Washington insiders expose own agencies
From EPA to Park Service, whistleblowers raise policy questions in a tense election year.
By Brad Knickerbocker | Staff writer of The Christian Science Monitor, October 15, 2004

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As the election approaches, insiders and former insiders at government agencies are raising issues, revealing data, and making charges that are creating pointed disputes about the Bush administration at a crucial time in the election campaign

Some observers believe the closeness of the presidential race may be a factor prompting the disgruntled to speak out on a wide variety of issues from environmental regulations to homeland security to civil rights.

Whether the critiques come from principled whistleblowers or from people with partisan axes to grind, they are coming in unprecedented numbers, indicating that bureaucrats and other insiders have become more willing to go out on a limb to criticize the White House and agencies headed by political appointees than they may have been in the past.

The watchdog group Public Employees for Environmental Responsibility (PEER) reported last week that the number of official whistleblower reports has gone up significantly since 2001, from 380 cases that year to 535 cases in 2003.

Meanwhile, the backlog of pending whistleblower reports to the Office of Special Counsel, the federal the agency charged with investigating such complaints, has more than doubled to 690.

"Time and again, whistleblowers have proven critical to protecting the public, but their courage is wasted if their warnings just gather dust in a file drawer," says Jeff Ruch, PEER's executive director.

As the election approaches, controversial assertions have been mounting.

Recently, an intelligence official apparently leaked a classified report to show that the intelligence community was warning the Bush administration, prior to the Iraq war, of the strong potential for unrest there after an overthrow of Saddam Hussein.

And this month the EPA inspector general found that the Bush administration's new rule for industrial pollution sites had "seriously hampered EPA settlement activities, existing enforcement cases, and the development of future cases."

This week, the Environmental Integrity Project - headed by the EPA's former head of regulatory enforcement, who resigned in protest - amplified that concern, reporting that enforcement actions against air and water polluters has dropped 75 percent under the Bush administration.

Industry officials dismiss the charges as "gratuitous bean-counting," as Scott Segal, head of a group that lobbies for power-generating companies, put it.

"It is beyond doubt that power-plant emissions continue their 30-year decline, a trend that is evident during the current administration," says Mr. Segal.

Indeed, the Justice Department announced last week that FY 2004 broke previous records in forcing polluters to pay more than $4 billion to clean up their messes. In addition, Justice officials reported, courts imposed more than $181 million in civil penalties for violations in environmental cases, second only to the record recovery of $203 million in 2003.

Still, concern about environmental enforcement is widespread, with many of the complaints coming from government professionals regarding programs now under the management of political appointees who had worked in industries regulated by those programs.

With such controversies as a backdrop, a bipartisan group in Congress is pushing to strengthen whistleblower protections, an effort opposed by the Bush administration. Congress passed the Whistleblower Protection Act in 1989 and strengthened it in 1994.

But critics say the law has failed to protect federal workers because of a series of judicial decisions that have undermined its effectiveness. "The reality today is that government workers who expose wrongdoing have no legal protections against being fired or facing retaliation," says Danielle Brian, executive director of the Project On Government Oversight, a private organization in Washington that investigates government wrongdoing.

Earlier this year, for example, Teresa Chambers, chief of the United States Park Police Force, was fired for suggesting in a newspaper interview that her unit lacked the resources to protect national parks, monuments, and other sites around Washington at a time of heightened security concerns. "We will vigorously appeal this initial decision," says Richard Condit, Ms. Chambers' lawyer. "Public servants should not be fired because they tell the truth."

In August, the Interior Department's inspector general reported that many employees there fear reprisal for speaking up. A survey of some 25,000 department employees found that nearly half of those who responded (more than 6,000) "believe that discipline is taken on the basis of whom the person knows rather than what they did."

"Discipline is administered inconsistently and unfairly throughout the department," the inspector general reported.

The Justice Department's inspector general, meanwhile, is investigating several whistleblower complaints by FBI agents who say they suffered retaliation for reporting weaknesses in terrorism investigations following the Sept. 11 attacks.

In another controversial area, the US Commission on Civil Rights is holding until after the election, but conspicuously keeping on its website, a 181-page staff report concluding that the Bush administration "has neither exhibited leadership on pressing civil rights issues nor taken actions that matched his words."

"President Bush seldom speaks about civil rights, and when he does, it is to carry out official duties, not to promote initiatives or plans for improving opportunity," the report asserts. "Even when he publicly discusses existing barriers to equality and efforts to overcome them, the administration's words and deeds often conflict."

While acknowledging that the president "has assembled a commendably diverse cabinet and moderately diverse judiciary," the report's authors note that "many of his nominees and appointees do not support civil rights protections."

