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The following was downloaded from the SNAFU BBS (202) - 547 - 6238
***** HELP ***** Call Greg Williams, (202) 543-0883, with any questions
Greg is the "SYSOP" or system operator
The main sections of SNAFU are as follows --
Input / Output - No-nonsense access to Project files. Uploads and
downloads in a few keystrokes. A list of recent releases is
provided. For more complete lists of our files, and search
functions, see library section.
Latest News / Hot Tips - Tips on possible stories, including safety and
quality allerts we receive directly from industry and
government.
Whistleblower Survival Guide - Access to the Project's 50 page advice
handbook for those who see things going awry in the
workplace. Includes sections on the law, the press, Congress
and Federal agencies.
Message Center - Public and private messages can be left and received.
You can address questions or special requests to "SYSOP".
Libraries - This is where SNAFU holds the most information. One can
either "Browse" files by subject heading, or "Research" by
keyword searches. Searches will list Project materials
available on SNAFU, as well as citations of all
defense-related GAO reports from 1987 on.
Entering Commands:
When deciding on what to type next, look carefully at the bottom of the
screen. One of several types of prompts will appear:
More [Y]es, N)o, C)ontinuous, A)bort?
This means the computer has more information than can fit
on one screen. Type one of the letters in parenthases, and
press ENTER. ("No" is essentially the same as "abort")
Choose a letter and press ENTER
This refers to the menu given above. Type the letter
corresponding to the item you want, and press ENTER
Search for (in file name/desc, wildcards name only, [ENTER] quits)?
This relates to the search function. Type one word. The
computer will then search for this word in all the titles
under the list(s) you have selected.
As a rule of thumb, read the prompt carefully to see what kind of
response is required. If there is any doubt, ENTER will often return
you to the previous menu. If the computer informes you of an "INVALID
RESPONSE", read the directions again to see if you have misunderstood
something. If instructions seem unclear, please call me (Greg) or
leave a message to the "SYSOP".
<20><><EFBFBD><EFBFBD><EFBFBD><EFBFBD><EFBFBD><EFBFBD><EFBFBD><EFBFBD><EFBFBD><EFBFBD><EFBFBD><EFBFBD><EFBFBD><EFBFBD><EFBFBD><EFBFBD><EFBFBD><EFBFBD><EFBFBD><EFBFBD><EFBFBD><EFBFBD><EFBFBD><EFBFBD><EFBFBD><EFBFBD><EFBFBD><EFBFBD><EFBFBD><EFBFBD><EFBFBD><EFBFBD><EFBFBD><EFBFBD><EFBFBD><EFBFBD><EFBFBD><EFBFBD><EFBFBD><EFBFBD><EFBFBD><EFBFBD><EFBFBD><EFBFBD><EFBFBD><EFBFBD><EFBFBD><EFBFBD><EFBFBD><EFBFBD><EFBFBD><EFBFBD><EFBFBD><EFBFBD><EFBFBD>ͻ
<20> "Courage Without Martyrdom:" <20>
<20> "A Survival Handbook for Whistleblowers" <20>
<20> (For a hard copy, download WBSG.WP5) <20>
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<20> Blowing the Whistle...............................1 <20>
<20> <20>
<20> Getting Prepared..................................2 <20>
<20> <20>
<20> Levels of Whistleblowing..........................3 <20>
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<20> The Downside of Whistleblowing....................4 <20>
<20> <20>
<20> Neutralizing Dissenters...........................5 <20>
<20> <20>
<20> Neutralizing Dissent..............................6 <20>
<20> Q - Previous Menu M - More Whistleblower Handbook <20>
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<20> <20>
<20> Whistleblower Checklist..................7 <20>
<20> <20>
<20> Whistleblowing Outlets.......8,9,A,B,C,D,E <20>
<20> <20>
<20> Defending Yourself...................F,G,H <20>
<20> <20>
<20> Security Clearance.......................I <20>
<20> <20>
<20> The Promised Land........................J <20>
<20> <20>
<20> Choosing an Attorney.....................K <20>
<20> <20>
<20> Conclusion...............................L <20>
<20> <20>
<20> M - Top of Handbook Menu <20>
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This handbook was prepared by the staff of the Project on Military
Procurement and the Government Accountability Project. Special thanks
to Julie Stewart for her work.
Authors
Julie Stewart Thomas Devine Dina Rasor
BLOWING THE WHISTLE
This handbook is designed to help you decide whether and how to
blow the whistle on fraudulent or wasteful activities in the
government or industry. You may want to remain anonymous when you
blow the whistle or you may want to go public. We want to help you
make that decision and find the most successful way to do it. We will
tell you what your rights are under the law but also about the
realities of trying to obtain those rights.
This handbook will show you the many pitfalls of whistleblowing
and what the system usually does to individuals who attempt to tell
the truth. If you decide to blow the whistle, we want you to do it in
a smart and informed way that will give you a chance for success.
This is a decision that will affect your future, your family, and your
career. A well-planned strategy has a chance of succeeding, but
unplanned or self-indulgent dissent is the path to professional
suicide.
In theory, whistleblowers have the same set of rights of free
speech and the right to petition Congress as any other American --
these rights are guaranteed in the Constitution. However, our
government institutions have whittled away effective remedies for
these rights. One example is demoting federal whistleblowers to a
minor league and bureaucratic law system rather than having the right
of redress in our Federal court through a jury trial before their
peers.
This handbook has several sections on how to blow the whistle and
attempt to protect yourself in the current inequitable system and also
has a section that tells you what must be done to make the system
truly work for the whistleblower. We want people to understand how
the system must change to be effective but if you want to blow the
whistle now, we will let you know the realities of the current system,
so you can make a clear-eyed decision about doing it.
GETTING PREPARED
Blowing the whistle is a high stakes game with a winner and a
loser. You may not believe your employer is your adversary, but the
record shows that employers often do not want to be told what is wrong
with their operations. They often greet the bad news by trying to
silence the messenger to avoid any bad publicity. Whistleblowers
often are harassed, socially ostracized, and fired from their jobs.
Those who aren't fired often are not given meaningful work again.
That is why a carefully planned and executed strategy is crucial to
winning. To protect yourself from employer harassment after blowing
the whistle, these basic survival strategies are recommended.
* First, before taking any irreversible steps, you should talk to your
family or close friends about the decision to blow the whistle. One
of the most serious risks of whistleblowing is family breakup. The
entire family will suffer the resulting hardships. If you choose to
challenge the system without your family's knowledge or approval, you
may lose them in the aftermath -- a sacrifice greater than the
professional consequences.
* Second, before breaking ranks, you should consider whether there is
any reasonable way to work within the system by going to the first
level of authority. It is crucial, however, that you do it in a way
that does not sound the alarm to trigger a coverup or expose yourself
unnecessarily. Surprise attacks are not taken as seriously compared
to showing that authorities responded to notice by ignorance or
attempted to coverup the problem. It is very hard to do this
successfully, especially if you are exposing serious wrongdoing. In a
low-key, non- accusatory manner, you could, in writing, make it clear
what is wrong and what you position is on the matter. You should not
be pushy or demanding if you try this but it might be useful to your
credibility to see if anything can be done internally before risking
your career. Unfortunately, if you reveal yourself as a threat, you
may be setting yourself up or letting them have time to cover up the
problem. But if there is no record of your prior objection, the
system may respond by making you the scapegoat for the misconduct that
you have attempted to expose. Then your effort would be diverted to
proving that you were not responsible for the wrongdoing.
In many situations it is unwise or impossible for the
whistleblower to complain internally, especially if you are exposing
serious fraud and waste. It is hard to decide how far to protest in
the system if you plan to remain an anonymous whistleblower. The
decision not to inform anyone internally must carefully be made on a
case by case basis. If you make a record of protest in the system and
then the problem is exposed publicly, you may draw suspicion to
yourself. You must weigh the risks and decide what is the best way to
go in your unique situation. This decision could be one of the
hardest judgment calls for you to make and we suggest that you talk to
the Project on Military Procurement or the Government Accountability
Project if you are unsure what to do.
* Third, you should be alert and discreetly attempt to learn of any
other people who are upset about the wasteful or fraudulent activity.
Through strategic, but casual, questioning and discussions with
co-workers, you can learn whether your objections are credible among
colleagues and whether you see enough of the whole picture to make
sure that your suspicions are well founded. Your colleagues may be
important witnesses in the future and may know more about the
situation or confirm that the problem is more widespread than you know
about. However, again you should be careful not to expose yourself in
the process as a threat to the organization's policies or be labelled
as a troublemaker.
* Fourth, you should be on best behavior with the administrative and
support staff. Managers who respond to dissent with harassment and
repression may use that same approach routinely with secretaries,
clerks and other assistants. These people can be a great help to you
in the future by providing you with discrete warnings or later on,
with testimony as to management motives.
* Fifth, before and after you blow the whistle, it is very important
to protect yourself by keeping a careful record of events as they
unfold. Not keeping good records of harassment and other activities
is one of the biggest mistakes that whistleblowers make. There are
several good ways to do this and the time you take now could be very
valuable in any investigation or court proceeding.
Keep a diary -- Keep a factual log of your work activities
and what is happening around your workplace. Try to keep this diary
as straightforward as possible, leaving out any speculations, personal
opinions, or any animosity you may have towards the situation you are
in or towards your fellow workers. The diary does not have to be kept
on a daily basis, but it is important to write down events that relate
to the fraud and waste you are planning to report or any harassment
you are receiving because of your objection to it. Make sure that
each entry is dated and initialed by you.
Memoranda for the Record -- When you have an important event
or conversation about which you want to make a permanent record, you
should make a memorandum for the record. Place the title, Memorandum
for the Record, at the top and then write down everything you can
remember from the conversation or event. Then you should sign the
memorandum, date it, and if possible, have someone witness it. If you
need to write a memorandum for the record about a conversation or
event where it will be your word against someone else's, the safest
way to proceed is to write the memorandum, make a copy, seal it well
in an envelope, and mail it to yourself. Once it is sent through the
mail it will be postmarked and you should store it in your records
without opening it. Then when you need to prove your claim, the
sealed envelope will show that you wrote the memorandum on the
postmarked date.
* Sixth, you should identify and copy all necessary supporting records
before drawing any suspicion to your objections. Access to
information could be cut off once the exposure of potential waste or
fraud is identified as a threat to the organization. Even if you plan
to remain anonymous, it is important to have a copy of all relevant
documents because once the problem is exposed, documents may be
destroyed or hidden. Either way, it is very hard to blow the whistle
successfully without credible documentation to back up your claims.
Documentation that is generated by the organization itself is the best
documentation. Written explanations by you are not considered good
documentation. Look around and you will find that many managers, when
forced to do something that could later blow up in their faces, will
keep a "Pearl Harbor file" to show that they were only following
orders. Those files can be very valuable in trying to prove fraud and
waste. If you cannot copy all the documents, make copies of the best
supporting ones and then make a list of the rest so that you can tell
an investigator or a court exactly where to go to get the rest of your
supporting documents. Be warned, however, that some employers such as
the Department of Justice and certain companies will accuse you of
"stealing" their "property" when you make copies of the evidence
incriminating them. So far this claim has been a repressive bluff,
except when the information's secrecy is specifically protected by
law. This reaction by the bureaucracies and the companies has had a
chilling effect on obtaining documentation by dissenters but you need
to have documentation to be credible to people outside the
bureaucracy.
