Could clearance rules put whistleblowers at risk?

A proposed rule change to streamline the process of conducting security investigations of federal workers in sensitive posts potentially expands the number of positions deemed "sensitive," and critics worry that the measure could be used to deprive whistleblowers of civil service protections.

The proposal, from the Office of Personnel Management and the Office of the Director of National Intelligence, is intended to harmonize the way agencies determine eligibility for posts requiring security clearances, or otherwise afford access to sensitive information or restricted facilities. The goal is to allow agencies to rely on one another's assessments for federal workers moving between departments, eliminating the need for duplicative investigations.

The rule also contains the provision that the new rules are not "intended to confer any new or additional rights of appeal" for those who have been found ineligible to obtain or continue in a sensitive post. The change, said Tom Devine of the Government Accountability Project, could permit the government to "rebrand virtually any significant, meaningful job in the government" as sensitive.

Devine worries that the change creates a loophole for punishing whistleblowers – federal employees who reveal insider information to Congress or the press with an eye to exposing fraud and mismanagement.

Whistleblowers are explicitly protected from retaliatory termination under federal law. Such cases are typically adjudicated by the Merit Systems Protection Board. However, an employee who becomes ineligible to hold a job for security reasons can't appeal that decision to the MSPB. "All an agency needs to say is that you're a security risk," Devine said, "and your rights turn into a mirage."

A surprising number and variety of government jobs already require security checks, said, John Palguta, vice president for policy at the Partnership for Public Service. Human resources jobs that give employees access to databases of sensitive personnel data, for example, or jobs in which workers are authorized to write checks on behalf of the federal government are posts that are classed as sensitive even though they are not directly linked to national security risks.

"I don't think this proposed new rule is going to change the status quo very much, said Palguta, who has worked at OPM and MSPB. "It will bring some consistency to the process that I think is needed."

OPM and ODNI are collecting comments on the new rule proposal through June 27.