VERSE
Scheele, Roy
BLOWING THEWHISTLE PETER KOVI.F.R i ip Can conscientious federal employees be protected? Condemnation o~ public servants for their belie/ s or expressions has the inevitable result...
...The provision, however, to allow an employee sometimes to bypass administrative procedures and go directly to District Court ---and expect to be reimbursedmis a step that would immediately aid the whistleblower: Heretofore, expenses in prosecuting a case have been enormous...
...But the CSC, largely due to its dual role as overseer of a smooth bureaucratic process as well as its role to protect employees, is ineffective...
...Even the normally astute New York Times recently ran an article where it stated that "President Carter will soon make good on a campaign promise to protect federal employees who blow the whistle...
...Mso, the Leahy-Udall bill would under certain circumstances entitle the whistleblower to "seek judicial review . . . (and) the reviewing court may provide for the awarding of reasonable attorney fees...
...Rather, he was asked not to come to business meetings and social gatherings...
...That is, close observers will tell you there is a great deal of unhappiness in federal agencies, largely because of a widespread sense of betrayal: The bureaucrats see how politicized agencies have become under Carter--even though candidate Carter promised a meritocracy...
...But in the near future it seems certain that Uncle Sam will not emulate.the west coast philanthropist...
...As the Leahy report expressed it, "The extensive nature of the (CSC's) appeals process itself poses a serious problem...
...Then, twelve days after delivering his testimony, his career tenure was revoked...
...Under *the present system, the human cost as appalling, for the appellant whistleblower faces the crisis of both financial and emotional survival...
...Basically, the administration proposes to "make the bureaucracy more responsive" by giving greater power to managers_9 Says Civil Service Commission Chairman Alan Campbelh "To supply management with the kinds of tools that make it easier for management to manage...
...His job was changed from monitoring major procurement programs to overseeing food service costs in mess halls and to the construction of a bowling alley in Thailand...
...As legislative history shows, significant attempts aimed at the protection of federal employees are bound to fail...
...All of these actions could be appealed on a Reduction In Rank ac, cusafion...
...In fact, everybody who is "concerned" with the problem uses the same rhetorical line: "No more Ernie Fitzgeralds...
...Although such a prosecutor could very well be a whistleblower's best friend, it seems unlikely that such a bill could make its way through the Congress...
...In mid-January one whistleblower named Dale Kuehn, formerly of the Federal Energy Administration, received an anonymous tax-free cashier's check for $10,000...
...It appears that the higher authorities--the management in the agencies---will be able to resist the new movement --either by pressing legislators to reject progressive bills or, if legislation is passed, to obstruct implementation...
...They are all attempts 1) to permit federal workers 'to speak out openly if they see abuses and 2) to prevent the whistleblowers' superiors from harassing or punishing them...
...Adds IPS: "Workers may release information to Congress or their unions and they are granted the right to publicly criticize agency actions, especially where there is substantial evidence of wrongdoing . . . . . Violators of workers' rights would be subject to discharge and punitive damage...
...It calls for a Review Board on Improper Government Action which would investigate employee complaints...
...But a careful look at the new proposals indicates that it is likely that there mill be many more Fitzgeralds...
...In November of 1969 Fitzgerald told a Senate Subcommittee that there was a $2 billion cost overrun with the Lockheed C5-A cargo plane...
...The number of required hearings provides many chances for delay as the employees moves up through the system...
...He was not praised for saving the taxpayers' money...
...Finally, Senator Proxmire is offering one simple reform...
...In July of 1976 he was fired by the FDA for "insubordination and inefficiency_9 Said the agency: you towards your superiors directly progress and the mission_9 "The kind of behavior exhibited by scientific colleagues and administrative challenges the integrity of scientific ability of the FDA to carry out its More recently in the Carter administration, Phil Vargas---an investigator for the Federal Paperwork Commissionmwas fired for writing about how the Executive branch hides and manipulates information...
...This ability to appeal had been crucial for it was a way that whistleblowers had a chance to redress their problems...
...Hence, its chances of passage are greater...
...A second problem with Carter's proposal is the establishment of a Merit Protection Board, designed, it is said, to protect whistlr However, the Board would not be able to take action against managers who are political appointees and, so, the Board's power would be greatly hampered...
...A second possible flaw is in the provision that the Board's findings should he passed to the Justice Department or the GAO...