* Seventh, you should research and identify elected officials who have
proven their sincerity, journalists, and relevant non-profit
organizations who can help expose the fraud. To have any realistic
hope of survival, you have to go on the offensive. For whistleblowers
as much as any other form of conflict, the best defense is a good
offense. It is essential to develop a support constituency whose
interests coincide with your career survival. Regardless of legal
rights, whistleblowers usually win when they successfully communicate
their message to the majority of citizens who should be benefiting
from their dissent. When they don't, they lose. Truth is still the
most powerful political weapon in our society -- unless it is a
secret, in which case it can be dangerous.
However, it is important not to contact the press or the Congress
until you have definitely decided to blow the whistle, and decided
whether you plan to be anonymous or public. Whistleblowing is not
something you want to try to do alone without help outside the
bureaucracy.
When you have made the decision, it is critical to remember that
you must be on the offensive and not just react to the bureaucracy's
or company's efforts. Once you are reduced to responding passively
and once you have stopped setting the agenda, you will probably lose.
When the wrongdoing is exposed, the system should be reacting to the
press, the Congress, the courts, and the public. Having your support
constituency informed and working with you will help you remain on the
offensive. Don't underestimate their advice and support.
* Eighth, you should either invest in the funds to get a legal opinion
from a competent lawyer or talk to a non-profit watchdog organization
about the potential retaliation you could incur, the odds for a
successful defense, how much it could cost to defend your rights, and
whether there are truly legal restrictions on any of the evidence you
may be considering for disclosure. The Project on Military
Procurement (PMP) and the Government Accountability Project (GAP) can
give you advice, help you plan a legal strategy, help you decide about
reporters and members of Congress as well as advising you about legal
counsel.
One way to help your credibility is to make sure that you do not
embellish your charges. It is far better to understate rather than
overstate your case because the bureaucracy can leap on every slight
exaggeration and use it to discredit you. We usually advise
whistleblowers to tell the Congress and the press 80 percent of your
knowledge of the fraud and waste and give them ways to discover the
last 20 percent themselves. The less you skate on thin ice with your
information, the more credible you will be to people who can help you.
Although this list may seem overwhelming, you will appreciate its
value after learning the techniques used in organizational reprisals
against whistleblowers. Taking on the system can be the best or worst
decision of your life. If you intend to win, you might as well
prepare and be smart about blowing the whistle.
LEVELS OF WHISTLEBLOWING
You need to consider at what level you want to blow the whistle.
You can go public with your knowledge or remain an anonymous source.
This decision depends on the amount and type of documents you have and
your willingness to take intense public scrutiny. Some potential
whistleblowers imagine that there is some glamour in becoming the
public crusader for truth, but most will tell you that the mental
anguish tarnishes any ego boost that you may anticipate. If your main
motivation is revenge, fame and recognition, you are doing it for the
wrong reasons and the system will be very effective at smashing your
ambitions. Do not forget that today's news is tomorrow's fishwrap.
Long after the public has forgotten that you were a hero, your
superiors and the system will remember what you did to them.
Also, you should not be deluded that if you just get up and tell
the truth that everything will be fine. We have been brought up with
the idea that no matter how bad the circumstances, if we just tell the
truth, we will not get spanked. There is often no justice for a
public whistleblower, just the internal satisfaction that you did the
right thing, and that you lived your values instead of stopping at lip
service. If you approach your whistleblowing with the idea that this
is all you will receive, everything else will be a bonus.
Once you become a public whistleblower, you must accept the
responsibility of following through on your charges. Besides the
social responsibility, it is almost impossible to stop mid-stream and
have any hopes of surviving the ordeal mentally or professionally.
Remember the quote from Admiral Hyman Rickover, "If you must sin, sin
against God, not against the bureaucracy. God will forgive you but
the bureaucracy never will."
The positive side of being an anonymous whistleblower is that you
may protect your career. However, you often are limited in what you
can expose because you have to make sure that the documentation that
you leak is self-explanatory and can stand on its own merit since you
cannot go public with an explanation. You may, as an anonymous
whistleblower, be able to tell another source, a reporter or your
representatives at a non-profit organization the explanation behind
the documentation. You also have to be careful that it cannot be
traced to you. Sometimes the substance of the charges can have your
"signature" because, due to your job, you are the only person who
could be aware of a problem or have unique access to the important
records. The Project on Military Procurement and the Government
Accountability Project have devised some successful ways to avoid
having a document traced back to a whistleblower, but it is virtually
impossible to guarantee that the documents cannot be traced back to
you.
Another good thing about being an anonymous whistleblower is that,
since you are not known, you are in a position to watch from inside
how the bureaucracy tries to coverup the fraud and waste once the
problem is public. We have had whistleblowers on the inside who have
leaked information and then were actually on the "damage control" team
that was intent in covering up the fraud. Public whistleblowers
usually are isolated from the bureaucracy once they are exposed.
After the flow of information dries up, it is hard to rebut whatever
the system claims it is doing to solve the problem or if they deny
that there is a problem.
To be a successful anonymous whistleblower, you must have a good
way to leak the documentation. If you decide to blow the whistle,
this handbook lists potential outlets and the best way to approach
them.
The worst thing you can do as a whistleblower is to remain
semi-anonymous. If you are suspected of the leak but are not publicly
known, you have the worst of both worlds because the system will begin
to retaliate without you having the benefit of outside resources to
blunt that attack. It takes a certain personality to leak information
anonymously while remaining cool enough not to draw suspicion. If you
don't have a good poker face and you think that there is no way to
leak the documents without it being traced to you, you are better off
going totally public or not blowing the whistle at all.
The decision over whether or not to be a public whistleblower is a
judgement call on your part. You can get advice but you know the
circumstances better than anyone else.
THE DOWNSIDE OF WHISTLEBLOWING
Another consideration before you blow the whistle is to understand
and expect the downside of your actions. Besides the obvious problems
of whistleblowing such as losing your job and unresponsive agencies
that often don't protect you, there is also an emotional and mental
price to pay for whistleblowing. People who have been lifetime
friends may turn against you and the people who work with you may
treat you as an outcast. Often, in communities that depend on the
industry or government money for its livelihood, people will ostracize
you and perhaps your family.
This kind of constant, negative pressure can color your judgement
and make you paranoid about every event. This works in the
bureaucracy's favor if it wants to paint you as an unreasonable,
possibly deranged, person whose charges should not be taken seriously.
To succeed you must be able to rise above this trap and most
importantly, keep a sense of humor about life and your situation.
It also helps to have another job or a hobby that takes a good
portion of your time so that your whistleblowing activity does not
totally dominate your life. Doing this will help you keep your
perspective that there is more to life than whistleblowing.
It is true that whistleblowers often face some type of
surveillance from either the government, the industry, or some other
private investigator. This experience can be very troubling and can
add to the misery of blowing the whistle. While it is important to
document any suspected surveillance through a diary or a memorandum
for the record, it is also important not to let suspicious activity
get to you. We often advise that if someone is watching you, he or
she wants you to become affected by the surveillance and to act
irrationally about it. It is to the benefit of your detractors for
you to sound crazy to the general public by saying that your phone is
tapped without having proof. Remember, if you have nothing to hide,
there is nothing to fear about being watched. It is very hard to
prove that you are being watched or that your phone is being tapped,
so the best way to deal with this problem is to be careful about
information you give over the phone and don't become paranoid about
it.
Another important personal consideration in your attempt to blow
the whistle is to make sure that you do not have any hidden skeletons
in your closet that you do not want to be made public. It is fairly
typical that the people who are the object of your whistleblowing will
work very hard to find some flaw in your past or in your character and
attempt to exploit it. So, a major consideration in blowing the
whistle must be your ability to withstand intense personal scrutiny.
If you haven't paid your taxes or are having an extramarital
relationship, you must be prepared for this to become public. In the
words of the famous reporter Clark Mollenhoff, you must be prepared to
live with the whole record.
If you decide to blow the whistle, you will be taking on a very
large bureaucracy or company that has a large pool of resources to
attempt to discredit you. The odds can be against you but if you have
good solid documentation and a network of people helping you, you may
be able to expose the fraud and waste and still survive
professionally, financially and emotionally. Don't underestimate the
forces against you when large sums of money and political influence
are involved. The decision to blow the whistle is ultimately yours,
even after you have prepared your case and received good advice.
The following is a list of how the bureaucracy can try to
neutralize public whistleblowers. (See next section,
"Neutralizing Dissenters").
Neutralizing Dissenters
-- Make the whistleblowers, instead of their message, the issue
The first commandment for this tactic is to obfuscate the dissent
by attacking the source's motives, professional competence, economic
credibility, sexuality, or virtually anything else that will work to
cloud the issue.
For example, when Three Mile Island engineer Richard Parks
challenged sloppy cleanup practices that could have rivaled the
accident, his employer's first reaction was to brush aside the safety
issues and place Parks under investigation for alleged financial
conflict of interest. Parks was not vindicated until he went public
and sought help from the Department of Labor, Congress, and the
Nuclear Regulatory Commission (NRC). All three supported him, and the
NRC ordered cleanup procedures to be rewritten and extensive tests to
be conducted. Over a year later the challenged cleanup was conducted
lawfully.
- Isolate the whistleblower
One technique is to transfer the whistleblower to a bureaucratic
Siberia, both to make an example of the whistleblower and to block the
employee's access to information. After Food and Drug Administration
quality control chief Dr. Joseph Settepani protested introduction of
well-known carcinogens and mutagens into the food supply, he was
reassigned to long-term research in a trailer on an experimental farm.
Federal Aviation Administration (FAA) engineer James Pope served
as the agency's ombudsman for the general aviation constituency, until
he pursued the wrong issue -- FAA suppression of an industry-developed
backup device to warn pilots of impending midair collisions. The FAA
reasoned that certifying the private device, which had passed all
agency tests for feasibility and reliability, would obviate the
agency's own budgeted long- term research and development program for
a backup to the Air Traffic Control system. After Pope dissented, his
superiors reassigned him to Seattle, Washington, where his duties
vanished, except for tasks such as selling bonds to local Boy Scout
troops.
-- Put them on a pedestal of cards
Another technique involves appointing the whistleblower to solve
the problem and then making the job impossible through a wide range of
obstacles undercutting any realistic possibility of achieving reform.
The finale is then to fire the employee for incompetence when the
problem is not solved.
Engineer Bertrand Berube was a victim of this tactic at the
General Services Administration, where Administrator Gerald Carmen
assigned Berube to correct serious building code violations --
numerous fire and occupational safety hazards Berube had identified at
several federal facilities. Unfortunately, Berube was denied the
staff authority and even access to information necessary for his
mission. Later, he was fired for his failure.
