Airport Screeners Safer from Reprisals
New Appeal Venue for Whistleblowers

( Well... kinda sort of )

By RON MARSICO

Wednesday, February 27, 2008

The federal government increased whistleblower protections for more than 40,000 airport screeners yesterday, following years of complaints from screeners and other staffers who claimed they were harassed, demoted, or even fired for publicly disclosing problems within the nation's airport se curity system.

But whistleblower advocates and the New Jersey congressman who demanded increased protection for screeners said the action still falls well short of providing full coverage under the U.S. Whistleblower Protection Act.

The U.S. Transportation Security Administration signed an agreement that for the first time allows screeners to appeal cases to the U.S. Merit Systems Protection Board if their initial complaints of reprisal are dismissed. Screeners previously were limited to bringing cases to a government investigative agency, which only was allowed to issue recommendations that were not binding on the TSA.

"Transportation security officers are on the front lines, protecting the traveling public," said TSA Administrator Kip Hawley in a statement. "For their sake and the sake of security, this agreement with MSPB provides TSA officers another independent avenue for whistleblower concerns."

Hawley's action came after he was grilled at a hearing last fall by Rep. William Pascrell (D-8th Dist.), a House Homeland Security committee member who was concerned about an October article in The Star-Ledger that outlined the TSA's reprisals against current and former employees who spoke out about security. Pascrell urged Haw ley to take action, and the administrator promised that he would.

But some critics said the policy announced yesterday would increase screeners' protections only marginally.

"This improves TSA employees from fourth-class rights to third- class," said Tom Devine, legal director for the Government Accountability Project, a nonprofit group that lobbies on behalf of whistleblowers. "It would be second-class if they could have appeal rights to the federal court."

Devine said the new agreement appears meaningful in the abstract, but in reality is of little help be cause the MSPB has "only ruled in favor of a whistleblower on the merits once" since 2003. An MSPB official declined to characterize the accuracy of Devine's assessment, saying the agency is working to better tabulate and categorize its case numbers.

Before yesterday's action, screeners first and only recourse was to bring a complaint to the U.S. Office of Special Counsel, which reviewed cases but only rarely issued non-binding recommendations in the employee's favor.

Screeners -- unlike most government workers -- still will not be able to appeal a negative MSPB finding to the U.S. Federal Circuit Court of Appeals in Washington D.C. because that requires a statute passed by Congress.

Overall, TSA employs 48,000 screeners, with 37,000 holding full- time jobs and 11,000 in part-time posts, according to an agency spokeswoman.

Like the TSA's Hawley, MSPB Chairman Neil A.G. McPhie also issued a statement praising the cooperative efforts of the two agencies.

"This third-party review should increase the confidence of security officers to make these disclosures and contribute to the traveling public's sense of safety," said McPhie.

Rep. Pascrell also was disappointed with the TSA's action.

"It still falls short of whistleblower protections available to other federal employees," said Pascrell. "We want full whistleblower protection. ... They're trying to give me half a loaf here."

Efforts to extend full whistleblower protection rights to screeners also have had a difficult time in Congress.

Rep. Henry Waxman, a California Democrat, successfully got a bill through the House of Representatives in early 2007 that would significantly strengthen the U.S. Whistleblower Protection Act, while also providing coverage for the first time to screeners. But a similar measure passed in December by the U.S. Senate to strengthen the act does not include coverage for screeners.

Even if the eventual reconciliation bill includes protection for TSA screeners, the measure still must head to the White House for consideration by President Bush, who is expected to veto it on various grounds. Last year, administration officials issued a statement opposing Waxman's bill, saying, "it could compromise national security, is unconstitutional, and is overly burdensome and unnecessary."

Ron Marsico can be reached at RMarsico@starledger.com or (973) 392-7860.

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