"The effect may be eventual weakening of civil rights laws." Republicans on the eight-member commission - evenly divided between the major political parties - argued foul play.

"I think it's an unfair report," said commissioner Jennifer Braceras. "I think it's a politically biased report, and I think its release at this time is politically motivated."

Related stories:

03/19/04
Editorial: Protecting Whistle-blowers

Protecting Whistle-blowers
When Sarbanes-Oxley - or the Accounting Reform and Investor Protection Act - was passed in 2002, it was intended to prevent massive financial debacles such as Enron and WorldCom.
But it's playing out in important ways that have to do neither with the core of the act (accounting and governance reforms), nor with the large-scale fraud originally envisioned.

Among the act's provisions are whistle-blower protections for corporate employees. Recently, a federal judge ruled that Sarbanes-Oxley extends to companies big and small.

As it turns out, small whistles can make big noises.

The first test of Sarbanes-Oxley whistle-blower protections comes in a lawsuit involving a company nowhere near the size of an Enron. It focuses on a bank in tiny Floyd, Va.

Last year, a former chief financial officer of the bank alleged accounting fraud and possible insider-trading among the bank's 600 shareholders. He was fired. He sued, under Sarbanes-Oxley, and the judge ruled in his favor. He was reinstated, though the bank plans to appeal.

Sarbanes-Oxley gave corporate whistle-blowers rights that government workers have been seeking for decades. For instance, individuals like the one in Virginia have access to jury trials in federal court.

Unfortunately, the 1989 Whistleblower Protection Act, which applies to federal workers, is full of loopholes, and a bill to close them has been stuck in Congress for over two years.

Those who challenge abuses of power both in and out of government deserve protection. Regardless of the size of the problem, the principles remain the same - creating safe and effective ways to get information out about public harm.

Congress should create Sarbanes-Oxley-like whistle-blower protections for government workers.


Enron changes climate for whistle-blowers
By Gail Russell Chaddock | Staff writer of The Christian Science Monitor

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WASHINGTON - Call her the golden girl of whistle-blowers. After months of challenging the veracity or judgment of top managers of her company, Enron Vice President Sherron Watkins hasn't been fired, demoted, or dubbed a crank. No charges have been filed against her, and her professional reputation is intact.

That's not the experience of most employees who raise concerns about their management on issues ranging from nuclear safety to airport security. Some 90 percent of whistle-blowers face reprisals or threats, according to the Government Accountability Project, a watchdog group.

"Ms. Watkins followed the approach we advise all whistle-blowers to adopt - changing the dynamic from finger pointing to constructive problem solving and warning," says Tom Devine, GAP legal director.

Watkins isn't the classic whistle-blower: She went public after being subpoenaed. Nor did her August memo warning that Enron might "implode in a wave of accounting scandals" prevent precisely that outcome.

Still, the Enron affair appears to have encouraged would-be whistle-blowers to step forward in other industries and government agencies. It is also prompting lawmakers to push for new shields against retaliation.

"We've been getting calls from many more people than we can help, especially since Enron," says Stephen Kohn, a Washington-based attorney who works with whistle-blowers.

The National Whistleblower Center in Washington reports that its calls are up tenfold this year. "Since September 11, there has been a tendency toward restricting information and making everything secret. Since Enron, we've seen an opposite effect," says Kris Kolesnik of the center.

Although more than 30 federal laws govern whistle-blowing, recent judicial loopholes mean that most employees have no protection from retaliation.

Congress's renewed focus on bolstering protections fits a familiar pattern. In the past, Congress made such moves in the wake of scandals or disasters, such as the 2000 Alaska Airlines crash that spurred new protections for airline employees. The Sept. 11 attacks are providing a similar impetus for new laws protecting national-security whistle-blowers, lawmakers say.

"Since September 11, government agencies have placed a great emphasis on secrecy ... understandably so in some cases. But with these restrictions comes a greater danger of stopping the legitimate disclosure of wrongdoing and mismanagement," says Sen. Charles Grassley (R) of Iowa.

This week, he and Rep. Steve Israel (D) of New York announced that they will introduce bills that will give whistle-blowers the freedom to report security concerns without fear of retribution. The "Paul Revere Freedom to Warn" act plugs a gap in a 1912 law that made it illegal to retaliate against whistle-blowers who are federal employees, but gave those whistle-blowers no legal remedy.

For example, there is currently no protection for federal employees exposing securities fraud, experts say. Nor do laws or administrative remedies yet cover whistle-blowers at the Federal Bureau of Investigation.

