WHISTLE-BLOWERS AT RISK
Franklin, Karen
Whistle-blowers at Risk Their official 'protector' sells them out BY KAREN FRANKLIN As security officers John Berter and Charles Wallace made their rounds at the Cincinnati Veterans...
...There is no dispute—whistle-blowers have no protection...
...Justice Department officials deny any connection between the memos and the final result...
...The OSC backed Ziegenhorn...
...It has cost three officers their jobs and their careers—officers whose only crime was to perform their sworn duty by revealing criminal conduct...
...Together with the VA, the OSC crushed Berter's case, leaving him jobless and broke...
...That makes him a malcontent, not deserving of ,i the Government's protection...
...The simple fact that you say you can't come to work doesn't exempt you from your responsibilities to the organization...
...Instead of coming to Berter's defense, the OSC appeared to side with the Veterans Administration in an aggressive campaign to discredit him...
...Special-counsel investigators tried to show that Berter did not believe his own allegations...
...There is nothing in this report that exonerates officer Wilson," said Senator David Pryor, chairman of the Subcommittee on Federal Services...
...In September 1986, a memo between VA officials at national headquarters suggested that because VA administrator Thomas Turnage was a good friend of then-Attorney General Edwin Meese III, "perhaps a personal phone call would provide us with additional insight and information...
...Berter holds a master's degree in criminal justice...
...Throughout the inquiry, Donald Ziegenhorn, director of the Cincinnati VA Medical Center, complained to VA officials in Washington that the FBI refused to share information with him, these documents say...
...Theoretically, the OSC can deny help to virtually any employee by using such a criterion, because few people have never made mistakes on the job...
...For example, the special counsel is a Presidential appointee...
...Yet special counsel Mary Wieseman acknowledged privately to VA officials that Wilson's standards—no more than three errors per year—were so unrealistic that no one could have lived up to them...
...This award," says Michael Cavallo, "attempts to recognize the extraordinary sacrifices made by people who are unwilling to turn their heads and allow wrongdoing...
...We have to establish that the reasons given by the agency [for the firings] weren't true, or were just some excuse or pretext...
...But until Congress changes the OSC's role, Federal employees will have little incentive to take the risks of coming forward...
...But anyone who reads a newspaper knows that's not true, and such characterizations clearly show the OSC's unwillingness to consider individual complaints...
...On this occasion, the officers noticed that Hummons wore a plastic wrist band from a nearby hospital, and he seemed to be lost...
...But Congress reviewed the FBI report and found no merit in the Justice Department's decision...
...By the special counsel's logic, even though the allegations turned out to be true, Berter must have made them all up independently...
...It's a matter of whether the investigators can avoid being co-opted...
...The second message, perhaps more dangerous, is: Those accused of racist brutality will remain untouched while those who expose it will be fired...
...The Berters ran out of money, depleted their retirement savings, borrowed cash from their parents, and eventually went on welfare...
...In letters to the Veterans Administration obtained through Freedom of Infor- > mation Act requests, the OSC confirmed that Wilson lied under oath during its investigation, abused his authority as police ¦ chief, falsified his professional history, and misrepresented himself to his subordinates...
...K.F...
...Berter and then finishes them off," says a statement by the Government Accountability Project, a Washington-based watchdog group that provides legal counsel to Berter and other whistle-blowers...
...Indeed, Berter's adherence to principle has cost him dearly...
...The doctors provided extensive written documentation of Berter's condition to both Wilson and Ziegenhorn throughout the period of medical leave...
...Officially, the VA and the OSC each conducted its own, separate inquiry...
...The offensive, outrageous attitude the OSC displayed simply appalled us," recounts an author of the memo...
...OSC officials refused repeated requests to explain this position...
...After Berter went to the FBI, which eventually confirmed his allegations, Wilson increased the officer's workload by some 400 per cent and took formal disciplinary action against him, Berter says...
...While the FBI investigated possible civil-rights violations, the OSC looked solely into the question of reprisals against the whistle-blowers...
...What has the Government's whitewash cost us...
