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Getnick & Getnick is a law firm dedicated to business integrity and anti-fraud cases. Our qui tam cases have recovered more the $400 million for U.S. taxpayers.
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Monday, January 24, 2005

The hard job of blowing the whistle gets even harder

American culture has glamorized the whistle-blower over they years, from Hollywood’s feature-length films honoring their heroism to Time magazine naming whistle-blowers its 2002 Persons of the Year.  But the life of a real whistle-blower is more difficult than the media would have you believe, and is only getting more so.  This story from the Christian Science Monitor explains how and why.

By MARK CLAYTON
CHRISTIAN SCIENCE MONITOR

It was never easy to be a whistle-blower - and some say it may be getting tougher. Just ask George Zeliger. Nearly four years ago the quality-control expert warned his employer, the Massachusetts Department of Environmental Protection, that the state’s new auto emissions test was grossly inaccurate.

He was ignored. When he objected that the test was harming air quality and public health, he was cut from the program. After he went public, sharing key documents with the state inspector general and news media, the atmosphere at his workplace changed. His schedule was micromanaged; colleagues began sending him sarcastic e-mails and job ads, he recalls.

Finally, this past September, the Russian-trained mathematician and statistics whiz was ordered to spend much of his day photocopying, stapling reports and stuffing envelopes.

“My life here is hardly bearable,” says Zeliger, who came to the U.S. in 1990. “How would you like it if they sent you to the mail room to do copying and stapling? My experience with the Soviet bureaucracy tells me it is a baby compared to this one.”

Lionized by Hollywood and protected by federal law, the lone employee who stands up to a large bureaucracy has become a well-established part of American culture. In 2002, Time magazine put three whistle-blowers on its cover, lauding them as “persons of the year.”

Many sacrifices made

But the hard truth is that blowing the whistle is a long, tough slog in which people sacrifice careers, friends, and job security to do what they believe is right. And in a small corner of that world - environmental whistle-blowing - such sacrifices appear particularly extreme. Ironically, where complaint dismissals and court rulings have eroded whistle- blower protection, their numbers have increased. Yet where legal protections have grown, the number of whistle-blowers has stayed flat or even fallen.

John Fitzgerald, an analyst with the U.S. Agency for International Development (USAID), never expected to find skullduggery. His job was to evaluate proposed international aid projects to ensure that they met environmental requirements. Under a statute called the “Pelosi amendment,” U.S. delegations to the World Bank and regional development banks cannot support any aid project without an environmental review, if that project will have significant environmental effects.

But what Fitzgerald found shocked him. In some years, nearly half of funds loaned by multilateral development banks, which use U.S. funds, are for loans that receive no U.S. environmental review. Of those that are reviewed, many are incomplete or do not meet legal standards.

Fitzgerald drew attention to the Chad-Cameroon oil pipeline - one of the largest such projects in the region - which lacked detailed plans for dealing with oil spills and invasive species from tanker ballast. He reported major environmental problems with a dam project in Uganda and a nuclear reactor project in the Ukraine. For this, his position was eliminated in 2002, he says.

So he filed a whistle-blower complaint, charging that U.S. Treasury officials had pressured USAID to approve energy projects in South America, Eastern Europe, and Africa without the requisite reviews.

Vindication, finally

Jobless, Fitzgerald worked whenever he could find work and helped his lawyers prepare his case. Eventually, he opened his own law practice.

Last September, more than two years after his original complaint, the federal civil-service court, the Merit Systems Protection Board, ruled that he had been wrongfully terminated. Rather than go to trial, the government reached a settlement, which Fitzgerald and environmental groups consider a major victory.

But it has a Pyrrhic quality, too.

“It was longer and more difficult than I thought it would be - and it hurts when you can’t contribute much to your son’s college tuition,” he says. “You question whether it’s worth it all the time. But you just say, ‘I’ve got to do it because I’ve got to do the right thing.’ “ Fitzgerald is one of the fortunate ones. Despite the passage of the Whistle-blower Protection Act for federal employees in 1989, those who have filed complaints under the act face a backlog of unsettled cases and a minuscule success rate. Only 1 percent of such cases since 2001 were referred to agency heads for investigation. Of the last 95 such cases that reached the federal circuit court of appeals, only one whistle-blower won.

“When people come to us, we have to be candid,” says Greg Watchman, executive director of the Government Accountability Project, a Washington advocacy group that counsels would-be whistle-blowers in the federal government. “Under current laws protecting federal whistle-blowers, they don’t stand a chance.”

Yet they keep on trying - and not just on environmental issues. During the first four years of the Bush administration, the backlog at the Office of Special Counsel, set up by Congress to handle whistle-blower disclosures by federal workers, saw its backlog grow from 287 to 690. In addition, the OSC reports 572 new disclosures last year, the highest in four years.