-- Display chutzpa in selecting charges
One principle is that it is important to go well beyond merely
defeating a whistleblower. In order to prove to others that no one is
safe, the goal is to make the most outrageous charges possible. For
example, a whistleblower who is renowned for being a gentleman may
face sexual harassment charges. A soft-spoken, self-effacing
individual will be branded a loud-mouth egomaniac.
-- Prosecute them
The longstanding threat to attack whistleblowers for "stealing"
the evidence used to expose corruption is getting more serious,
particularly for federal employees or government- contract workers.
The foundation is similar to the premise of the British Official
Secrets Act: the government owns all the information it generates or
possesses. Employees with security clearances have to sign a
nondisclosure form accepting the government's property right as a
condition of keeping their clearances. (See BLOWING THE WHISTLE WHEN
YOU HAVE A SECURITY CLEARANCE.) In August 1989 the Justice Department
announced abandonment of a decade long policy not to prosecute
whistleblowers for unauthorized disclosures. Now the Attorney General
will try to send whistleblowers to jail for leaking information about
criminal investigations, or even for running afoul of civil statutes,
such as by allegedly violating the Privacy Act rights of culprits who
may be identified in the unauthorized whistleblowing disclosure.
-- Eliminate the job
A common tactic is to lay off whistleblowers even as the company
or agency is hiring new staff. Again for purposes of teaching others
a lesson, the more obvious the inconsistency the better. A closely
allied tactic is to reorganize away the structural independence of
particular responsibilities, such as when a nuclear engineering firm
deemphasizes the quality control department by making it a component
of the production staff.
-- Destabilize whistleblower's support base
Destabilizing a whistleblower's support base refers to withdrawal
of research privileges, data access, or most often subordinate staff.
When Anthony Morris challenged the swine flu vaccine and other
dangerous drugs, his Federal Drug Administration superiors transferred
his animal handler, a person whom Mr. Morris had relied on for many
years as a functional partner in the laboratory. The most advanced
form of this tactic then calls for overwhelming the whistleblower with
new work during the disruption, to be followed by dismissal for
incompetence when he or she fails to keep up.
Neutralizing Dissent
The point of the preceding tactics is to overwhelm the whistleblower
in a struggle for self-preservation -- of career, family, bank
account, even sanity -- until the point of dissent is forgotten or put
behind weightier survival priorities. There are specialty methods for
neutralizing dissent, some which are listed below.
-- Separate expertise from authority
The goal here is to have organization men make even technical
decisions, with limited advisory input for the experts. As a result,
all of Morton Thiokol's practicing engineers could argue against the
Challenger launch and be overruled by those with management functions.
-- Keep them ignorant
This is an extreme use of the national security "need to know"
rule that is legitimate far less often than it is employed. For
example, after whistleblower Charles Stokes and other dissenting
engineers who challenged manipulation of results in the seismic design
review of the Diablo Canyon nuclear power plant were transferred away,
the company brought in replacements who were unfamiliar with the job
history and who knew better than to ask questions about unrealistic
assumptions for calculations.
-- Substitute democracy for the scientific method
When convenient, normally undemocratic organizations will
substitute the bureaucratic equivalent of mob rule, where a group of
engineers who will not challenge the status quo out vote the
whistleblower without applying the objective tests of the scientific
methods. A more subtle variation of this tactic is to misuse peer
review as a discrediting tactic by packing the panel with a particular
bias, or as a stalling tactic by instituting duplicative or
unnecessary reviews.
An example that combined both tactics involved the dissent of NRC
engineer Isa Yin, who had investigated and confirmed whistleblower
Stoke's charges at Diablo Canyon. When Yin's investigation threatened
to block approval of the plant's license, the NRC appointed a team of
fifty engineers to take over completion of the work and to engage in
peer review of his findings. At the ultimate licensing vote they all
disagreed with Yin, who was reduced to arguing the facts in isolation
and protesting that he had been prevented from access to the necessary
data. The U.S. Court of Appeals for the District of Columbia Circuit
stayed the license for five months during 1984, in part due to doubts
on the handling of Yin's dissent.
-- Prevent a written record
When a policy is indefensible, the goal is to restrict debate to
an oral dialogue. This can be enforced through peer pressure,
overscheduling so there is not time for a record, or even a gag order
if necessary. The point is that it is difficult to accuse someone of
revising an oral history, and accountability will be diffused in case
of a catastrophe.
For example, in 1985 the NRC's internal affairs unit, the Office
of Inspector and Auditor (OIA), reexamined the peer review process
that had overruled engineer Isa Yin and Diablo Canyon whistleblowers
about design issues on which the plant's license was legally
conditioned. In its report OIA concluded that due to a lack of
available supporting information, it was "unable to assess the
validity of [peer review] conclusions" on key issues. More generally,
OIA reported that it "did not find sufficient documentation to
demonstrate that [the NRC staff] had verified the quality of the
design control program, either in a direct inspection or in licensing
review."
None of these techniques are new. Defensiveness and the instinct
to strike back when criticized are as old as the history of organized
society. But in 1973 President Nixon raised, or lowered, reprisal
techniques to a new level of sophistication. Fred Malek, his Director
of the White House Personnel Office (and, coincidentally, Chairman of
the 1988 Republican National Convention) issued the Malek Manual, a
secret report on how to purge the career civil service system of
"unresponsive" employees -- whistleblowers or Democrats -- without
running afoul of the law. The reprisal tactics above are largely
drawn from the Malek Manual and illustrated with more recent examples.
Ironically, whistleblowers exposed the Malek Manual and it was
published in the Watergate Committee's report.
Now that you have some idea of what can happen to you, a decision
has to be made on whether you still want to blow the whistle. The
following checklist can help you see if you are ready to blow the
whistle either anonymously or publicly:
WHISTLEBLOWER CHECKLIST
Things to consider if you plan to remain anonymous when you blow the
whistle:
1. Am I in the position to know that what I see as fraud really is
improper in the bigger picture?
2. Can I prove my allegations with self-explanatory documents that
don't need my public explanation?
3. Can these documents be traced to me because a small group of
people received them or my copies are uniquely marked?
4. Can I act nonchalant when these documents are disclosed so as not
to attract suspicion?
5. If discovered, do I or my spouse have the ability to support my
family outside my current profession?
6. Is my family prepared for the possibility of a negative high
public profile?
Things to consider when you are going to be a public whistleblower:
1. Are my family and I financially and mentally ready for a
protracted fight with my employers to prove the waste and/or fraud and
to try to retain my job?
2. Am I mentally ready to have my fellow workers and perhaps my
friends turn against me because of my disclosures?
3. Am I ready for personal attacks against my character and to have
my past indiscretions made public?
4. Do I have adequate documentation to prove my charges without
having to go back to my workplace?
5. Am I sure that my motivations are to expose the fraud for the sake
of the country and not just sour grapes, revenge, or public attention?
6. Am I financially and mentally ready to change my career to work
outside my current field?
WHISTLEBLOWING OUTLETS
Not all whistleblowing outlets are equal. Some provide greater
confidentiality than others, some are genuinely concerned about
exposing waste and fraud, some want to discourage dissent. However,
there are alternatives to the company or agency hotlines and you
should be aware of the advantages and disadvantages of each route
before you choose. We will explain how each is supposed to work and
then tell you, by past examples what really does happen.
We believe from our experience of working with whistleblowers that
non-profit groups, the press and false claims suits are the most
effective outlets under the current circumstances and climate. Your
whistleblowing situation is unique, so it is important to study each
option to find the best one for your circumstances.
We will start with Executive Branch outlets that have not had a
good track record and end with the outlets that we believe have proven
to be the most successful. Study each section carefully.
Federal Hotlines
In 1979, the Secretary of Defense established the Department of
Defense hotline as an avenue for the now Inspector General's office to
learn of potential wrongdoing or mismanagement. Today there are 17
other departments and agencies that have hotlines, and the Army, Navy
and Air Force each sponsor one. In an effort to institutionalize the
process of reporting misconduct, the President's Council on Integrity
and Efficiency (PCIE) recommended standards for receiving, controlling
and screening allegations. They direct that:
-- a simple, well-publicized way be developed for agency employees and
other interested persons to submit allegations of fraud, waste, abuse
and mismanagement while preserving anonymity when possible and if
desired;
-- a retrievable record be maintained of each allegation received;
-- each allegation be screened as soon as possible after receipt based
upon the nature, content, and credibility of the complaint, and in
light of priorities and resources, an appropriate decision on whether
or not to refer the complaint for further inquiry be made for each
allegation;
--the rationale for the decision on each allegation be documented in
the record.
With these standards as guidelines, hotlines are supposed to
operate similarly: You call the toll-free hotline and report an
allegation of fraud, waste, or mismanagement. That allegation is
reviewed to determine if followup is necessary. If the allegation
merits further review, it is sent to an investigator who goes into the
field to research the report. If the investigation verifies the
allegation, corrective action is taken and the case is closed. In
theory it sounds very straightforward and simple. In practice, it is
anything but clear-cut. There are far too many gray areas in federal
hotline investigations largely because the government agency is
investigating itself.
Problems with Hotlines
Standardization of hotline procedures has not been achieved. In a
report by the PCIE (September 1987) the DOD hotline received top
billing as the best run hotline but the PCIE admitted many of the
other hotlines do not meet operational standards. In an effort to
improve the uniform handling of hotline calls, the PCIE has set up
training courses available to federal, military and private industry
hotline operators.
Two areas of concern addressed in the PCIE training courses are
confidentiality of the source and case followup. Confidentiality is a
problem inherent in the hotline system. How does a whistleblower
provide sufficient information to support the allegation without
giving away details that identify himself? Because the balance is
hard to strike, much of the information received is either watered
down to the point that no investigation follows, or is traced back to
the only person who could have that knowledge.
At some hotlines, confidentiality is treated with outright
disdain. A spokesman for the DOD IG hotline (who asked not to be
identified) believes many military hotline operators are more
concerned about discovering who the caller is than whether the
allegation is true. In an atmosphere where discipline, conformity,
and unquestioning obedience to orders are prized above all else, it
should come as no surprise that a whistleblower could be regarded as a
traitor.
Take the case of John Kartak. After 19 years in the Army, he was
assigned to the recruiting station in Minneapolis. There he found
that unqualified applicants were recruited in order to meet quotas.
High school diplomas were forged and criminal records were concealed
so marginal recruits could be signed up. When Kartak refused to
endorse the misconduct, he called the Army hotline and blew the
whistle.
Kartak's "reward" for his integrity was repeated harassment
including two psychological evaluations ordered by his superiors and
involuntary commitment. One of his superiors told the VA hospital,
"He has lodged numerous complaints recently. . .I find his behavior
highly unstable. I am concerned that he may do something to harm
himself or others." Kartak was also ostracized, threatened, and
intimidated by his co-workers.
Kartak was vindicated when the Inspector General confirmed his
charges and found at least 58 people in the Minnesota recruiting
office guilty of engaging in illegal acts. In addition to forging
documents, one recruiter demanded sex from a female recruit, several
were dealing and using drugs and running a prostitution ring, and two
were charged with receiving stolen goods purchased from criminals they
recruited. But the price of Kartak's vindication was high and the
abuse of the hotline system's confidentiality was evident.
