B-208718, MAY 20, 1983

B-208718, MAY 20, 1983

SUBJECT: REQUEST FOR ASSISTANCE REGARDING ENVIRONMENTAL PROTECTION AGENCY INSPECTOR GENERAL OPERATIONS (CODE 911551; FILE B-208718)

YOUR MEMORANDUM OF APRIL 6, 1983, ON THE ABOVE SUBJECT RAISES SEVERAL QUESTIONS REGARDING USE BY THE FORMER INSPECTOR GENERAL OF THE ENVIRONMENTAL PROTECTION AGENCY (EPA) OF SECTION 7(B) OF THE INSPECTOR GENERAL ACT OF 1978, 5 U.S.C. APP. (SUPP. IV, 1980). SECTION 7 OF THE INSPECTOR GENERAL ACT AUTHORIZES THE INSPECTOR GENERAL OF EACH COVERED AGENCY, INCLUDING EPA, TO RECEIVE AND INVESTIGATE COMPLAINTS OR INFORMATION FROM AN EMPLOYEE OF THAT AGENCY CONCERNING THE POSSIBLE EXISTENCE OF AN ILLEGAL OR IMPROPER ACTIVITY, MISMANAGEMENT, GROSS WASTE OF FUNDS, ABUSE OF AUTHORITY, OR A SUBSTANTIAL AND SPECIFIC DANGER TO THE PUBLIC HEALTH AND SAFETY. SECTION 7(B) PROVIDES:

THE INSPECTOR GENERAL SHALL NOT, AFTER RECEIPT OF A COMPLAINT OR INFORMATION FROM AN EMPLOYEE, DISCLOSE THE IDENTITY OF THE EMPLOYEE WITHOUT THE CONSENT OF THE EMPLOYEE, UNLESS THE INSPECTOR GENERAL DETERMINES SUCH DISCLOSURE IS UNAVOIDABLE DURING THE COURSE OF THE INVESTIGATION.

YOU ASK, FIRST, WHETHER SECTION 7(B) APPLIES TO A COMPLAINT OR INFORMATION FURNISHED BY A CONSULTANT TO THE AGENCY AND, SECOND, WHETHER SECTION 7(B) CONTINUES TO APPLY ONCE A PERSON WHO COMPLAINED OR PROVIDED INFORMATION AS AN EMPLOYEE IS NO LONGER EMPLOYED BY THE FEDERAL GOVERNMENT.

SECTION 7(B) OF THE INSPECTOR GENERAL ACT WAS DESIGNED TO PREVENT RETALIATION AGAINST "WHISTLE-BLOWING" EMPLOYEES AND INSURE THE FREE FLOW OF INFORMATION TO AN INSPECTOR GENERAL. SEE GENERALLY, S.REP. NO. 1071, 95TH CONG., 2D SESS. AT 35-37 (1978). NEITHER THE ACT NOR ITS LEGISLATIVE HISTORY PROVIDES ANY SPECIFIC GUIDANCE ON THE TWO QUESTIONS YOU RAISE. NEVERTHELESS, BASED ON THE GENERAL PURPOSES OF THIS PROVISION, WE BELIEVE THAT IT WOULD BE APPROPRIATE FOR AN INSPECTOR GENERAL TO APPLY THE PROTECTIONS OF THIS PROVISION BOTH TO CONSULTANTS AND TO FORMER GOVERNMENT EMPLOYEES. ON THE FIRST POINT, WE BELIEVE THAT A CONSULTANT FALLS WITHIN THE GENERAL SPHERE OF INTEREST THAT SECTION 7(B) WAS DESIGNED TO PROTECT. A CONSULTANT CERTAINLY COULD BE PRIVY TO INFORMATION OF VALUE TO THE INSPECTOR GENERAL, AND A CONSULTANT MIGHT HAVE LEGITIMATE CONCERNS OVER POSSIBLE RETALIATION. MOREOVER, MANY CONSULTANTS WOULD, IN FACT, BE AGENCY "EMPLOYEES," I.E., "SPECIAL GOVERNMENT EMPLOYEES." SEE 18 U.S.C. SEC. 202.

ON THE SECOND POINT, WE SEE NO BASIS TO CONCLUDE THAT THE PROTECTIONS OF SECTION 7(B) CEASE TO APPLY ONCE AN EMPLOYEE LEAVES THE GOVERNMENT; NOTHING IN THE LANGUAGE OF SECTION 7(B) REQUIRES OR IMPLIES THIS. MOREOVER, THERE IS NO REASON TO ASSUME THAT A PERSON'S FEAR OF RETALIATION AUTOMATICALLY TERMINATES WHEN HE OR SHE LEAVES GOVERNMENT SERVICE. FOR EXAMPLE, THE PERSON MAY LEAVE GOVERNMENT SERVICE TEMPORARILY AND MAY ANTICIPATE RETURNING TO THE FEDERAL RANKS (EVEN TO THE SAME AGENCY) AT SOME STAGE. EVEN A RETIRED EMPLOYEE MIGHT HAVE REAL (TO HIM OR HER) CONCERNS OVER RETALIATION THOUGH LOSS OF A PENSION OR OTHER MEANS.

