Tommie “Toni” Savage, a highly respected contracting officer at the Army Corps of Engineers Huntsville, Alabama Support Center, detected a pattern and practice of illegal contracting activity resulting in millions of dollars of contracting fraud in the Army’s “Ranges Program” and reported it in 2006. The work environment became increasingly hostile, resulting in documented psychological injury to Savage and causing her to be incapable of returning to work. She was terminated in 2009 due to her extended absences. The Corps failed to present evidence that her psychological injury was not caused by the hostile work environment. The Merit Systems Protection Board (MSPB) ruled that the creation of a hostile work environment standing alone violated the WPA.

How President Biden Can Make a Difference

NWC’s 2022 President’s Day coverage reflected on how several other U.S. leaders have taken steps to advance whistleblower policies. The rights of the whistleblower and their impact on truth and the foundations of American democracy are inexorably intertwined. NWC has also reflected on President Joseph Biden’s record on whistleblower affairs.

NWC commends President Biden for resolving several of the issues NWC raised in 2022. Since President’s Day 2022, President Biden:

• Established quorum at the MSBP by appointing new board judges. As mentioned above, the MSBP is a quasi-judicial agency tasked with protecting federal employees from discrimination and whistleblower retaliation. The MSBP was without a quorum for more than five years in 2022, suffering from a backlog of more than 3,400 claims from federal employees. President Biden made sure the Board gained quorum, and as a result, hundreds of complaints have been resolved. The MSPB anticipates that it will take three years to completely work through the backlog.
• Passed urgently needed improvements to the Anti-Money Laundering program (AML), lack sufficient protections. Previously, AML whistleblowers reporting banking violations were not provided several important protections and incentives. But, because President Biden enacted the IRS Whistleblower Program Improvement Act whistleblowers from around the world are filing reports to the FinCEN program.

These improvements are noteworthy but, critical work lies ahead:

• The Securities and Exchange Commission (SEC) and Commodity Futures Trading Commission (CFTC) have their own extremely successful whistleblower programs that regularly root out financial fraud, but this success has made the limited funding pools for whistleblower rewards insufficient, resulting in long delays issuing rewards. Although Congress has repeatedly issued temporary funding to keep these programs afloat, President Biden should urge lawmakers to pass long-term funding for these programs. This would ensure the government’s ability to investigate financial and the whistleblowers ability to be rewarded.
• The Federal Trade Commission and Consumer Financial Protection Bureau both lack whistleblower rewards programs. This is a significant oversight, as these agencies are the main sources of antitrust and consumer protection enforcement that targets price-fixing and corporate fraud scandals that defraud ordinary consumers. It is paramount that President Biden work with Congress to establish these programs.

President Biden’s support of these policies would create a lasting legacy of improved government accountability. These recommendations will help prevent the misuse of taxpayer money, protect Americans from scams and fraudulent products, and root out corruption.

Support NWC

NWC fights to bolster whistleblower programs and raise awareness about the value of all whistleblowers. As a 501(c)(3) non-profit our awareness building work is made possible with the support of our generous donors. Please consider donating $50 today to help us continue to educate the public about whistleblower experiences and the role whistleblowers play in putting an end to fraud and discrimination.

This story was written by Justin Smulison, a professional writer, podcaster and event host based in New York.