...It remains inexplicable why the special counsel neglected to factor Wilson's demonstrated professional shortcomings into the final equation...
...I'd be reluctant to do that too...
...But the OSC refused to work with them, says GAP attorney Thomas Carpenter...
...Representative Pat Schroeder has re- H cently asked special counsel Mary Wieseman to reconsider the Berter matter, to recognize his role in exposing brutal law-enforcement practices within the VA system...
...Wilson, under pressure from the press and outraged public-interest groups, recently quit working for the VA...
...Champions of whistle-blowers are well acquainted with the "disgruntled employee" argument...
...The other three whistle-blowers suffered similar reprisals during the same period...
...On those earnings, he had to support his wife and two children, including a newborn baby...
...In fact, the agency has earned the dubious reputation of knifing whistle-blowers in the back...
...Prior to his disclosures, John Berter received high performance appraisals from his supervisors—including Chief Wilson—during his seven years of service at the VA...
...We're following another whistle-blower case closely, where the OSC did the same thing," says a Senate staff member...
...Now Berter works part-time as a residential assistant at a halfway house, and thing are looking up, he says...
...OSC officials deny this charge...
...He now bitterly regrets that decision, he says...
...For all the OSC's efforts to dig behind Berter's assertions, the investigators gave no weight to the serious weaknesses they found in Chief Wilson's credibility...
...We have to establish that the employee reasonably believed a violation of a law or regulation occurred," explains deputy special counsel Erin McDonnell...
...Yet the OSC imposes extremely difficult standards of proof on whistle-blowers...
...They seem to get at the whistle-blower by discrediting anyone who tries to help him...
...asks Tom Carpenter in a press statement...
...John Berter and two others eventually lost their jobs...
...OSC investigators typically come from law-enforcement and military backgrounds, and therefore value bowing to the chain of command—something whistle-blowers, by definition, don't do...
...Our investigatory file covers both retaliation and brutality charges," Smith said, contradicting his earlier statement that the two probes were kept separate...
...Mysteriously, the Department decided the case did not warrant prosecution...
...Instead, Wilson gave Harvey a $50 fine and allowed him to resign...
...Federal managers, on the other hand, possessed inherent integrity and lawfulness, O'Connor said in Congressional testimony...
...Agencies have enough built-in handicaps against whistle-blowers...
...In 1985, for example, Wilson caught former "i VA employee Donald Harvey with a loaded gun and stolen Government property but failed to bring charges against him...
...The view directly conflicts with Congressional intent," says Representative Schroeder...
...A succession of misguided special counsels have closed cases on convoluted grounds, allowed Government wrongdoing to continue unchecked, and destroyed the careers of conscientious civil servants...
...In the Berter case, the OSC worked closely with the VA's inspector general to get the facts...
...Berter was removed because he was absent without leave for an extended time," Ziegenhorn said then...
...Three years ago, then-special counsel William O'Connor called whistle-blowers "malcontents," "informants," and "mental-health patients" who did not deserve protection under the law...
...He got off without so much as a letter of reprimand, much less a criminal prosecution—despite confirmation of Berter's allegations by both the OSC and the FBI...
...It has sent a clear and resounding message to all VA employees—leave your First Amendment rights at the door, because if you disclose wrongdoing, you will be fired...
...you will suffer...
...As far as I'm concerned," says Berter, "the OSC's job is nothing more than protecting Government agencies...
...Going on his past experience, Berter isn't holding his breath...
...For years, Congress has attacked the OSC for its failure to champion whistle-blowers...
...To Wilson's mind, the decision cleared him of any wrongdoing...
...While these overlapping investigations were going on, lawyers from the Government Accountability Project tried to enlist the OSC's help in restoring the whistle-blowers' jobs...
...It's a weird request to ask someone to reenact standing on a man's testicles," the Senate staffer says...
...Police brutality recurred with alarming frequency at this VA hospital, beginning shortly after Chief Wilson took over the security service in February 1985...
...The VA denies that any retaliation occurred...
...Based on this case study, the OSC's existence is counterproductive to the merit system...