...In addition, the Institute for Policy Studies--which is sponsoring seminars and meetings of whistleblowers-has offered a "model statute...
...At best, there could be some resistance to increasing the power of federal managers...
...In addition, Fitzgerald is now $400,000 in debt because of legal bills, and he has had to sue the Civil Service Ccmmission for failing to enforce its 1973 decision to restore him to a job with equal responsibility...
...Ironically, Vargas's report emphasized the plight of the whistleblowers, about how the bureaucracy works to destroy them...
...At the moment, as a recent Congressional report stated, "the sincere whistleblowers' experience is coloredby confusion, hypocrisy and uncertainty...
...Condemnation o~ public servants for their belie/ s or expressions has the inevitable result of substituting pallid orthodoxy /or the independence of thought, ingenuity and boldness of decision which e~ective public service demands...
...Then, the Review Board could forward the information to the Justice Department and the General Accounting Office whence those agencies could investigate more thoroughly...
...He would be legally entitled to investigate any suggestion of wrongdoing, whether the actions were reported by government employees, citizens, the White House or the Congress...
...In all likelihood, it seems that those who have already blown the whistle will become more celebrated and will be made heroes...
...A federal employee, motivated by a personal or professional Code of Ethics attempts to cotcorrect a problem at the risk of career, financial security and reputation...
...As most close observers see it, a lowly federal employee will find little sympathy from those "investigative" agencies...
...In short, the warble of the whistleblowers will continue to fall on deaf ears...
...He would also have the authority to initiate a probe...
...Eventually, however, he sued and was able to get back his job at the Air Force, even though he is, at present, forced to do trivial work...
...He returned to his office as a public figure but found that be was received as a private enemy...
...an agonizing decision...
...injustice William O. Douglas In 1951 U.S...
...These include, among others, detail ~, transfer, staff changes, lack of recognition for ideas, \physical isolation and refusal to assign substantive work...
...Even candidate Carter cited Fitzgerald in 1976 as a "case where a dedicated civil servant was fired . . , and which must never be repeated...
...If the Justice Department failed to prosecute after 180 days, the citizen would have the specific right to petition the federal court...
...In 1978malthough the motives of the Congressmen are different--there are a half dozen whistleblower bills, including one passed in the Senate last month as part of a Civil Service Reform Bill...
...At any rate, while a great stir and brouhaha can be expected, there is little chance that the status of honest federal employees will be dramatically-changed...
...In an apparent reenactment of "The Millionaire" TV series, a foundation executive from northern California had decided to reward him...
...It has now been nine years since a superb public servant has been allowed to do his work...
...Too, there was Dr...
...Although there are many legal procedures by which he is supposed to be able to redress his grievances, none of them works...
...The most distinct part of the Nader plan is in the scope of the powers of the prosecutor...
...or blow the whistle and suffer the consequences...
...On the surface it would seem like a reform whose time has come...
...As a consequence, most current reform proposals are aimed at improving personnel procedures so that it will be easier for the whistleblow~r to speak openly...
...After telling the Congress in December of 1976 about shoddy enforcement of regulations by the Nuclear Regulatory Commission, they were assigned to menial tasks outside their areas of expertise...
...All of the bills have language similar to Nixon's...
...Kuehn had accused his FEA superiors of silencing an investigation into oil and natural gas deals in Florida...
...One progressive measure has been promulgated by Senator Leahy and Congressman Udall...
...Under the Carter legislation, for example, employees (including whistleblowers) will no longer have the right to appeal to the CSC when they are given a Reduc15 September 1978:592 tion In Rank order...
...Again, as with the Nader legislation, this sort of law will probably seem heretical to the 95th Congress...
...Indeed, these measures are part of an entire movement that is aimed at the liberation of this country's 2.8 million federal employees: National Conferences are being held, organizations such as the American Association for the Advancement of Science are offering symposia, some whistleblowers are trying to organize themselves, federal unions are examining the situation, Ralph Nader's Congress Watch has proposed new procedures to help them, congressional hearings have been held and the Carter administration is pushing its recommendations for "reform" of the Civil Service System, the head of the CSC declaring that the White House regards this situation with the same urgency as the Panama Canal Treaty and the energy bill...
...The Carter administration's legislative package is perhaps the most dangerous for, to a large extent, it is masquerading as reform...
...The bill said that it should be a "violation of law for any officer of the federal government to dismiss or otherwise discipline a government employee for testifying before a committee of Congress...
