NOAA scientific integrity policy, Part 2: Stronger whistleblower protections still needed

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The National Oceanic and Atmospheric Administration’s new scientific integrity policy issued in December contains important steps in the right direction. But while NOAA states its support for whistleblower protection in very general terms, the agency made no improvements in its draft text in response to a large number of public review comments, including ours, calling for further development of the policy on whistleblower protections.  It appears that NOAA needs a push from stronger legislative requirements.

See also:  NOAA scientific integrity policy, Part 1:  Scientists’ communication freedom still limited by Commerce Dept restrictions

NOAA scientific integrity policy was announced in December.

The Union of Concerned Scientists issued a statement ("NOAA Boosts Scientific Integrity with New Policy – White House Leadership Needed to Tackle Greater Issues") on the policy with which we are essentially in agrement:

Climate Science Watch submitted formal comments to NOAA in August 2011 on a public review draft policy document.

We have examined the final version of the policy released on December 7 with an eye to determining how NOAA has dealt with issues we raised in our review.  Climate Science Watch is always concerned with whistleblower protection, viewing whistleblowing as a sometimes essential mode of public service underutilized and insufficiently supported.

In the scientific integrity policy announced by NOAA, the sections most relevant to whistleblower protection are the following:

Section 5.04 – NOAA protects those who uncover and report allegations of scientific and research misconduct, as well as those accused of scientific and research misconduct in the absence of a finding of misconduct, from prohibited personnel practices (as defined in 5 U.S.C. § 2302(b)).

Section 7.05 – NOAA science managers and supervisors will immediately report suspected cases of scientific or research misconduct through means established under Section 8 and the Procedural Handbook for this Order.

In one instance, a reference to whistleblower protections in the review draft policy was deleted in the final version. In Section 7, Code of Ethics for Science Supervision and Management, the final text differs from the draft text by the deletion (without explanation) in the final text of the draft text words underlined here:

Specifically, science managers and supervisors will ensure: …

• Additional procedures are adopted, including any appropriate whistleblower protections, as are necessary to ensure the integrity of scientific and technological information and processes on which the agency relies in its decision making or otherwise uses or prepares.

Our review comments on NOAA’s review draft policy document included this:

RECOMMENDATION #2:  Develop and incorporate additional whistleblower protections into the Scientific Integrity Policy and provide a more detailed explanation of procedural safeguards to be instituted.

NOAA’s Scientific Integrity Policy, though not entirely silent on whistleblower protections, nonetheless does not adequately enunciate substantive whistleblower protections nor does it put any procedural mechanisms in place to ensure those substantive protections. In order to do this, NOAA must draft and incorporate additional whistleblower protections into its Scientific Integrity Policy, and ensure that NOAA employees are informed of their existence and educated about the procedures in place to ensure their protection.

Section 7, the “substantive” portion of NOAA’s reference to whistleblower rights, states that science managers and supervisors will ensure “additional procedures are adopted, including any appropriate whistleblower protections, as are necessary to ensure the integrity of scientific and technological information and processes on which the agency relies in its decision making or otherwise uses or prepares.” This is merely a recitation of the Presidential directive to “adopt such additional procedures, including any appropriate whistleblower protections, as are necessary to ensure the integrity of scientific and technological information and processes.”

Here, we lay out some specific recommendations on how NOAA can incorporate additional whistleblower protections into its Scientific Integrity Policy:

1.  Commit to scientific freedom provisions in Section 110 of S.743 (the Whistleblower Protection Enhancement Act of 2011), without waiting for Congress to act.

2.  Make communication of and compliance with whistleblower rights a critical element for performance appraisals of all staff with supervisory responsibilities.

3.  Commit that upon any civil service or contract employee filing of an allegation and request for investigation, the Administrator shall request an investigation by the Commerce OIG, and share the report of the investigation and recommendations for corrective action with the alleger.

4.  Establish a table of penalties for accountability of anyone found guilty of scientific misconduct or retaliation/suppression of scientific freedom.

These additional whistleblower protections would establish a clear mandate to ensure scientific integrity at NOAA. … In sum, protections should be afforded under all scenarios that could have a chilling effect on the responsible and free expression of rights.

NOAA’s response to our recommendation and comment, and those of others who commented on the need for stronger whistleblower protections, included this:

We received a large number of comments requesting enhancement of the whistleblower protections.  NOAA recognizes the importance of protecting those who report violations of NOAA policy.  For that reason, the Scientific Integrity Policy provides strong protections for those who report suspected violations.  Specifically, Section 5.04 of the policy states that: “It is NOAA policy to protect those who uncover and report allegations of scientific and research misconduct … from prohibited personnel practices.”  The Code of Ethics, Section 7.05, also requires that science managers and supervisors report any evidence of misconduct brought by a NOAA employee.  Therefore, the policy explicitly protects those who disclose evidence of misconduct.  Additionally, whistleblower disclosures are currently protected under federal statutes and regulations, and whistleblowers can file a complaint with the U.S. Office of Special Counsel or the Department of Commerce Office of Inspector General.  We are fully committed to providing information about whistleblower protections to NOAA employees, as part of the Agency’s communication of the policy required by Section 10, and will provide additional materials explaining whistleblower protections on the Scientific Integrity Commons website. …

Thus, while NOAA states its support for whistleblower protection in very general terms, the agency made no improvements in its draft text in response to our comments, nor to the “large number of comments requesting enhancement of the whistleblower protections.”

It appears that NOAA (and other federal agencies) are in need of a push from stronger legal requirements.  In their statement on the NOAA policy (“NOAA Boosts Scientific Integrity with New Policy – White House Leadership Needed to Tackle Greater Issues”) the Union of Concerned Scientists noted:

[T]he NOAA policy is limited by reforms that require action by Congress and the White House, such as whistleblower protections for those who report political interference in science and ensuring the independence of science as it goes through interagency review processes.

The Whistleblower Protection Enhancement Act of 2011 (S. 743 and H.R. 3289), currently under consideration in Congress, would correct many problems that have developed over the years to weaken whistleblower protections established by the Whistleblower Protection Act of 1989.  Among many other provisions, the bill (Sec. 110) would create specific legal protection for scientific freedom, providing Whistleblower Protection Act rights to employees who challenge censorship, and make it an abuse of authority to censor, obstruct dissemination, or misrepresent the results of federal research.

 

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