...ganization which recognizes "acts of moral courage in business and government...
...The investigators maintained that Berter could neither spell nor fill out reports well enough to keep his job...
...His physicians diagnosed his condition as panic disorder, exacerbated by the fear of falling victim to Wilson's reported violence...
...The OSC backs up Ziegenhorn's contention...
...Rather, the OSC merely upholds the "merit system," the Federal Government's personnel rules and practices...
...For us to dig behind witnesses' asser- M tions isn't necessarily to take a side against them," she said...
...I'm God, and if you ever come back here again I'll make a little girl out of you...
...Knowing his philosophy of law enforcement, there's no question in my mind that he would have set me up if he had the chance, and that the VA would support anything he did...
...The chief often referred to them as "niggers," "dirt balls," "assholes," "black bastards," and "motherfuckers," accordKaren Franklin is a free-lance writer in Washington, D.C...
...For reasons that haven't been fully explained, the OSC "oversaw" the VA's part, according to Smith...
...The OSC often comes up with conclusions that are 180 degrees off base," says a staff member from the Senate Governmental Affairs Committee...
...When Congress began questioning agency officials about the allegations, Wilson started sleuthing and issuing threats...
...Federal managers don't need the multimillion-dollar hatchetman known as the Office of the Special Counsel...
...They focused on trivial differences among witnesses' accounts, seizing on such "discrepancies" as whether victims had been kicked in the "groin area" or in the "testicles...
...The ultimate lesson, writes attorney Tom Carpenter of the Berter matter, is "that at least in this instance, each dollar spent by the OSC has been a dollar spent to attack the merit system in general and in particular the rights of the victim who sought help...
...Harvey, now widely known as a confessed mass murderer, went on to kill at least twenty-one * people at his next place of employment, Cincinnati's Drake Memorial Hospital...
...The investigators probed the physicians' credentials and concluded that they lacked the qualifications to make a judgment about Berter's health...
...He refuses to discuss the issue further...
...More often, the OSC assists Government agencies in building their cases against the informers, they say...
...The facts suggest that the OSC came up with that strategy on its own and then fed it to the VA: Medical center director Ziegenhorn explained, two months before the OSC's findings came out, why Berter was fired, but he made no mention of the officer's writing capability...
...The VA defended Wilson's actions throughout the two-year controversy, but the uproar got so loud that Wilson "voluntarily" transferred to Chicago, taking a drop in rank by four positions, and finally quit his job under fire...
...This is particularly true if the special counsel hopes for a more prestigious appointment in the future, says Devine...
...In Berter's case, they haven't proven that they had much autonomy from the VA...
...Under other circumstances, Berter says, they would have tried to help Hummons, who was known as a psychiatric patient...
...But, in fact, the special counsel and the VA worked closely with one another...
...So says a decision by the OSC's parent agency, the Merit Systems Protection Board, which adjudicates the few cases the OSC defends...
...Until last December, he worked for minimum wage in machine shops and loading trucks...
...The FBI conducted an eighteen-month inquiry beginning in January 1986 and recommended that the Department of Justice bring charges against the alleged perpetrator, former VA police chief Daniel R. Wilson, Congressional sources say...
...We can't prohibit them from •' talking to agencies...
...The investigative agencies have found the allegations to be malicious lies," Wilson has said...
...After months of waiting vainly for hospital officials to stop the reported beatings and racial attacks, John Berter, Charles Wallace, and two other police officers took action on their own...
...The fact is, none of these are telling points...
...Former special counsel Alex Kozinski, now a judge on the Federal bench, even taught a course to agency managers that showed how to fire whistle-blowers without getting caught...
...M...
...In earlier interviews, McDonnell maintained that OSC investigations require extensive probing into whistle-blowers' motivations...
...The special counsel relies on such tactics...
...The Office of the Special Counsel has become notorious as the Administration's legalized plumbers unit—the agency that identifies wounded dissenters like Mr...
...The heart of the problem, though, is that the special counsel does not consider defending individual employees part of the job...