...His bill would permit any citizen, including federal employees, to petition the Justice Department tO start criminal proceedings agaim;t a federal official who is accused of a felony...
...Nevertheless, some have spoken out and in recent years whistleblowers have publicly revealed defense cost overruns, unsafe nuclear power plants, questionable drugs that have been approved by the Federal Drug Administration, federal-private contract illegalities, conflicts of interest, merit system violations and regulatory indifference...
...Under the plan, whistleblowers would be offered many protections...
...The federal employee who witnesses governmental abuse is faced with...
...2232...
...When the swine flu immunization program was announced, Morris led a vocal campaign to stop it...
...The advantage of the Proxmire plan is to give whistleblowers more leverage and, simultaneously, avoid the creation of another administrative agency...
...Perhaps the best example of what happens to one is Ernie Fitzgerald, a Defense Department cost analyst...
...As a columnist for Federal Times,, Inderjit Badhwar, phrased it: "It was as if one of the characters from his study had jumped out of it and assumed the name of Phil Vargas...
...Ralph Hader's public citizen lobby has urged the establishment of an internal "prosecutor for the government" who would watch over the merit system and handle complaints against the federal system...
...Later, the Pentagon's Office probed h's background and, increasingly isolated from his of Special Investigations as one result, he was fellow-workers...
...Also, those whistleblowers who decided to reveal their names to the new office would not be named by the Counsel...
...That is, managers have traditionally used a variety of informal types of harassment (making a whistleblower travel in order to disrupt his family life or by "layering" so that there is another rank installed above the whistleblower...
...Unfortunately, however, this idea may be too liberal for the Congress and it may be killed before it can be, come law...
...In late 1969 he was removed from his job in an unprecedented one-man Reduction in Force...
...But his experience and sense of realism tell him that superiors in the agency want "team play...
...However, at least for the nxt few years it looks like the conscientious worker will either have to suffer in silence...
...Most importantly, this prosecutor would have to accept accusations, including anonymous tips, of alleged of_ ficial harassment...
...Obviously, if this legislation is turned into law, the whistleblower's chances are diminished...
...Similar "rewards" have come to nuclear scientists Demetrios Basdekos and Angelo Morinos...
...In addition to all of the aforementioned "outsiders" who are urging reform, there seems to be a change in mood among the bureaucrats themselves...
...The process can span several years and is exacerbated by the fact that the original action remains in effect until the grievance is resolved...
...but that those who continue to toil in the bureaucracies will be stifled...
...Committee staffers who may be looking at this legislation believe that such a powerful new office would in the eyes of members be too threatening to governmental stability...
...Undoubtedly, if a federal worker had not been bold enough to expose" such abuses, the public would still be unaware...
...Often, the situation becomes a personal problem to be resolved _9 _9 / by Civil Service Commission procedures...
...Since the Board's members are all to be presidential appointments, one wonders if--like other regulatory agencies--it would not tend to respond to the "establishment" agency chiefs...
...Senator Richard Nixon introduced a bill that was designed to protect whistleblowers, federal employees who disclose government waste or corruption...
...But instead of being rewarded for their efforts, whistleblowers are harassed out of their jobs...
...Anthony Morris, formerly of the National Institute of Health and the Federal Drug Administration...
...According to a report on whistleblowers that was issued by VerCommonweal: 591 mont Senator Patrick Leahy, "the specific harassment has t~ken many forms...
...The Review Board could help or hinder an employee, simply by being a new forum...
...His idealism makes him believe in the Code of Ethics for Government Service which directs him to place "loyalty to the highest moral principles and to country above loyalty to persons, party, or Government Department...
...At present, if a federal bureaucrat wants to improve the quality of public service by rev~ealing wrongdoing, the issue will almost certainly change from the substance of his arguments to his own behavior and conduct...
...Most important, this measure can escape the politically potent conservative charge that there will be "more bureaucrats...
...Whistleblowers are seen as having publicly humiliated their agency...
...Naturally, the motive behind young Nixon's legislation was to encourage federal employees~ to expose fellow workers as Communist sympathizers...
...A Fair Hearing The essential question is how to insure that the honest federal employee can get a fair hearing...
...Commonweal: 593...
...It includes a provision to make "government officials individually liable for discriminating against employees who exercise broadly interpreted disclosure rights...
...so, irrespective of an individual's merit or 'performance, he is "removed...
Vol. 105 • September 1978 • No. 18
