Whistle-blowers feel the ill wind of the new security nation.
With 12 years of experience in emergency planning, Columbia, Md., resident Linda Lewis is an expert in crisis management. Given the state of the world these days, you’d think she’d be working overtime.
You’d be wrong.
For the past two years, Lewisan emergency-planning specialist with the U.S. Department of Agriculture’s (USDA) Food Safety and Inspection Servicehas spent weekdays at home on administrative leave. Though a paid USDA employee, she has no duties and no responsibilities. This de facto banishment, she says, is retaliation for her allegations of inadequacies in the emergency plans supervised by her agency.
Cases such as Lewis’ are hardly uncommon, particularly in the nation’s capital. Federal Washington is a hotbed of whistle-blowing, and employees who attempt to expose malfeasance in the workplace often face reprisal from their bureaucratic employers. The Office of the Special Counsel (OSC), a government agency created to reprimand hostility toward whistle-blowers, receives about 700 whistle-blower complaints a year. In 1999, the most recent year for which data are available, the OSC conducted a full investigation into 224 complaints.
“Whistle-blowers try to tell the truth and are punished for it,” says Tom Devine, legal director for the Government Accountability Project (GAP), a District-based, nonprofit public-interest law firm that assists such watchdogs. He estimates that the GAP fields about 200 calls annually, but it formally represents only a small proportion of these callers.
“It’s the bureaucratic equivalent of an animal instinct,” Devine says of reprisal against whistle-blowers. “When someone hits you, it would be very unusual if your first reaction were to say, ‘You know, maybe I had it coming.’ You want to slap the person [and] eliminate the threat. Unfortunately, I think it’s beyond a question of right and wrong. Instinctually, that’s the way an organization reacts: on a
Already one of the most secretive peacetime executive branches in recent memory, the Bush administration has clamped down even more stringently since the Sept. 11 terrorist attacks, releasing sparse information about the U.S. terrorist investigations and military operations abroad. On Oct. 22, Secretary of Defense Donald Rumsfeld sharply and publicly criticized the unknown Defense Department employee who alerted the media to the presence of U.S. Special Forces in Afghanistan, calling the actions “a violation of federal criminal law.” Last week, the White House issued an executive order greatly restricting access to presidential records.
The reduced information flow has many whistle-blowers and their advocates wondering what the “new normalcy” will mean for bureaucratic watchdogs.
Currently, there are several laws on the books intended to protect whistle-blowers who are government employees from reprisal. The federal Whistleblower Protection Act (WPA), passed by Congress in 1989, criminalized any personnel action undertaken against an employee for disclosing what the worker believed to be wrongdoing. The D.C. Whistleblower Reinforcement Act goes further, threatening the retaliator with the possibility of a civil lawsuit or dismissal, and requiring the accused repriser to prove his or her innocence.
The District’s law was pushed through the D.C. Council in 1998, following the revelation of reprisals against two Metropolitan Police Department whistle-blowers. The pair had exposed a member of then-Mayor Marion S. Barry’s security detail as being on the payroll of a high-profile police unit despite never coming in to work. The statute was thought upon its passage to be the most stringent of its kind in the nation, but it has yet to be applied by a judge. Two upcoming legal cases will soon test its strength.
In November 1999, an epidemiologist named Madeleine Fletcher had been a public-health adviser for the District’s Department of Health (DOH) for five years when she discovered rotting and out-of-date food at the warehouse that supplied D.C. schools. Fletcher concluded that the causes of the problembroken refrigeration equipment and overstocking of foodwere chronic, so she reported it to her supervisor and to the city’s inspector general.
According to Fletcher’s lawsuit, DOH Director Dr. Ivan Walks subsequently told her that she had embarrassed the Williams administration. Shortly thereafter, her 13-month term of employment was reduced to only six, and when her newly shortened tenure expired, her contract was not renewed, despite overwhelmingly positive evaluations by supervisors in previous years.
Fletcher is suing the DOH and Walks under the Whistleblower Reinforcement Act. The statute defends District employees who divulge information that they believe is evidence of gross mismanagement, misuse of public funds, abuse of authority, illegal activity, or a substantial risk to public health. Under the law’s provision, it is illegal for a supervisor not only to respond to a “protected disclosure” with an unfavorable action (like a demotion) but also to fail to take a positive personnel action (such as hiring or promotion). Fletcher and her lawyers argue that the DOH’s failure to renew her contract falls in the latter category and that her revelation is a “protected disclosure.” The DOH denied violating the whistle-blower statute in a Sept. 21 filing in D.C. Superior Court. The case is still in the discovery phase, according to Douglas Hartnett, a GAP attorney who is representing Fletcher.
A related lawsuit, also being handled by Hartnett, is even closer to putting the Reinforcement Act in front of a judge and jury. Alfred Jacobs was the operations manager in the D.C. school system’s Division of Food and Nutrition Services who helped Fletcher in her warehouse investigation. After Fletcher’s disclosure to the inspector general, Jacobs was placed on leave and eventually terminated in January 2000 for “failing to ensure proper storage.”