Case followup is another area the PCIE emphasizes in its training
courses. It would like all agencies to adopt the procedure used by
the DOD and General Accounting Office (GAO) hotlines. Those hotlines
assign each caller a case number so they can call back later to find
out what action was taken on their allegation. This system maintains
the anonymity of the whistleblower while permitting him to followup on
his case. The details of the case are not disclosed to the caller,
but he is told if the case was closed and whether it was
substantiated.
For a full report of a closed case the whistleblower must file a
request under the Freedom of Information Act (FOIA) which can
jeopardize his or her anonymity. The problem is, in order to file a
FOIA request, the whistleblower must identify himself. The request,
with his name on it, will be sent to the IG investigating the report
and can make its way back to the very persons committing the offense.
This kind of Catch-22 can lead to serious reprisal.
Nancy Kusen discovered how the FOIA Catch-22 works. Ms. Kusen is
a contract administrator for the Defense Contract Administration
Service (DCAS). In 1985 she began complaining about overcharging and
alleged shoddy work on Navy contracts by the Elliot Company. She
complained first to her superiors and when nothing seemed to happen,
she called the DOD hotline. The call led to an investigation by the
Defense Criminal Investigating Service which substantiated many of the
complaints but found no criminality. At the same time, Ms. Kusen
became the target of reprisals ranging from lowered performance
evaluations, denials of promotion, and repeated harassment.
In October 1986, Ms. Kusen filed a FOIA request to find out the
status of her case. Records show her request was referred to the
Defense Contract Audit Agency (DCAA) which, in turn, asked United
Technologies Corporation (Elliot's parent company) if it objected to
the release of the audits. The DCAA included a copy of Ms. Kusen's
FOIA request containing her name, address and home phone number.
According to the DCAA it is "routine practice" to include the FOIA
request.
The FOIA request that disclosed Ms. Kusen's name to Elliot's
parent company provided positive identification that she was the
whistleblower, enabling them to single her out for harassment. In Ms.
Kusen's case, however, the harassment already had started shortly
after her initial call to the DOD hotline, convincing her that the
hotline disclosed her identity to DCAS. But Ms. Kusen's experience
with the FOIA request serves as a warning to other whistleblowers who
may consider filing one to find out the status of their case. Ms.
Kusen's case also contributed to the caveat now offered by the
Inspector General's office to FOIA requestors: " Your confidential
status as a hotline caller does not apply to requests under the
Freedom of Information Act." Yet, if you don't file a FOIA, you can't
tell if the government investigated your charges in a thorough manner.
Other problems with hotlines were noted in a General Accounting
Office report on the DOD Hotline (March 1986). Although the DOD has
taken steps to correct the problems, it is likely that if they exist
at the best-run hotline, they exist within all hotlines. According to
the GAO, there are four recurring problems with the hotline system:
* investigator objectivity
* insufficient documentation on case files
* incomplete investigative reports that do not comply with DOD
reporting requirements
* limited action on planned remedial follow-up
Another problem that the GAO does not mention is DOD's current
policy is that companies should govern themselves, or
"self-governance" as urged by the Packard Commission and is
downplaying the role of government investigators. Therefore, the
hotline operators realize that challenges to the present system from
within do not receive a great deal of support by DOD policymakers.
In an effort to correct the 1986 GAO report problems at the DOD
hotline, the DOD has started a Quality Assurance Review. The review
checks the files of DOD field investigations to ensure that the
summary report matches the investigative report. DOD also claims that
it is more carefully reviewing cases it refers to the services. This
is important because whether it is done advertently or inadvertently,
the hotline can buck the information back to the services who then can
send it right back to the program manager who may be involved in the
fraudulent or wasteful activity.
The record of action taken on DOD hotline allegations indicates
the system is still not operating in the best interest of most
whistleblowers. In the 1987 calendar year, the DOD hotline received
9,425 total contacts. It opened 1,186 cases from those contacts,
substantiated 226 cases and partially substantiated another 329 cases.
Not all those cases were opened in 1987. Some had dragged on from the
previous years so it is impossible to know how many of the original
1,186 cases opened in 1987 were substantiated the same year. As any
good investigator knows, if the government does not move within a year
to substantiate charges, the bureaucracies often can cover up any
fraud or waste as time goes on.
A similar GAO Fraud Hotline Summary published in April 1988
reported that during its nine years of existence, the GAO hotline
received 94,000 calls, found only 13,992 cases worthy of
investigation, and closed 11,246 of those cases. Of the cases closed,
1,589 were substantiated. Another 580 cases were not substantiated
but action was taken to prevent improper activity from reoccurring.
This means of the 94,000 hotline calls and letters reported to the
GAO, 2.3 percent were substantiated or acted upon.
These figures are somewhat misleading when one considers that not
every call received at the hotline is a report of fraud, waste, or
mismanagement. Hotlines receive callers who have personnel problems
that should be handled in-house, crank calls, people with questions
and even the occasionally lonely person who just wants to talk. But
it is doubtful that a significant number of the 94,000 GAO calls fell
into these categories.
Whether blame for the dismal record of substantiated hotline calls
can be placed on investigator objectivity, incomplete investigations,
or watered down reports from the whistleblowers, the figures speak for
themselves. The odds of reporting fraud, waste, and mismanagement and
actually having it investigated and corrected are small. The figures
above do not instill confidence in a prospective whistleblower that
the hotline system will work for them.
Incentive Suggestion Programs
After several embarrassing disclosures of spare parts costs a few
years ago, the services and the DOD claimed to be serious about
establishing suggestion programs to save money. They began to reward
individuals for suggesting ways to reduce spare parts overpricing.
According to the Navy, calls to its pricing hotline during 1987
resulted in refunds from 21 defense contractors that totalled
$1,805,271. But to put that figure in perspective, one needs to
realize that the total dollars spent on Navy spare parts during 1987
was $2,093,000,000.
A general outline of the Service Suggestion Programs follows:
* Submit your suggestion in writing to the Price Monitor/Installation
Resource Management Office at your base.
* After preliminary review, the suggestion is sent out for
investigation.
* If the suggestion is adopted, you receive a percentage of the
savings ranging from $50-25,000. Any award of $25,000 must be
approved by the President.
The nature of the programs eliminates anonymity which means the
caller may be subjected to harassment from superiors who are
comfortable with the status quo. This is especially true because
often the official policy and the rules and regulations that are
guiding the procurement of these items are set up to maximize the
amount of money that is spent. This is done for political reasons to
make sure that the budget is spent every year and to justify more
money the following year for the bureaucracy.
Airman Thom Jonsson found out the Air Force preferred the status
quo to his suggestions for saving money. Jonsson was working for the
maintenance and supply section of the C-5A cargo planes at Travis Air
Force Base in California. In the course of his duties he discovered
that many spare parts were purchased for incredible prices, including
the now infamous $7622 coffee brewer. Another example was an armrest
pad which cost $670, but Jonnson determined that it could be made on
base for $25 with no rearrangement of machinery or personnel. The
Local Manufacture Supervisor at Travis Air Force Base concurred with
Jonsson's estimate.
In January 1984, Jonsson submitted his money-saving proposal to
his base's Zero Overpricing Program representative. In April, Jonsson
received notice that his proposal was "not in the best interest of the
Air Force." He resubmitted his suggestion and waited for a response.
By August 1985 he had heard nothing and decided to contact the Project
on Military Procurement, a non- profit watchdog agency. After the
Project evaluated his situation and discussed with him what he wanted,
his information was taken to Senator Charles Grassley (R-Iowa) who was
then the chair of the Senate Judiciary Subcommittee on Administrative
Practices and Procedures. The subcommittee asked Jonsson to come to
Washington and testify before the committee. Jonsson went to the
Capitol on his own time and testified in civilian clothes about the
excesses he had witnessed on the C-5A spare parts. The hearing
generated a lot of publicity which helped to keep the Air Force from
retaliating against him. He finally did get some money for his
suggestion.
A year later Senator Grassley asked Jonsson if the prices of the
spare parts, including the armrest, had gone down and Jonsson reported
that they had barely changed. When a press conference was scheduled
to expose the situation, the Air Force began to harass Jonsson. He
was denied routine leave, assigned a "babysitter" to make sure that he
"didn't get into trouble" and an attempt was made to arrest him on the
ironic charge of illegal destruction and disposal of spare parts.
Several members of Congress protested loudly, with Senator
Grassley, and Representatives John Dingell(D-MI) and Barbara Boxer
(D-CA) stepping in to protect Jonsson effectively from harassment.
Jonsson's case is an illustration of how a suggestion program can
go awry, and how sound suggestions are not always welcomed and can
lead to harassment.
IG, DOD Cash-Awards Programs
The IG, DOD Cash-Award program is different from the Service
incentive suggestion programs in several ways. It gives rewards
arbitrarily to those individuals whose disclosures save money rather
than systematically to anyone who suggests a viable way to reduce
spare parts costs. This means the program is not incentive motivated.
Calling the DOD hotline with a report of waste will not guarantee you
a cash reward.
One would like to think that after being publicly recognized and
honored for saving the government money, your superiors would not have
the motivation or nerve to harass you. But after your moment of glory
has faded and you revert back to your regular employee status, you
will be left facing perhaps the very management you accused of
wrongdoing. They may not forgive and forget.
Since the inception of the program in May 1984, 38 people have
been recognized for cash awards totalling $46,000. Their disclosures
have led to claimed cash savings of over $36 million. To put that in
perspective, the DOD will have spent $1,975,449,000,000 from FY 1984
to FY 1990. (DOD IG Semi-Annual Report to Congress, 10/1/87 to
3/31/88)
Office of Special Counsel
The Civil Service Reform Act of 1978 created a formal
whistleblowing disclosure channel through the Office of the Special
Counsel, which has a parallel duty separate from defending employees
against repressive personnel practices. The Special Counsel screens
whistleblowing disclosures and orders agency chiefs to investigate the
challenges that have merit. When the OSC determines that there is a
"substantial likelihood" the whistleblower's charges are accurate, a
more intensive reform process is triggered. The agency head must
investigate and reply within sixty days in a report whose contents are
specified by statute, including the issues and evidence that were
investigated, the methodology for the probe, a summary of the evidence
obtained, findings of fact and law, and a summary of corrective action
to solve any verified problems. After receiving the whistleblower's
comments, the Special Counsel evaluates the report for completeness
and reasonableness. Then the report is sent to the President and
Congress. The Special Counsel must maintain a copy of each report in
a public file, along with the employee's comments.
The purpose of the OSC whistleblowing disclosure channel was "to
encourage employees to give the government the first crack at cleaning
its own house before igniting the glare of publicity to force
correction." Indeed, if administered in good faith, the Reform Act
mechanism offers strategic benefits for a whistleblower to be
effective in his or her dissent. It could offer an opportunity to
gain the legally-binding judgment of an objective third party that the
whistleblower's charges must be taken seriously. At a minimum, it
maximizes the public whistleblower's credibility and helps to reduce
isolation. The OSC evaluation that there is a "substantial
likelihood" the allegations are well-taken is the bureaucratic
equivalent of a "Good Housekeeping Seal of Approval" for that
particular dissent.