IN DISCUSSIONS WITH MR. SAM MENTO OF YOUR STAFF, WE HAVE MODIFIED YOUR THIRD QUESTION AS FOLLOWS: DOES SECTION 7(B) APPLY ONLY TO AGENCY EMPLOYEES WHO TAKE THE INITIATIVE IN SUBMITTING COMPLAINTS OR INFORMATION TO AN INSPECTOR GENERAL, OR CAN IT BE EXTENDED TO ANY AGENCY EMPLOYEE WHO PROVIDES INFORMATION IN RESPONSE TO A REQUEST BY THE INSPECTOR GENERAL? IN THIS REGARD, WE UNDERSTAND FROM MR. MENTO THAT THE FORMER EPA INSPECTOR GENERAL USED SECTION 7(B) TO WITHHOLD THE IDENTITIES OF AGENCY EMPLOYEES WHO MERELY RESPONDED TO QUESTIONS IN INTERVIEWS INITIATED BY INSPECTOR GENERAL OFFICIALS.

WE VIEW SECTION 7(B) AS APPLYING ONLY TO AGENCY EMPLOYEES WHO ORIGINATE COMPLAINTS OR OTHERWISE TAKE THE INITIATIVE IN FURNISHING INFORMATION TO AN INSPECTOR GENERAL. SECTION 7(B) IS PART OF A SECTION OF THE INSPECTOR GENERAL ACT DEALING WITH COMPLAINTS INITIATED BY EMPLOYEES. THUS SECTION 7(A) AUTHORIZES THE INSPECTOR GENERAL TO "RECEIVE AND INVESTIGATE COMPLAINTS OR INFORMATION FROM AN EMPLOYEE ***." THE ENTIRE THRUST OF SECTION 7 AND ITS LEGISLATIVE HISTORY IS TO PROTECT, AND THEREBY ENCOURAGE, "WHISTLE-BLOWING" BY EMPLOYEES. THUS, THE SENATE REPORT OBSERVES:

THE COMMITTE BELIEVES THAT THE INSPECTOR AND AUDITOR GENERAL SHOULD HANDLE EMPLOYEE COMPLAINTS SERIOUSLY AND SYSTEMATICALLY. BECAUSE OF THE EMPLOYEE'S POSITION WITHIN THE AGENCY, EMPLOYEE COMPLAINTS CARRY WITH THEM A HIGH LIKELIHOOD OF RELIABILITY. BECAUSE IT IS NEVER EASY TO "BLOW THE WHISTLE" ON ONE'S SUPERVISORS OR COLLEAGUES, THE SITUATION MAY OFTEN BE SERIOUS. ADDITIONALLY, THE COMMITTEE BELIEVES THAT MOST EMPLOYEES WOULD MUCH PREFER AN EFFECTIVE CHANNEL INSIDE THE AGENCY TO PURSUE COMPLAINTS RATHER THAN SEEKING RECOURSE OR PUBLICITY OUTSIDE THE AGENCY. THIS PREFERENCE SHOULD BE ENCOURAGED. FOR ALL THESE REASONS, THE EMPLOYEES OF AN ESTABLISHMENT CAN BE VALUABLE SOURCES OF INFORMATION ABOUT FRAUD, WASTE, AND MISMANAGEMENT WITHIN THE AGENCY. THE AGENCY AND THE TAXPAYERS BENEFIT IF THE INSPECTOR AND AUDITOR GENERAL CREATES A CLIMATE WHEREBY AGENCY EMPLOYEES KNOW THAT THEIR COMPLAINTS WILL BE TAKEN SERIOUSLY. SUBSECTIONS (B) AND (C), WHICH MANDATE THAT THE COMPLAINING EMPLOYEE'S IDENTITY BE KEPT CONFIDENTIAL AND THAT EMPLOYEES BE PROTECTED FROM REPRISAL, CAN HELP CREATE A POSITIVE ATMOSPHERE, BUT ULTIMATELY ONLY THE INSPECTOR AND AUDITOR GENERAL (AND THE AGENCY HEAD) CAN INSURE THAT SIGNIFICANT EMPLOYEE COMPLAINTS ARE ACTED UPON. S.REP. NO. 1021, 95 CONG., 2D SESS. AT 35-36.

GIVEN THIS BACKGROUND, IT IS CLEAR THAT SECTION 7(B) APPLIES ONLY TO EMPLOYEES WHO INITIATE COMPLAINTS OR OTHER INFORMATION TO THE INSPECTOR GENERAL. AT THE SAME TIME, WE WOULD EMPHASIZE THAT AN INSPECTOR GENERAL MIGHT GIVE A PLEDGE OF CONFIDENTIALITY TO AGENCY EMPLOYEES IN OTHER CIRCUMSTANCES IF THE INSPECTOR GENERAL DETERMINED THAT THIS WOULD FACILITATE AN INVESTIGATION. SUCH A PLEDGE OF CONFIDENTIALITY WOULD NOT BE WITHIN THE SCOPE OF SECTION 7(B); NOR WOULD IT BE AUTHORIZED SPECIFICALLY BY ANY OTHER STATUTE OF WHICH WE ARE AWARE. NEVERTHELESS, WE BELIEVE THAT AN ADMINISTRATIVE PLEDGE OF CONFIDENTIALITY WOULD BE EFFECTIVE, AT THE LEAST, TO AVOID NAMING THE EMPLOYEE PUBLICLY OR WITHIN THE AGENCY.