Jacobs claims that overseeing food storage was not one of his job responsibilities and that he had repeatedly mentioned the problem of rotting food to his supervisors, without results. These circumstances, coupled with a series of laudatory job evaluations, led him to file suit against the D.C. Board of Education and Superintendent Paul L. Vance. His case enters pretrial mediation in two weeks.
Although the local statute has yet to be tested, the federal law has been applied many times and met with underwhelming results. Judicial interpretation, as well as the bill’s own loopholes, have minimized its power.
The WPA’s biggest deficiency, according to Devine, is that it does not prevent an employer from suspending the whistle-blower’s security clearance, a tactic he calls “a back-door way to fire whistle-blowers.”
Stephen Kohn, author of Concepts and Procedures in Whistleblower Law and an attorney for popularly maligned White House whistle-blower Linda Tripp, sees another, more basic problem: the lack of protection for workers in the private sector. “The bottom line is you have to protect the informants,” Kohn argues. “Say someone works at a company and they think that the company is somehow involved in money laundering for al Qaeda, to give you an example. And they blow the whistle. That person has no federal protection. There’s no law right now that says that if you blow the whistle on a security threat you are protected.”
Amid the post-Sept. 11 calls for increased national security, the GAP and other advocates for whistle-blowers fear that the rights of whistle-blowers may be further encroached upon. The dilemma is particularly ironic, says Devine, because whistle-blowers are one of the best forms of defense against terrorism.
“Whistle-blowers can very accurately be analogized to Paul Revere warning about the Redcoats,” Devine asserts, “only this time the warnings are even more necessary, because we frequently can’t see the enemy or the threat.”
“Secrecy,” he adds, “can be a severe threat to national security, because it covers up the governmental breakdowns that create it.”
Lewis’ case seems particularly relevant in this regard. In October 1996, she found inadequacies in an emergency exercise at a nuclear power plant along the New Jersey-Delaware border. When she attempted to report her concerns about a lack of preparedness to protect the food supply from radiological contamination, the Federal Emergency Management Agency and the state of Delaware attacked her findings.
Unable to enact change through the bureaucracy, Lewis penned a letter to U.S. Sen. Joseph Biden of Delaware. She says that the most serious reprisals against her began after she mailed it off.
“There were false accusations, a reprimand for something I never did, character assassinations, denial of benefits, forcing me to have a mental status exam by a government-paid psychologist,” Lewis recalls with a sigh. “The medical officer from the USDA wrote a letter saying that he thought I was qualified to have a clearance, and USDA officials forced him to rescind the letter.”
Because the USDA had declared all the projects Lewis had been working on to be classifiedonly after the allegations surfaced, says Lewisthe rescinding of her clearance left her with no work to do for the agency.
Lewis was stunned. “I went into government service thinking that I might be able to do something beneficial for the public,” she says, “and I thought that other people had gone into government service for the same reason. It was a shock to find out that very few people were actually dedicated to that concept and those that seemed to savor the concept were staying silent in fear.”
The Food Safety and Inspection Service refused to comment on Lewis’ case, stating only that policy prohibits discussion of personnel matters without written consent from the employee. Devine, however, says that the GAP investigated Lewis’ allegations thoroughly before taking her case. “She passed our credibility test with flying colors,” he says.
Cases such as Lewis’ are a major reason that the GAP wants to see existing whistle-blower rights expanded. Legislation sponsored by Sen. Daniel K. Akaka of Hawaii that would strengthen the WPA is currently in the hands of the Subcommittee on International Security, Proliferation and Federal Services. Lawmakers are working to rewrite the bill following a hearing in July, at which the U.S. Merit Systems Protection Board raised concerns that the legislation’s language would put additional burdens on whistle-blowers. The House Committee on Government Reform is discussing an identical bill. The legislation on whistle-blower protection is not likely to be revisited until the spring, according to an international-security-subcommittee staffer.
Along with its advocacy of the Akaka bill, the GAP has proposed another measure that it has nicknamed “the Paul Revere Bill” to further beef up the rights of whistle-blowers. Other advocates agree that the legislation is needed.
“[The Akaka] bill will help it, and it should definitely be passed,” says Kohn, “but we’re looking for something even more comprehensive. What’s needed is a federal law that says, ‘If you expose potential criminal wrongdoing to an appropriate law enforcement official, you are protectedperiod.’”
Danielle Brian, executive director of the Project on Government Oversight, a nonprofit watchdog that investigates alleged government abuses, often with the help of tips from whistle-blowers, agrees. “Many have perceived whistle-blowers as people who are simply protesting actions that they find objectionable. But what they haven’t recognized is that often whistle-blowers are blowing the whistle in warning of dangers.”
Lewis’ lawsuit is in the initial stages. The soft-spoken 51-year-old seems resigned to a prolonged legal battle. Typically, whistle-blower cases last several years. For now, she is confined to her home at a time when emergency-planning specialists would seem to be in great demand.
“I’m still very committed to emergency planning, and I would like to continue in emergency planning,” says Lewis. “But obviously I need to find an organization that is actually receptive to emergency planning.” CP