By comparison the OSC has handled its responsibilities to screen
whistleblowing disclosures more objectively than its duties to
investigate and act against job reprisals. On occasion, the
combination of OSC support for the dissent and the knowledge of
evaluations at the end of the process also have helped to improve the
quality of agency reports in response to whistleblowing disclosures.
In both the nuclear power and safe food areas, the Nuclear Regulatory
Commission, U.S. Department of Agriculture and the Department of
Health and Human Services have confirmed the validity of employees'
dissent and taken serious corrective action. A guideline for
preparing OSC whistleblowing disclosures is enclosed as an appendix.
Unfortunately, as a general rule, this option at best produces
only cosmetic reform. Structurally, even with OSC support the agency
targeted by the whistleblower's charges is investigating itself. Good
faith responses have been the exception rather than the rule.
Further, the OSC typically accepts as reasonable and complete
whatever report the agency sends back. As a result, more likely than
not an OSC whistleblowing disclosure is merely an opportunity for the
agency to cover up the evidence, perfect its defenses and then issue
an official self-exoneration that soon will be approved by the Special
Counsel -- all before serious investigations by Congress, the media or
other outside groups that would like to ferret out the truth. This
means an OSC whistleblowing disclosure usually will be
counterproductive unless it is part of a larger strategy involving
other institutions. That was the case with all of the examples listed
above.
In some instances the OSC channel has been treacherous. On
numerous occasions the Special Counsel has ruled that the dissent was
unreasonable but then sent it to the agency chief anyway without the
employee's consent. These "informal referrals" have been a double
whammy -- advance warning to the agency of serious dissent, and an
invitation to retaliate with impunity since the Special Counsel's
ruling meant the dissent was too unreasonable to qualify as legally
protected speech. New legislation should make the OSC a safer channel
for whistleblowing disclosures, by forbidding the Special Counsel from
forwarding the employee's charges or revealing his or her identity
without consent.
Inspectors General
Whistleblowing disclosures through the Special Counsel can enhance
the quality of another conventional channel for investigation of
employee concerns -- the Office of Inspector General. Each agency has
one, either by that name or another. These offices are responsible
for investigating and reporting on alleged misconduct by the agency or
its employees. The IG's at most major agencies are covered by the
Inspector General Act of 1978 or a similar, subsequent statute.
Employees who are considering disclosures to an IG should
ascertain if it is a statutory Office of Inspector General. The
distinction is quite significant. Statutory IG's can only be
nominated and dismissed by the President. Non- statutory IG's are
hired and fired by the agency chief whose programs they are
investigating. The agency head can comment on but not change the text
of reports by statutory IG's. By contrast, agency chiefs have
unlimited censorship rights for reports by non-statutory IG's.
Statutory IG's have the authority to investigate reprisals against
their witnesses. Non-statutory IG's can investigate only what the
agency chief permits. To illustrate what this means, each year up to
10% of referrals to the Department of Justice's IG equivalent, the
Office of Professional Responsibility, are to investigate and identify
for possible criminal prosecution the source of "leaks" -- usually
anonymous whistleblowing disclosures.
On balance, IG's have a mixed track record at best of responding
to whistleblowers. Even offices with statutory independence are
staffed predominantly by employees from the "old days," when the IG
was management's eyes and ears. That meant that if the agency chief
wanted to get the facts and act against wrongdoing, the IG performed
as a law enforcement agency. If the agency leader wanted to cover up
a problem, the IG report assembled the case for the defense and the IG
acted as a hatchetman to do the dirty work of discrediting the
whistleblower. Traditionally it has not been uncommon for an IG to
investigate the whistleblower rather than his or her charges.
To some extent these traditions are changing. But whistleblowers
are well-advised to seek expert advice or retain an attorney, even for
coaching purposes, before going to an Inspector General. You should
pin down how the IG will conduct the investigation before sharing your
concerns and evidence. You should insist that all agreements, plans,
and schedules be confirmed in writing, rather than handling matters
informally or leaving anything to trust. Under some circumstances, it
might be wise to approach the IG armed with the extra credibility of a
substantial likelihood finding and an order to investigate from the
Special Counsel.
Congress
It would be nice to think that our elected officials only
represent each one of us as individuals, but members of Congress are
pulled by all types of constituent groups, including major industries
in their state or district. For that reason, it is important to do
some research before blowing the whistle to your local member of
Congress. Some questions you might ask are: Are there any
contractors in your area of whistleblowing or large military bases in
his or her district or state? Find out how the member feels about
your particular agency or company before you discuss anything and ask
about their methodology in a case load. Also investigate their past
track record in battling the system with other whistleblowers and call
those people to see if they were satisfied with the member of
Congress's tenacity in fighting the system and protecting their right
to blow the whistle. If the office does not have a strong record of
supporting whistleblowers, you may think twice about trusting that
member.
Some members of Congress simply pass complaints about the
bureaucracy back to the agency to investigate itself. This action is
rarely successful -- the matter is often bucked down to the
perpetrators of the fraud. To make matters worse, members of Congress
may not be willing to protect your identity, even if you ask them to,
because of the inexperience of the congressional staff in dealing with
the bureaucracy or the individual member's courage to stand up to a
large bureaucracy or company.
Whistleblowers often make the mistake of thinking that their best
ally to expose the fraudulent activity is the authorizing committees
in the Congress that give the bureaucracy its money. Although some
congressional committees have a vigorous oversight staff, many of the
members of the committees are captured by the same influences that
pressure the individual member of Congress.
For example, the Pentagon procurement scandals in the 1980's have
shown that cozy relationships exist between some members of
congressional committees and contractors. The Armed Services
Committees in the House and the Senate often have members appointed to
them because of the large defense contractors or military
installations in their state or district. If a member of Congress
does not have much military activity in their state or district when
they are first appointed to the committee, Pentagon money gradually
gravitates to their area because of their own efforts or because the
Pentagon and the defense contractors are trying to win influence with
the committee. In addition, in 1987, the Chairman of the House Armed
Services Subcommittee on Procurement and Military Nuclear Systems
received 80 percent of his yearly honoraria from speeches from defense
contractors. His is not an isolated case: 6 of the other 18 members
of his committee also received more than 50 percent of their yearly
honoraria from defense contractors.
It also is important to remember that as an institution, Congress
can be as unwilling to hear bad news as the Executive Branch. It is
true that some of the major scandals of the 1980's have been exposed
with the help of certain congressional committees but once the
headlines fade, it is rare that the Congress as a whole really wants
to shake up the status quo and pass meaningful reform. It was
Congress which passed the 1978 Civil Service Reform Act that
ultimately stripped whistleblowers of their constitutional remedies.
Congress has been unwilling to challenge consistently the Executive
Branch's claim to exclusive power in the area of national security.
(see DEFENDING YOURSELF IN THE BUREAUCRACY OR COMPANY) So don't forget
that Congress as a whole may be as willing to cover up problems as the
Executive Branch.
There are some members of Congress who are interested in the
whistleblower's plight and can offer you some protection. When
properly motivated members of Congress have rallied to the
whistleblower's cause. In addition, certain members of Congress
provided the clout to protect individual whistleblowers from reprisal.
It is a crime to interfere or harass a congressional witness but the
Congress has made the mistake of rarely enforcing the law thus
emboldening the bureaucracies to strike back at the whistleblower for
their disclosures to Congress. As we have seen, congressional
intervention in the Thom Jonsson case prevented the Air Force from
further harassing Airman Jonsson (see Incentive Suggestion Programs).
But congressional protection of individuals is the exception and
should not be depended on. If you plan to go to a member of Congress,
you first need to check that individual's record very closely.
If you decide to contact a member of Congress, it is important to
know what to include in your correspondence and how to package it:
* Before you write to any member, make sure that you have thoroughly
checked their track record. You need to make sure that you do not
divulge any information to them before you take this important step.
Find out if they have helped any whistleblowers before and if they
followed up once the headlines faded. You can do this by following
their past cases in the papers. If you find that they are not still
working on the problem or trying to protect the whistleblower, you
need to be wary.
* Keep it short. Most staff members won't read more than a page. If
it is impossible to condense your letter to two pages or less, it is a
good idea to prepare a one page fact sheet as well. At the beginning
of your longer letter, flag the fact sheet for the staff member.
* Make it clear early in your letter whether you want your name or
documents to be shown to anyone in the bureaucracy. Otherwise, your
letter may be processed right back to the agency where you work or
that oversees your contractor. Also, make it clear to the reader that
if you need to remain anonymous, you request that they take caution
and talk to you before they take any steps on your letter.
* In a clear and concise way, state your factual case in the
beginning. Enclose the most important documents but don't send a huge
stack. Make a list of other documents that you have and don't send
originals. Keep your story clear of government jargon and don't
assume that the staff member who will be reading the letter will
understand how your bureaucracy or company works. If you need to send
a longer statement, separate it from your cover letter which should be
no more than a two page summary.
* It is alright to talk about any harassment or retaliation that you
have received, but put it at the end of the letter and don't dwell on
it. Also, at the end of the letter, make suggestions on where to go
to investigate and get more collaborating documentation. Let them
know if there are any investigative agencies that are working on your
case and whether or not you think they are successfully uncovering
anything of value.
* Make sure that the staff member has a way to reach you during
working hours. If you can't talk to them at the workplace, find a way
for someone to take a message for you and return their call during
your lunchtime.
* If you haven't received a reply within two weeks, call the office in
Washington and ask to speak to the Legislative Assistant (LA) who
covers your area. Congressional staff members are very busy and the
most successful whistleblowers know when to keep calling a staff
member and when to wait. Don't be a pest but make sure that you do
not fall through the cracks. Don't demand attention and be polite at
all times. The Congress is also a large bureaucracy and it can be as
frustrating as any other agency.
Watchdog groups have good working relationships with various
members of Congress and you may be more successful going through them.
These watchdog groups can play the role of advocate for you and
sometimes can keep you anonymous.
The Press
One of the most obvious whistleblower outlets is the press (which
includes television news). On the surface it seems to be the easiest
and quickest way to let American taxpayers know that their dollars are
being wasted. Indeed, it can be very effective when handled properly
through a responsible reporter. But not all reporters are willing to
take the time and effort necessary to publish your allegation and
maintain the anonymity of their source.
To protect yourself, you need to choose a reporter carefully.
That involves doing some research. Find out who covers your area of
expertise for each of the major newspapers and networks and look at
their work. That means either asking reporters to send you copies of
stories they have done on your general area or going to the library
and reading back copies or the newspapers or magazines. It is
important to have an idea of how a reporter will handle your story
before you give it to him or her, so make sure you like the reporter's
approach to whistleblowing, waste and fraud, and how they cover the
agency to which they are assigned. If you find that the reporter's
stories just seem to echo what is handed out of the public relations
office of the agency or company, it is not likely that they will do
the type of questioning or investigating that you need. Keep looking
until you find a reporter whose approach closely reflects what you
hope to achieve by blowing the whistle.
