Congress Rebukes HHS for Alleged Violation of Federal Whistleblower Protections

by Jay P. Holland
May 31st, 2017

Federal government employees are often in an excellent position to know about waste, fraud and abuse in government programs and to quietly inform others of what they know in order to punish wrongdoing, spur change and save the government vast sums of money. When they inform Congress, for example, about potentially illegal or wasteful practices in their agencies, federal employees are acting as whistleblowers – and they are protected under their own whistleblower statutes.

In a letter that they sent on May 4, 2017, to Thomas E. Price, secretary of Health and Human Services, two Republican legislators took aim at a memorandum that was issued to HHS employees the day before that they say may have a chilling effect on whistleblowers within that department. The memorandum says that all contacts with Congress by department employees must be cleared through the HHS Office of the Assistant Secretary for Legislation.

The authors of the scathing letter are Sen. Charles Grassley (R-IA), the chairman of the Senate Committee on the Judiciary, and Rep. Jason Chaffetz (R-UT), the chairman of the House Committee on Oversight and Government Reform. 

The letter notes, “Federal employees will most certainly read this instruction as a prohibition against direct communications with Congress without permission. As such, it is potentially illegal and unconstitutional, and will likely chill protected disclosures of waste, fraud, and abuse.”

The letter refers to a 1912 statute, which is still in effect, that specifically protects federal employees’ rights “to petition Congress or a Member of Congress, or to furnish information to either House of Congress, or to a committee thereof.” It also refers to the “Grassley anti-gag rider,” a provision of law enacted in the 1980s that also protects government employees’ rights to speak out.

The letter notes that the internal HHS memorandum “contains no exception whatsoever for lawful, protected communications with Congress. In its current form, employees are likely to interpret it as a prohibition, and will not necessarily understand their rights. The Grassley anti-gag rider and the associated [Whistleblower Protection Enhancement Act] provision are designed to ensure that employees understand that any such agency policy does not supersede the protections afforded them by statute and the Constitution. These provisions are significant because they ensure that attention can be brought to problems in the Executive Branch that need to be fixed. Protecting whistleblowers who courageously speak out is not a partisan issue -- it is critical to the functioning of our government.”

The department has not yet responded to the May 4 letter. We will be watching for a response in the interest of ensuring that the rights of federal government whistleblowers remain fully protected.

The letter to Secretary Price can be found here, and a May 9, 2017, article on the subject from the Washington Post can be found here.


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