Yesterday, Grassley and Sen. Patrick Leahy (D) of Vermont introduced the FBI Reform Bill to address the issue at an agency that has been rocked by criticism of standards in its crime lab.

Such laws could change the climate for federal employees.

"I decided to take the risk that something good could come out of what I had to say, and I'll take the consequences," says Bogdan Dzakovic, a Federal Aviation Administration agent who went public this week with complaints that the FAA ignored warnings of security breaches at airports.

Some worry that the Bush administration has not extended whistle-blower protection to the newly created Transportation Security Administration.

from the October 21, 2002 edition:

Limits of a whistle-blower culture
Post Enron, tattletale stigma fade, but risks still outweigh rewards
By Jennifer LeClaire | Special to The Christian Science Monitor

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Who likes a tattletale?

Sherron Watkins, an Enron vice president, was named Time magazine's "person of the week" in January after investigators seized her memo warning then-chief executive Kenneth Lay about suspicious irregularities in her firm's financial records.

But not all whistle-blowers are applauded, say experts. More are like Shannon Doyle.

Mr. Doyle was "blacklisted" by Hydro Nuclear Services, a division of Westinghouse Electric. Just last month he asked the Supreme Court to overturn enforcement of a waiver he signed in which he agreed not to file a claim against his former employers. He says they provided bad references in retaliation for his blowing the whistle on plant safety back in the late 1980s.

And, of course, most people are familiar with Karen Silkwood, who died under mysterious circumstances in 1974 while reportedly gathering evidence of poor safety standards at Kerr-McGee's plutonium production plant in Crescent, Okla.

"Karen Silkwood and Sherron Watkins were heralded for doing a great service," says Steven Kohn, attorney and board chairman of the National Whistleblower Center (NWC) in Washington, D.C., a nonprofit advocacy organization that supports employee whistle-blowers. "But it's hard to find a job after that, because nobody wants to hire a whistle-blower."

Many firms apparently don't want to retain whistle-blowers, either. More than half of workers who flagged incidents of unlawful conduct in 2002 were fired, according to a NWC study in September. Many others said they faced unfair discipline.

But perceptions are slowly shifting, according to some experts. Employee watchdogs are getting more positive attention than ever in the wake of corporate scandals.

And last summer the federal government passed legislation mandating internal programs that encourage employees to cry foul, and require firms to provide protections against retaliation. All publicly traded companies were immediately required to set up committees to address concerns, and attorneys can be disbarred for helping clients cover up misconduct.

A recent study by Ipsos Reid, for Ernst & Young, cited 43 percent of employees surveyed reported fraudulent activities by co-workers during a recent 12-month period, mostly related to stealing office items.

Reports are on the rise in today's climate, but more are related to petty theft or discrimination, says Mr. Kohn, noting that only a handful of infractions have been reported each year in the 25-year history of environmental laws.

Experts say most employees are unlikely to speak out about more serious acts until corporate culture balances the risks with rewards.

Some Fortune 500 companies, such as State Farm insurance, Southern Company (an electric-and-gas utility firm), and Xcel Energy, actively encourage employees to come forward with information about unlawful actions.

Bentina Chisolm, attorney and manager of workplace ethics at Southern Company's Georgia Power, says posters, newsletters, wallet cards, and coffee cups urge employees to report employee misconduct.

The company offers multiple channels through which employees can anonymously lodge "concerns," including a third-party 800 number.

But Ms. Chisolm says the promotions and options don't seem to be enough. "Many employees are [still] concerned about how blowing the whistle is going to affect their careers," she says. "That is the overriding factor that keeps people from coming forth."

Fear of retaliation from co-workers is another barrier, say experts, including more subtle forms of payback, such as being ostracized. "The worst thing you can be accused of these days is not being a team player," says James Fisher, head of St. Louis University's Emerson Center for Business Ethics.

With so many negative repercussions associated with reporting unethical behavior, experts say it is unlikely that internal whistle-blower programs will expand quickly beyond complaints based on race, age, or sex discrimination, say experts.

Sharie Brown, a partner at Foley & Lardner, a Washington law firm, says companies have to remove the negative stigma attached to whistle-blowers by openly recognizing and rewarding employee watchdogs.

"There should be a special bonus for those who help the company avoid problems or minimize losses, in terms of financial issues," she says.

But some workplace experts worry that firms could become bogged down in a boom of costly, dead-end investigations.

"Corporations, scared by the headlines, are sacrificing good judgment and common sense and treating [everyone] that comes out of the woodwork as a potential 'insider,' " says Pat Gillette, cochair of Heller Ehrman's Labor & Employment National Practice Group based in San Francisco. "The pendulum has swung all the way in the other direction – which is never good."