You also have to decide whether to contact a local reporter or the
national press. There are advantages and disadvantages to each one.
The local reporter will be more interested in your story because of
its local implications but he or she also will have more pressure not
to print the story because the company or the bureaucracy has a
powerful economic base in the local area. Local reporters will be
able to follow up by speaking to local people who can anonymously back
up your claims and perhaps provide more documentation. You need to
read your local paper and judge whether you think they have shown any
tendencies to expose local entities. If you do have a good local
story, it gets the company's or bureaucracy's attention but the story
may then be ignored in Washington.
A national story can also be effective but it is often hard to get
the national press in Washington to pay attention to things that do
not have direct impact on the Washington political scene. Your story
needs to affect directly the agencies in Washington or involve a large
government program or corporation to be sure that a national outlet
will be interested. It is also harder for reporters in Washington to
verify your story from Washington and it is rare that they will have
the time or the money to come out to your area.
A good compromise is if your local paper is part of a national
newspaper chain that has a Washington office or on a national news
wire that gives the story outlets other than your local area.
Newspapers in a chain are less likely to be intimidated by local
economic pressure and your story will appear nationwide. Several
well-known chains include Knight-Ridder newspapers and Gannett
newspapers. Call your local papers and find out if any of them belong
to a chain that has a Washington office or are on a major newswire
such as the New York Times newswire.
Once you have chosen a reporter, it is important for you to know
how to approach the them and what the reporter can and cannot do for
you. First you should agree to the terms of working with them before
any information is given. Also, whistleblowers often have unrealistic
expectations from reporters and this can damage your working
relationship. Here is a list of what reporters can and cannot do for
you:
* Reporters can give you anonymity. A good reporter will not reveal
his sources even to a court of law. However, before you tell your
story to a reporter, you must set the rules of how you want to be
identified.
-- If you agree to speak to a reporter "on the record", he can
identify you by name and your position in the government or industry.
-- You can agree to speak "off the record" where the reporter
cannot use your name but can characterize your position (for example,
a quality engineer in the MX program). Unless you are careful, that
characterization could be very revealing to the people who are trying
to identify the source of the leak. You can agree to talk to a
reporter off the record but with the provision that you agree how you
will be characterized to protect your identity.
-- Another way to speak to a reporter is "on background", which
means that the reporter cannot characterize you in any way but must
write about the information in a generic sort of way. This way of
speaking to a reporter is the safest way but it makes it more
difficult for the reporter to write a story that will get published.
Reporters, of course, will try to get you on the record and will
assume you are on the record unless you designate differently.
WARNING: Many reporters have different definitions for the above
terms so it is important to define your terms before you tell them
your information. Make sure that the terms that you agree on apply to
your entire conversation and perhaps followup conversations. Don't
expect a reporter to honor rules after a conversation. Most will but
you should not take the risk. You must weigh your need for protection
against the need to tell the reporter enough for him or her to write
the story. This is a judgment call that you will have to make.
* It will be in the reporter's best interest for you to commit to
giving him or her the story exclusively. This means that you will not
talk to another reporter until your reporter prints the story. This
can be useful for you because the reporter will have a motivation to
work harder on it. But it can also backfire on you because the
reporter may think that by "owning" the story, he or she has all the
time in the world to work on it and your issue can wither on the vine.
When you meet with a reporter, they often will assume that you are
working with them exclusively. Ask at the beginning of your meeting
whether or not the reporter expects an exclusive arrangement. Most
reporters will say yes. To protect yourself, you should work with the
reporter to set a reasonable time period for your exclusive
relationship. The amount of time will depend on the nature of the
story, but the reporter and you should agree to a time length that
gives the reporter enough time to do the story but does not allow the
process to be stretched out until the issue becomes stale. If
something else comes up, you always can agree to extend the deadline.
Setting a time period may irritate the reporter, but you should try to
protect yourself by suggesting it in a nice and reasonable way.
* Even if the reporter is interested in writing the story and spends a
great deal of time on it, don't assume that it will automatically get
printed. Reporters have to sell their stories to their editors and
publishers and the more controversial the story, the more the
management people of the newspaper or television station
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always have control over his or her stories and there is an element of
politics in journalism as everywhere else. The owners and the
managers of newspapers and television stations feel political and
monetary pressures as in any business. However, don't give up on a
story because as long as the reporter wants to have it published there
is still a chance.
* Don't expect reporters to be crusaders for your cause. Their job is
to examine the facts, talk to people from both sides, and report the
story fairly. The majority of reporters will resent it or shy away
from you if you try to pressure them to take up your cause.
* Don't expect reporters to find a lawyer, or contact the government
for you -- although some will offer to help maintain your loyalty.
Most want to remain separate from your whistleblower activity and
report on the factual parts of your case.
* Don't assume that since you are working closely with a reporter that
he or she is your friend. Part of their job is to be very friendly
and put you at ease so that you are willing to tell them everything
you know, and preferably on the record. Many whistleblowers, who
already feel lonely and isolated, mistake this as friendship and
expose themselves by saying too much. Working with a reporter is a
business relationship and you should remember that at all times when
you are with a reporter. Also, if you meet with a reporter at a bar
or a restaurant, make sure that you don't drink too much and lose good
judgment. Negotiating your terms with a reporter should be done with
a clear head.
When you meet with a reporter, it is important to come well
prepared. That means organizing your documents in an understandable
order and making notes for you to follow so that you do not ramble or
take too long to get at the meat of your information. Try to avoid
starting at the very beginning and telling the story in excruciating
detail. Start with a basic outline of your story, showing the
documents as you go, and then go into detail in areas in which the
reporter is interested.
Don't start your conversation by reciting all the injustices that
you have had to endure. The best way to impress a reporter with your
story (and your motivations) is to give the factual information on the
misconduct you have seen and let them ask about your personal
hardships. Only volunteer the personal problems that you have had at
the end of the meeting, if the reporter has not asked, and keep your
statements brief.
Make sure that you never embellish your information to a reporter.
A common fault of whistleblowers, once they have finally convinced
someone to listen to them, is to tell the reporter 110 percent of the
story to make their point. The problem with that is the reporter or
the bureaucracy can realize that the last 10 percent that is
embellished and the rest of your story will appear to be discredited.
It is best to tell reporters 80 percent of your solid information and
give them leads to discover on their own the last 20 percent. That
way people will be impressed that the situation is really worse than
you said.
After reporters write and publish a story, you should keep them
informed about how the scandal is progressing but you should make sure
that you don't become a pest in the reporter's eyes. After they write
a story, reporters are pressured by their editors to move on to the
next story. Reporters often have to fight for the time and newspaper
space followup stories on their exposes.
If you have been anonymous in your whistleblowing, it is important
to remain calm and do not do anything that casts suspicion on
yourself. Once a story hits the media, your bureaucracy will begin
"damage control," and if you are directly involved in the problem, you
may be asked to sit in on the meetings and help plan a coverup. This
puts you in a very good position to continue to tell the reporter
about a planned coverup of the wrongdoing or if the company or the
bureaucracy are legitimately trying to solve the problem.
If you are going public with your whistleblowing, you may get more
publicity and requests for interviews after the story appears. It is
good to take advantage of the extra publicity to shed more light on
the subject of your whistleblowing, but you must approach your new
found status with caution. The bureaucracy or the company may try to
take the focus off of the scandal and make you the issue by trying to
discredit you. It is important not to take it personally and become
openly defensive. In this situation, the best defense is a good
offense. When reporters ask you about your personal fight with the
organization, turn the question around and spend time emphasizing the
subject of your whistleblowing -- the fraud and waste. When you do
talk about the retaliation against you, don't come across as bitter,
defensive, or paranoid and don't dwell on the subject. Additionally,
strive to stay unruffled and unflappable. Remember, the calmest
person in the room is usually seen as the most credible.
It becomes quite flattering suddenly to receive all this
attention, but remember: one of the ways that a bureaucracy or a
company can discredit you to others is by portraying you as a
self-glorified publicity hound. Don't give them any ammunition by
letting the publicity go to your head. A little humbleness can go a
long way in making your case.
If you cannot make up your mind about what approach you may want
to take, you can contact the Project on Military Procurement and the
Government Accountability Project for advice.
Non-Profit Watch-Dog Organizations
If blowing the whistle to a member of Congress, the press or a
hotline seem too risky or unfruitful or you aren't quite sure that
this handbook has given you enough details to make a decision, you can
call upon non-profit watch-dog organizations either for advice or to
use as your main avenue in blowing the whistle. There isn't an
abundance of these types of organizations. The Project on Military
Procurement (PMP) and the Government Accountability Project (GAP), who
produced this handbook are dedicated to trying to help whistleblowers
with their problems. PMP and GAP can help you build a coalition of
groups to help you because of their unique interest in the subject
matter. It often takes a coalition effort to overcome the political
clout of large government bureaucracies and corporations. PMP and GAP
have different goals and areas of expertise. A description of each
follows:
The Project on Military Procurement
PMP's goals are to reform the Pentagon procurement system by
exposing on-going waste, fraud and abuse to the press, Congress and
the public; to provide an effective and reliable national defense
while saving the taxpayer as much money as possible; and to assist
whistleblowers in the military establishment during their struggles to
expose abuses.
PMP has been investigating whistleblower claims for eight years.
The whistleblowers come from all areas of defense, the DOD, the
defense industry and military personnel. PMP has been instrumental in
exposing spare parts overpricing, falsification of the weapon testing
process, cost overruns in weapon systems, fraudulent procurement
processes and faulty weaponry. PMP sources choose whether to be a
public or anonymous whistleblower. No whistleblower has ever lost his
job as a result of blowing the whistle through PMP.
PMP takes the burden of ensuring the individual of confidentiality
and arranges, on receipt of documentation of his or her allegations,
for the whistleblower to meet with or talk with a researcher at PMP.
We also have a group of military sources that advise us on an
anonymous basis. We turn down some individuals because they lack
documentation or when the whistleblower decides that the risk is too
great.
Once a decision has been made by the whistleblower and PMP to move
forward, PMP helps the whistleblower decide whether to go to the
press, the Congress, the DOD, or to file a false claims suit. PMP
works with several lawyers who are looking for clients to file false
claims suits and acts as unpaid advisors to the whistleblowers and
lawyers in the investigation process of a law suit. We want to expose
and help initiate reform while providing the maximum protection
possible for our whistleblowers. PMP's policy is that no expose' is
worth a whistleblower's career and peace of mind.
PMP has been instrumental in exposing spare parts horror stories
such as the $7400 coffee brewer and the $455 arm rest. We have also
revealed, for example, an illegal lobbying plan for the C5B cargo
plane, an internal investigation report showing defects in the Phoenix
Missile, and a draft Inspector General report that found "work
measurement" an effective way of saving defense dollars. PMP is
interested in investigating and revealing all aspects of getting "more
bang for the buck."
