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The Benghazi Committee staffer who says he was fired for resisting participation in what he called a politically motivated probe of Hillary Clinton is not protected under federal whistleblower laws – an exemption that some labor lawyers call “inexcusable.”
Advocates say the lack of protection for Congressional staffers effectively silences any House or Senate worker who could otherwise reveal potential corruption in Congress.
“Congress’ failure to provide legal protection for its own employees is inexcusable,” said Debra Katz, a D.C. attorney who specializes in federal whistleblower cases. “And that won’t change until Congress gets embarrassed as the public becomes aware.”
In October, Major Bradley Podliska, an investigator working for the House Select Committee on Benghazi, which is probing the September 11, 2012 attack on the American diplomatic outpost in Libya, claimed he was fired for refusing to narrow his focus to former Secretary of State Clinton and the State Department.
But as a legislative branch staffer, existing federal whistleblower law doesn’t offer Podliska any protection. Instead, his attorneys said, they will file a lawsuit alleging military discrimination. They charge that senior committee members retaliated against Podliska, a veteran intelligence officer with the U.S. Air Force Reserves, for taking leave twice this spring when he was called up for active duty with the Air Force.
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'The Skeletons Hidden Deep in the Closets'
The 1989 Whistleblower Protection Act shields federal workers in the executive branch from retaliation for exposing allegations of corruption. Congress has since passed similar legislation to protect many private sector industries, but is has never enacted such legislation for Congress or the agencies it oversees, like the Library of Congress.
Advocates say federal whistleblower protection for Congress could help expose corruption on Capitol Hill.
Last year, executive branch staffers protected under the WPA filed more than 1,500 whistleblower retaliation-related complaints, of which just under 10 percent led to some sort of corrective action, according to a spokesman for the federal Office of Special Counsel (OSC).
The OSC’s legislative branch counterpart, the Office of Compliance (OOC), has been urging Congress to change the law since at least 1989, most recently last December, agency records show.
In the most recent report, the OOC board of directors writes that the agency “has received numerous inquiries from legislative branch employees about their rights following disclosures of alleged violations.” OCC staffers are tasked with explaining that they don’t have any protection.
Sen. Chuck Grassley (R.-Iowa) has been urging his colleagues to extend the protections to the legislative branch ever since passage of the whistleblower law in 1989. The Congressional Whistleblower Protection Act has been introduced by Grassley’s office annually but gone nowhere.
“Whistleblowers…are often the only ones who know the skeletons hidden deep in the closets,” Grassley said in 2009. “It’s simply not fair, nor is it good governance for Congress to enact whistleblower protections on the other branches of government without giving its own employees the same consideration. Congress needs to practice what it preaches.”
A Grassley spokesman said last week that his office is drafting new whistleblower legislation, which is “part of his longstanding efforts to get Congress to live by the same rules it imposes on others, that started with his authorship of the Congressional Accountability Act.”
Allegation of Military Discrimination
Lawyers for Podliska provided NBC News with a draft copy of a lawsuit charging that senior committee members violated the Uniformed Service Employment and Reemployment Rights Act (USERRA) by unlawfully discriminating and retaliating against him upon his return to active duty twice last spring. Podliska went on leave for 39 days in March and April and another 23 days in May.
It was after the first deployment that Podliska has said he returned to find that the focus of the committee’s probe had changed into a partisan query targeting Clinton.
“Under USERRA – unlike any other employment-related statute in the country -- you only have to prove that the termination was motivated in part by military discrimination,” said Joseph Napiltonia, one of Podliska’s attorneys.
“It’s disheartening that Congress does not have a work environment that promotes a way that employees can report misconduct without the fear of reprisals,” said Napiltonia.
Podliska’s attorneys have not filed any legal claims or complaints yet, and the Select Committee on Benghazi has not received or reviewed any legal claims brought by the fired staffer, a spokesman said.
Previously, committee officials have vigorously denied Podliska’s claims, asserting in a statement last month that “the committee stands ready to prove his termination was legal, justified and warranted — on multiple levels.”
A spokesman for House Benghazi committee chair Trey Gowdy (R-South Carolina) and committee Republicans reiterated the denials to NBC News, and also denied Podliska was discriminated against for serving with the military.
“The committee vehemently denies any of the allegations of the terminated staffer’s alleged claims, the committee is not aware of any evidence to support his allegation, and the committee will vigorously defend itself against any false claims,” said spokesman Jamal Ware.
'Crazy To Blow The Whistle'
Still, some labor rights lawyers say that whistleblower protection for Congress are not likely to yield many corruption revelations.
Steven Kohn, director of the National Whistleblower Center, said that when whistleblowers come to him and find out they have no protection, they “go back into the woodwork.”
But Kohn also said that most Capitol staffers are not inclined to blow the whistle regardless, since they are young, eager to please, and as ambitious as they are fearful of power.
“So many people are working there as a stepping stone,” he said “You’d be crazy to blow the whistle.”
Kohn, who has counseled dozens of would-be federal whistleblowers over the years, said he rarely encounters legislative branch staffers among them.
“If you go into a congressional office, you’ll find all these young staffers, and maybe one or two old-timers, [who are] at high levels with inside knowledge. But they are unlikely to be whistleblowers because they have been with the candidate for a long time and are loyal.
“Or, you know if they blow the whistle and their boss is out of office? There goes their job.”