...The chief kicked Hummons in the groin several times, according to sworn affidavits...
...Whistle-blowers at Risk Their official 'protector' sells them out BY KAREN FRANKLIN As security officers John Berter and Charles Wallace made their rounds at the Cincinnati Veterans Administration Medical Center one day in early 1985, they were not surprised to find Charles Hummons asking people for money...
...After the FBI began looking into the reported abuses, three VA police officers lost their jobs...
...Critics charge that the special counsel thwarts its own efforts by going directly to 1 the agency in question for information...
...The Reagan Administration has proven over the past seven-and-a-half years—through the Iran-contra affair, the Pentagon procurement scams, and an inventory of other scandals—that the public interest requires a way for insiders to disclose corruption without suffering for it...
...Carpenter is John Better's lawyer...
...The Progressive obtained Wilson's correspondence to Berter...
...Berter turned to the Office of the Special Counsel (OSC), a Federal agency set up specifically to defend whistle-blowers from retaliatory backlash...
...Hummons was one of several regulars who often panhandled there...
...Not only must they show a causal connection between disclosures and reprisals, but they must also prove that the agency couldn't have fired them for any reason...
...But despite improvements, the OSC continues to act as an adversary rather than as an advocate of wronged Government employees...
...But the two officials paid little attention to the doctors' reports...
...Even if retaliation for a protected disclosure was the motivating factor in a personnel action, if the action can be upheld on other, legitimate grounds, the employee is not entitled to protection...
...The OSC didn't stop with Berter's doctors...
...Wrong...
...The OSC also accused Berter of fabricating his charges when he couldn't precisely reenact them...
...As it happens, Berter was the only police officer held to the strict standard, but the OSC did not find this to be important...
...But the OSC has failed to protect free speech or to encourage Federal employees to disclose wrongdoing...
...Wilson reportedly stood on the man's testicles and demanded, "Who is God...
...For an entire five-year period, the OSC did not attempt to restore a single whistle-blower's job...
...Since 1985, committees in both houses of Congress have tried to push through legislation to strengthen the OSC's commitment toward whistle-blowers, and legislators are considering two bills again this year...
...The agency has received better reviews under the current special counsel, Mary Wieseman...
...it contains many errors in spelling, including that of Berter's name...
...The Office of the Special Counsel, which was set up to protect whistle-blowers," says the Project's Thomas Carpenter, "has instead acted like defense counsel for the agency...
...This time, though, Berter and Wallace had orders from the new police chief to bring Hummons to the security office for a reprimand...
...Congress set up the Office of the Special Counsel ten years ago to defend the First Amendment rights of Federal whistleblowers and to offer the public a safeguard against Government corruption...
...After I blew the whistle, they had to manufacture and arrange the evidence to fire me," he charges...
...The OSC helps only those Federal employees who make benign disclosures that would not embarrass the Administration, attorneys for the Government Accountability Project contend...
...The arrangement imposes a built-in incentive to veil corruption in the Federal Government rather than to acknowledge and correct it, according to Thomas M. Devine, legal director of the Government Accountability Project...
...They wrote anonymously in hopes of safeguarding their jobs—to no avail...
...This case was handled in a completely straightforward fashion," said Department spokeswoman Linda Davis...
...The special counsel requested the VA's help in determining whether the brutality charges were true—despite repeated denials that the OSC concerned itself with issues other than retaliation for whistle-blowing...
...Two months later, another VA memo urged that the FBI's efforts be stonewalled: "It is our belief that nine months should be sufficient for the FBI to conclude its investigation and [we] recommend that the Administrator make the appropriate contacts at the Department of Justice to facilitate an end to the FBI's investigative activities...
...It was their opinion that they were whistle-blowers," says Ziegenhorn...
...It seems to be a pattern...
...The Board's standards effectively encourage agencies to find reasons for firing whistle-blowers after the fact, which is exactly what John Berter says happened to him...
...Testimony before the [House] Subcommittee on Civil Service showed that the special counsel closes one-third to one-half of all its cases without meeting with the complainant and without conducting any inquiry at all," Chairwoman Pat Schroeder, Democrat of Colorado, reported to Congress last year...