To contact the Project on Military Procurement call or write:
Dina Rasor, Director
Project on Military Procurement
613 Pennsylvania Avenue SE
Washington, DC 20003
202-543-0883
or contact our computer bulletin board SNAFU with your personal
computer. The number for SNAFU is 202-547-6238
The Government Accountability Project
GAP has been providing legal support for whistleblowers since
1976. GAP helps defend whistleblowers against reprisal, assists them
in pursuing their dissent more effectively, offers informal assistance
and referral services when formal representation is not possible,
advocates stronger free speech laws and teaches the law of dissent
through scholarly works and law school clinical programs. Unlike the
Project on Military Procurement, GAP does not formally specialize in
any particular issue area. Due to the quantity of requests, however,
GAP has concentrated on certain issues such as safety hazards from
commercial and military nuclear facilities, and meat and poultry
inspection and increasingly, the false conflict between national
security and freedom of speech.
Whistleblowers who call GAP for help first consult with the Intake
Director, who prepares a short summary of the individual's objectives
and relevant facts. GAP receives from 200-500 fresh requests for help
per year and can only take around 5 new cases annually, since it often
takes years to complete service to existing clients. Additionally,
whistleblowers connected with ongoing issue campaigns receive priority
for representation, since work on those cases complements assistance
to other clients whose cases are pending. As a result, most
frequently GAP offers informal assistance such as coaching, describing
the range of options and relevant laws, finding an attorney, or
referrals to responsible congressional oversight committees, media or
constituent groups who should be aware of the whistleblower's concerns
and fate. GAP's basic strategy is to unite isolated whistleblowers
with the majority of citizens who should be benefiting from their
dissent.
If there is space in GAP's docket potentially to help an intake,
an attorney will conduct a verification study to determine whether --
1) the whistleblower's dissent is reasonable; 2) the issues are
significant enough to be worth the harassment the employee faces by
pursuing them; and 3) the whistleblower and GAP have a fighting chance
to make a difference. If the case survives the verification study,
the organization considers formal representation based on additional
factors such as whether GAP has a unique contribution to make and
whether it can be funded. GAP traditionally has not charged for
attorney time and evaluates whether representation would be covered by
an existing or potential foundation grant. But clients are expected
to cover expenses, such as telephone and travel costs. Financial
pressures are forcing a reconsideration of this policy, however,
particularly if the representation is not part of an issue campaign
that is already funded.
Successful issue advocacy campaigns have included challenges to
the Zimmer and Midland nuclear power plants, which had to be converted
to coal facilities after whistleblowers exposed systematic quality
assurance breakdowns. GAP investigations also caused extensive
re-inspections and repairs of suspect components at the Comanche Peak,
Diablo Canyon and Lasalle nuclear facilities. Whistleblowers
represented by GAP have exposed massive radiation leaks at the
Fernald, Hanford and Knolls military nuclear facilities. Dissent by
over 100 GAP clients who are federal meat and poultry inspectors
stopped various USDA plans to gut or eliminate current food inspection
programs.
GAP defends individual whistleblowers against reprisal through
serving as co-counsel for that aspect of a larger employment dispute,
authoring friend of the court briefs, and direct representation where
a case is particularly significant in terms of its chilling effect
during an issue campaign or as a civil liberties precedent. Among
GAP's more well-known, successful clients are Pentagon cost control
expert Ernest Fitzgerald and GSA National Capitol Regional Director
Bertrand Berube, the highest ranking whistleblower in the civil
service to challenge a firing successfully.
To contact the Government Accountability Project call or write:
Tom Devine, Legal Director
GAP
25 E St. NW
Suite 700
Washington, DC 20001
(202) 347-0460
To seek legal assistance, address correspondence to the Intake
Director at GAP.
DEFENDING YOURSELF IN THE BUREAUCRACY OR COMPANY
Despite admonitions, warnings and threats you might receive, it is
your constitutional right to blow the whistle and be protected after
doing so. Government employees are protected under the first and
fourteenth amendments of the Constitution, which prohibits federal,
state and local governments from retaliating against workers who
express dissent publicly or privately to their supervisors.
Protection for the private sector employees has developed over the
past 25 years under individual state laws.
However, neither protection is comprehensive or enforced by the
government agencies and the courts. There exists a patchwork of
specific employee protection laws that cover environmental issues,
health and safety, labor relations, and civil service. Legislation
pertinent to whistleblowers is explained below.
Whistleblower Legislation
Civil Service Reform Act of 1978
The 1978 statute gave the OSC a broad mandate and almost total
discretion, in large part, to protect freedom of speech.
Unfortunately, it degenerated into what one Senate staff member calls
a "legalized plumber's unit" -- the administration's most effective
weapon to identify wounded dissenters who come in for help, and then
finish them off.
Since its creation, the OSC has turned down 99 percent of
whistleblower cases without attempting disciplinary or corrective
action. Since 1979, the Special Counsel has not pursued litigation
through a corrective action hearing to restore a whistleblower's job.
From 1981 to 1986, the total number of requests for stays, or
injunctive relief, was approximately the same as in one previous year,
1980.
This is no surprise after considering recent Special Counsels'
attitudes toward dissent. The office was created to guard against
Watergate-era techniques taught in the Malek-May Manual to harass
unresponsive employees out of their jobs. However, former Special
Counsel Alex Kozinski used the Malek-May techniques in a successful
purge that convinced nearly half his staff to resign, including
approximately seventy percent of headquarters attorneys and
investigators. Kozinski was so intolerant of criticism that he issued
a gag order to his public relations officer and ordered employees not
to speak with his predecessor, Mary Eastwood, before he attempted to
fire her.
Kozinski also shared his techniques with others. Using the OSC's
own investigative manual as a guide, he taught a course for federal
managers on how to fire employees without OSC interference. He
tutored then-Secretary of the Interior James Watt's assistants on how
to avoid conceding first amendment violations and still fire
whistleblower Jack Spadaro for exposing mine safety violations.
Kozinski is now a judge in the Ninth Circuit Court of Appeals.
Initially, as a protege of former Attorney General Ed Meese, he was
being groomed for the Supreme Court. After his record was exposed as
a hatchet man against whistleblowers, he was barely confirmed for the
court of appeals -- squeaking through 54-43.
Publicly, former Special Counsel William O'Connor was less subtle,
branding whistleblowers as malcontents and comparing them to bag
ladies and mental health patients. O'Connor aggressively disclaimed
any responsibility for reprisal victims, characterizing them as
"by-standers" and "witnesses." Mr. O'Connor explained that his job
was to serve the system, not individuals. But the merit system is an
empty phrase without human beings.
Both Special Counsels defended their track records with the same
excuse -- neither met a whistleblower who deserved or needed the
CSRA's remedial litigation. They claimed vindication from the
results, asserting that whistleblowers turned away by the OSC also
lost everywhere else. However, that is false. For example, two
successful MSPB whistleblower appeals (out of four in ten years)
vindicated employees whom the Special Counsel had turned away,
including the Spadaro case. The case of another OSC reject, Vince
Laubach, was so strong that Interior settled his grievance with
reinstatement, back pay and damages. On balance, through 1988,
whistleblowers prevailed in seventeen successful cases of
whistleblower litigation, in many instances through labor-management
arbitration, while the OSC had been dormant.
Messrs. Kozinski and O'Connor abused their discretion by
substituting new agendas for explicit statutory language and
congressional intent. For example, in 1984, the Special Counsel
honored the law's mandate to investigate reprisal allegations only
eight percent of the time.
Ernest Fitzgerald, who initially became known for blowing the
whistle on cost overruns in the Air Force's C-5A aircraft, recounts in
connection with a more recent case involving alleged defense
procurement fraud, "I kept trying to give the investigators
documentary evidence and they kept giving it back to me." Another
whistleblower reported calling the office eighty-nine times before
anyone would speak with him to tell him his case had been closed.
Fitzgerald's frustration involved the case of George Spanton, a
Pentagon auditor whom the agency tried to force into retirement
through a retaliatory transfer after he revealed systematic violations
of law at a major defense contractor, Pratt Whitney. Ironically, the
Spanton case is credited, or blamed, with preventing the OSC's
dismantling. The Special Counsel boasted that the Spanton case was a
major success, because it obtained an administrative order to fire top
Defense Contract Audit Agency officials for the retaliation.
The question is whether it was a successful prosecution or an
effective coverup. Special Counsel William O'Connor refused to pursue
evidence indicating that Pratt and Whitney was just an anecdotal
illustration of systematic corruption throughout the defense industry.
Similarly, he stopped his investigators from following up on strong
evidence that Defense Secretary Weinberger was personally responsible
for silencing Spanton, indicating a Cabinet level coverup. As
Fitzgerald later testified, the Special Counsel curtailed the Spanton
case at a point analogous to where Earl Silbert had tried to stop the
Watergate investigation -- declaring victory by scapegoating minor
league figures like Gordon Liddy and James McCord.
If the OSC hadn't stopped short, the 1988 Pentagon corruption
scandals might have emerged two years, and tens of billions of
taxpayer dollars, sooner. The Special Counsel also might have won the
case. By pulling its punches the OSC avoided the best evidence of
reprisal, and eventually the case was overturned in court. In the
end, the Special Counsel accomplished nothing in the Spanton case
except to save itself.
Perhaps those who were ignored were lucky: the OSC did not turn
on them. As Sen. Carl Levin, D-Mich. commented about the case of
Bert Berube at the General Services Administration, the Office spent
more than five times as much time investigating the complainant as
investigating the complaint.
Although the OSC routinely refuses to share its closed case files
with complainants who try to continue fighting in another forum, the
office has used the files as dossiers to help blacklist whistleblowing
employees who give up on their original jobs and seek renewed
employment. For example, the OSC recommended during an Office of
Personnel Management background security check that former Treasury
Department attorney Elaine Mittleman not be hired for a new government
job, in part because her superiors suspected she had leaked documents
to Congress and the press, which in theory is protected speech.
Ms. Mittleman first lost her job after dissenting against
Treasury's failure to enforce the law requiring the Chrysler
Corporation to file reports on how it spent its guaranteed loans from
the federal bailout, charges later confirmed by the Inspector General.
The Office of the Special Counsel refused to interview her personally.
O'Connor exercised legal double-speak to transform protected
activity into offenses justifying dismissal, such as explaining that
dissent against agency policy is insubordination. This announcement
legally eliminated significant dissent. He sternly warned that his
agency would not be a haven for blackmailers, his term for those who
engage in what he labeled as "shake-downs" by threatening to exercise
appeal rights. This policy frowned on the due process clause.
The new Special Counsel, Mary Wieseman, has introduced personal
courtesy as a leadership style. In terms of track records and
techniques, however, at least prior to passage of a new Whistleblower
Protection Act of 1989, the current OSC was barely distinguishable
from the tenure of the previous two Special Counsels. After
approximately a year into Ms. Wieseman's terms, she testified that
the OSC had formally or informally obtained help for 6 out of 176
government employees, meaning that until that time over ninety-six
percent had not been assisted.