The number of would-be environmental whistle-blowers contacting the Public Employees for Environmental Responsibility has also grown. PEER, which helps environmental whistle-blowers at all levels of government, has seen a two-thirds increase in the past four years.

One key factor in the boom is Bush administration environmental policies that have driven not only lower-level scientists but also more senior government managers to step forward in protest, says Jeff Ruch, executive director of PEER.

The graying of the civil service also may cause more people to blow the whistle and then retire, other experts say. Media attention may also play a role, they add.

Under growing pressure following a scathing General Accounting Office report last year, the OSC this month announced that its backlog had been largely eliminated with just 100 whistle-blower complaints now pending.

“We set up a special projects unit, a team of attorneys devoted to eliminating the backlog,” says Cathy Deeds, an OSC spokesperson. “We put them in a kind of war room for a couple of weeks to work through it. We wanted to get through it. So we did.”

Whistle-blower defense groups criticized OSC’s elimination of so many cases so quickly. But Special Counsel Scott Bloch defended it, saying in a statement earlier this month: “The mission and goals of OSC remain the same - to secure justice for all Federal employees who come to this Office expecting results. We will do so in a more timely fashion.”

While whistle-blower protections for federal employees have proven weak, they’ve improved somewhat for those in the private sector. The newly passed corporate-accountability law - known as Sarbanes-Oxley - has stronger whistle-blower provisions. But it was the new law’s requirement for employees to come forward that prompted Bill Wilson, an air quality engineer in Texas for AEP, the nation’s largest power company, to speak out.

Ordered to falsify

For months he argued with managers that the company would be required under Sarbanes to “self-report” excess emissions of carbon monoxide and particulate matter at one plant and the illicit burning of chemical waste at another of the seven plants he oversaw.

“They ordered me to prepare a false certificate (for pollution emissions) and I refused,” Wilson says in a telephone interview. “I had the forms up on my machine ready to fill them in. The boss came in and said this is the way we’re going to fill them in. I said, ‘No,’ and I left.”

After that, Wilson took his box of e-mails and other documents, which he says shows management knew of ongoing massive violations of the Clean Air Act, to state and federal environmental regulators. Although the U.S. Environmental Protection Agency has yet to act, the Texas Commission on Environmental Quality last summer issued notices of enforcement for the alleged violations.

AEP has fought the state’s claims. It also steadfastly maintains the company has done nothing wrong and denies Wilson’s allegations. Wilson was fired for other reasons, not his pollution allegations, the company said in a statement last year.

“We take our environmental compliance very seriously,” Michael Morris, AEP chairman, said at the time. “We conducted an internal investigation, reviewed the facts related to issues raised by Mr. Wilson, and determined that the appropriate corrective action had been taken or that no violations had taken place.”

Wilson, meanwhile, is looking for a job. “But I’m afraid that after going public, there are not too many companies that would want to hire me,” he says. “This carried a higher price than I thought. I didn’t think AEP would fight this to this degree. The issues I’ve raised are documented. I don’t know how you can argue against a document.”

Under the stronger protections of Sarbanes-Oxley - a whistle-blower like Wilson, for example, can move directly to a federal jury trial if the complaint is not acted on within 180 days - it’s not yet clear whether more corporate employees are stepping forward.

The number of whistle-blower complaints filed with the Occupational Safety and Health Administration has not risen dramatically since 2002, when Sarbanes-Oxley was passed. OSHA, which administers whistle-blower provisions under Sarbanes-Oxley and numerous other federal statutes, saw its total cases peak at 2,060 in fiscal 2003. But that total declined to 1,922 last fiscal year - lower than the annual totals in two years of the Clinton administration. Its environmental caseload has actually fallen 14 percent during the first four years of the Bush administration compared with the last four years under Clinton.

Because of the small numbers involved in the environmental arena - the annual peak was 85 cases in fiscal 2000 - such comparisons are not statistically significant, an OSHA official says. Still, some see a problem.

The decline “could reflect a skepticism on the part of workers that the current administration will give them a fair hearing,” Watchman says.

Back at the Massachusetts DEP, the agency is still reviewing Zeliger’s complaint. “We have fixed the problems found with the inspections and maintenance program, and the EPA regional office has approved that particular fix,” says Edmund Coletta, a DEP spokesman.

“I’m just hanging in there,” Zeliger says. Since his formal complaint, he’s been taken off stapling and envelope addressing duty. “There’s still hope,” he adds.

Posted by Qui Tam Admin on 01/24 at 05:41 PM
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