...In Berter's case, the OSC rigged the evidence in its attempt to prove he was a problem employee who deserved to be fired...
...Observers point to many institutional flaws to explain the OSC's failings...
...We maintain our complete independence and objectivity in each and every case," says deputy special counsel Erin McDonnell...
...It was our opinion that they were disgruntled employees because their boss raised the standards of performance...
...They sent letters to the Federal Bureau of Investigation, Congress, public-interest groups, and the press describing the abuses they had witnessed...
...But the OSC leaned heavily on such points to show that Berter didn't "reasonably believe" his own charges...
...The apparent deal-swapping also involved the Office of the Special Counsel...
...I felt my life was in danger—there's no question about that," Berter says...
...But, despite his proven record, the OSC accepted the VA's contention that he was fired because he couldn't adequately perform his duties...
...Before the OSC released its conclusion last March that nothing could be done for Berter, VA officials apparently had not thought of using the officer's writing errors to justify his firing...
...During the Reagan years, when the OSC became fully operational, the agency has turned away 99 per cent of the whistle-blowers who have sought its assistance...
...Most of the victims, including Hummons, were black...
...In May, he and three other whistle-blowers each received an award and a $10,000 check from the Cavallo Foundation, an orGovernment Whitewash Between 1986 and 1988, a number of Federal agencies joined forces to conceal allegations of police brutality, civil-rights abuses, and retaliation against whistle-blowers at the Cincinnati Veterans Administration Medical Center, according to charges by Government watchdog groups...
...When the special counsel does open an investigation, OSC investigators explicitly discourage employees from presenting evidence and often refuse to contact witnesses suggested by them...
...According to a House staff memo, the investigators challenged Berter's "motives, his allegations, his doctors, his polygraph, his supporters, the witnesses, the victims, his illness, his skills, and a prior FBI investigation that found substance to his charges...
...As his story bears out, the OSC's work clearly conflicts with its mandate to protect Federal employees' rights...
...He has accepted commendations from both the Cincinnati Police Department and the director of the Cincinnati VA hospital, Donald Ziegenhorn...
...Wilson declined to be interviewed for this article...
...That often requires extensive investigations into people's motives...
...The VA focused on charges of brutality and abuse of authority, said VA spokesman Don Smith...
...When Berter ran out of sick leave, they denied him leave without pay—which also provided a handy reason to fire him...
...It doesn't require that misconduct actually occurred, but only that the employee reasonably believed it...
...ing to affidavits by patients and employees...
...They are so inseparable it's impossible to release the VA's findings without releasing the OSC's findings...
...If someone is too panicked to come to work, that doesn't cut any ice," Ziegenhorn explained...
...Meanwhile, as they purported to probe the brutality charges, VA officials devoted substantial resources to investigating GAP's activities, Carpenter says...
...Internal documents indicate that the VA used its political clout to influence Justice's decision...
...In the office, Chief Daniel R. Wilson cut off Hummons's wrist band with a pair of scissors, turned the patient against the wall in a search position, and brutally beat him, say Wallace and Berter, who witnessed the incident...
...In 1985, the General Accounting Office reported that the OSC sent away 92 per cent of whistle-blowers in the initial screening process...
...They seemed to go to incredible lengths to undercut Berter...
...Berter went on medical leave in July 1986, more than six months after making his disclosures...
...It's really stupid to ask an agency to help build a case against itself," says a Senate observer...
...Research for this article was supported by a grant from the Fund for Investigative Journalism...
...within a few months, he knew the whistle-blowers' identities...
...Reprisals against all four officers ensued...
...Yet his efforts have not gone unnoticed...
...To Congress and other watchdogs, the agency's mission to defend the merit system looks like nothing more than a duty to protect the bureaucracy...
...OSC investigators also dwelled extensively on the leave issue in closing Berter's case, but here again, the argument seems to ignore relevant facts...
Vol. 52 • September 1988 • No. 9