Further, frustrated complainants continued to report that the OSC
channeled evidence to the agencies that were the targets of reprisal
charges; delegated the investigatory authority for key witnesses to
the office in the target agency that was responsible for defending
against the reprisal charges; failed to create a verifiable record and
then misrepresented the position of supporting witnesses; refused to
inform the complainant of the evidence which had to be rebutted, a
charge confirmed by at least one witness as well; and generally
appeared to invest more resources investigating the whistleblower and
his or her supporters, instead of the alleged retaliation. The OSC
remains a leading agency in practicing secret law. Ironically, it
employs this approach in determining whether to defend those who
allege reprisal for exposing coverups of misconduct.
The OSC has boasted that one of "the most extended and intensive
investigations we've ever done" involved Veterans Administration
police officer John Berter, who was fired after challenging nauseating
police brutality of minorities and veterans. The question is -- who
was the OSC investigating? The OSC stood by passively until Berter
complained in Rep. Schroeder's hearings on proposed whistleblower
legislation. At that point, the OSC went to work. But according to a
House civil service subcommittee staff investigation, the OSC
proceeded to attack Berter's "motives, his allegations, his doctors,
his supporters, his witnesses, the victims, his skills and a prior FBI
report that found substance to his charges." After six witnesses
submitted affidavits repudiating the OCS's characterization of their
testimony, the office refused to tell Berter the evidence he needed to
rebut the charges.
In a closeout letter that failed to discuss any of the 27
affidavits submitted by Berter from victims or witnesses, the OSC
dismissed all of his charges, at most conceding some "peripheral"
validity. Although the OSC approved Berter's firing, two national
good government organizations -- the Cavallo Foundation and the
Giraffe Society -- honored him with awards for his courage in
exercising First Amendment rights.
Lack of enforcement, combined with the OSC's proclivity for biased
investigation, has led to an increase in fear of reprisal among
prospective whistleblowers. In 1980, 19 percent of federal employees
who witnessed but did not report fraud, waste and abuse, cited fear of
reprisal as the reason for remaining silent. By 1983, the figure had
jumped to 37 percent. In 1985, the MSPB admitted in a press release
that "[t]here has been a significant increase in the fear of
reprisals, the reason given for not having reported fraud, waste, and
abuse." Clearly, if the OSC was cracking down on offending agencies,
instead of reinforcing them, fear of reprisal would be on the decline,
rather than increasing.
The most fundamental problem with the Civil Service Reform Act of
1978 is that it took basic constitutional rights away from civil
servants and gave the job of protecting them to the Special Counsel.
By stripping whistleblowers of the right to defend themselves in most
cases, the new law left them at the mercy of a hostile bureaucratic
welfare agency for personnel disputes.
Even when they could control their cases, it was in the Merit
Systems Protection Board, a minor league, hopelessly politicized
administrative forum. Previously federal workers had access to the
courts to challenge First Amendment reprisals, where they could pursue
suits for punitive damages in a jury trial before their peers.
Although Congress had not stated it was abolishing constitutional
remedies when it passed the 1978 statute, it also did not explicitly
preserve them.
Faced with this ambiguity, in 1983 the Supreme Court leaped at the
chance to wash its hands of federal employment disputes. In Bush v.
Lucas, the Court held that whenever a Civil Service Reform Act remedy
is available, the Constitution is not. Although the Reform Act's
primary sponsors filed a friend of the court brief protesting that
they had intended no such result, Congress has not acted to overturn
Bush.
Whistleblower Protection Act of 1989
After 1982 Congress increasingly recognized that its 1978 free
speech shield had nightmarishly backfired, actually providing a clear
channel for increased harassment. In 1982, Special Counsel Alex
Kozinski was forced to resign after the revelations that he was
teaching a course for federal managers on how to fire whistleblowers
without getting caught. Representative Patricia Schroeder also
introduced a bill to abolish the OSC, which had become a Trojan Horse
for whistleblowers -- a legalized dirty tricks unit that identified
wounded dissenters seeking help and then teamed up with employers to
finish them off.
Although the bill and momentum to abolish the OSC died after
Kozinski's resignation, Congress went back to the drawing board. No
one could credibly claim the system was working, due to accelerating
disclosures of continuing civil service abuses and intensifying
exposures of bureaucratic corruption that typically had been
covered-up for years.
After three congressional hearings, in September 1986 the House
unanimously passed a Whistleblower Protection Act. The Senate did not
act on the legislation, however, due to time pressure and an
Administration veto threat. Two more hearings later, in October 1988
the House and Senate unanimously passed a nearly-identical bill.
After appearing to change his mind and praising the legislation in a
letter to Congress, President Reagan waited until Congress adjourned
and then pocket-vetoed it. Congress did not back down. Congressional
negotiators persuaded the Bush Administration to accept an even
stronger bill, and on March 19 it again passed unanimously. The
Whistleblower Protection Act of 1989 became effective July 9.
The jury is out as to whether the new legislation will be any
better than its counterproductive predecessor. On the plus side, the
new law creates the strongest language on the books affirming freedom
of speech. It also represents an unprecedented mandate for the law of
dissent. It is rare that Congress passes anything unanimously, let
alone twice in six months. It is even rarer to find a consensus
between the White House, Congress, labor and civil liberties groups.
By contrast, however, whistleblowers still are burdened by the
weakest remedies. They still are not entitled to a jury trial by
their peers, or to punitive damage remedies like all other Americans
-- even convicted felons -- can receive when the government violates
their constitutional rights. Other than the Supreme Court, they only
can appeal adverse bureaucratic decisions to one appellate court, the
Federal Circuit, which has an obsessively hostile track record of
ruling against whistleblowers and whose precedents butchered freedom
of speech. Whistleblowers will continue to be at the mercy of the
MSPB and Special Counsel, whose abuses led to passage of the new law
which they will have a monopoly to implement at the administrative
level where nearly all the action will be. In short, the new rights
will be no stronger than the will of discredited civil service
agencies to enforce them.
The new law has ten major provisions to strengthen the rights of
public servants. It -- 1) provides teeth for the Government Employees
Code of Ethics; 2) closes the loopholes in legal protections; 3)
defangs the Office of the Special Counsel; 4) gives whistleblowers
control of their cases; 5) eliminates the legal motives test; 6)
reforms unrealistic legal burdens-of-proof; 7) provides interim relief
for those who win an initial hearing; 8) gives a transfer preference
to victorious whistleblowers; 9) strengthens whistleblower disclosure
channels; and 10) saves alternative statutory remedies. Each of these
changes are discussed in more detail below.
1. Enforcing the Government Employees Code of Ethics. The law
forbids agencies from acting against any employee for declining to
engage in illegal activity. Section 4(b), 5 USC 2302(b)(9). Prior
law required employees to follow orders and protest after the fact,
which meant they could be fired for refusing to be lawbreakers. The
change gives teeth to the principles of the Government Employees Code
of Ethics.
2. Closing the loopholes in legally-protected dissent. The law
specifies that "any" whistleblowing disclosure is protected if the
contents are significant and reasonable. Section 4(a), 5 USC
2302(b)(8). This eliminates the current Swiss cheese definition of
whistleblowing. Prior law only protected "a" disclosure, which the
Office of the Special Counsel and Federal Circuit Court of Appeals
interpreted as an excuse to exclude dissent unless the whistleblower
was the first to expose a problem; could prove his or her motives were
to help the public, and not self- interest; was accusing specific
officials of intentional misconduct; first went through the agency
chain-of-command; phrased the dissent as an accusation rather than a
question or request for information, or overcame other bureaucratic
loopholes that the OSC and Merit Board created as necessary to rule
against dissenters.
3. Defanging the Office of the Special Counsel. Although created
as the government's defender of those victimized by merit system
violations called prohibited personnel practices as discussed above,
the OSC earned a well-deserved reputation as the administration's
primary weapon against whistleblowers. The new statute requires the
OSC to protect whistleblowers and not act contrary to their interest.
Section 2(b)(2)(B).
More specifically, the OSC must -- provide status reports to
employees seeking help (Section 3, 5 USC 1214(a)(1)(A) and (B)); stop
working on a case after 120 days without the employee complainant's
consent (Section 3, 5 USC 1214(a)(4)); refrain from leaking the
employee's evidence or OSC-obtained information about the complainant
to the employer or others during or after the investigation, unless
the employee consents (Section 3, 5 USC l2l2(h)); refrain from
disclosing the identity of an employee making a whistleblowing
disclosure without prior consent, even if "the Special Counsel
contends violating confidentiality is necessary for the OSC to carry
out its duties (Section 3, 5 USC 1213(g)(2) and (h)); refrain from
settling a case without including the employee's comments and gaining
legal approval (Section 3, 5 USC l2l4(b)(2)(C)); explain the evidence
supporting as well as opposing the employee's reprisal charges, in any
letter closing out a case (Section 3, 5 USC l2l4(a)(2)(A)); and
refrain from intervening in related appeals without the employee's
consent. Section 3, 5 USC 1212(c)(2). Further, any negative OSC
findings cannot be introduced in the subsequent MSPB appeal. Section
3, 5 USC 1214(a)(2)(B). These protections will shield all federal
workers from OSC abuses, not just whistleblowers.
4. Giving whistleblowers control of their cases. For many common
forms of reprisal, whistleblowers had a choice of the OSC or nothing.
In addition to piling on against reprisal victims, the OSC has
practiced "secret law," with employees unable to learn the evidence
used against them or to confront their accusers. Under the new law,
all federal workers or applicants can challenge whistleblower
reprisals through an on-the-record, due process hearing at the Merit
Systems Protection Board. Employees who use their new hearing rights
must first file complaints with the Special Counsel for 120 days, but
if there is no decision after that time the employee is free to take
control of the case by filing for a hearing. Section 3, 5 USC
1214(a)(3)(B). Similarly, if the OSC turns down the complaint on an
allegation not previously appealable, the employee can file for a
hearing within 60 days. Section 3, 5 USC 1214(a)(3)(A). Further,
employees can file their own action to seek temporary relief through
an administrative stay against a threatened or ongoing whistleblower
reprisal. 5 USC 1221(c).
5. Eliminating the legal motives test. Under prior law
whistleblowers had to prove that retaliation was a "predominant" or
"motivating" factor in order to establish an initial case. This was
the most frequently-cited reason why the MSPB ruled against
whistleblowers. It's almost impossible to prove a manager's hostile
state-of-mind without a confession. Under the new law, whistleblowers
only will have to prove that dissent was "a contributing" factor in
the job action (Section 3, 5 USC 1214(b)(4)(B)(i) and 1221(e)(1)), and
are explicitly relieved of having to prove that the agency had
retaliatory motives. Section 4, 5 USC 2302(b)(8).
The definition of contributing factor is the cornerstone for the
new legal groundrules. To underscore its mandate, congressional
leaders repeated the definition five times during the floor debate
preceding unanimous Senate and House passage of the new law. They
explained that "a" factor and "a contributing" factor both have the
same definition. The terms mean "any factor, which alone or in
connection with other factors, tends to affect in any way the outcome
of the decision." The adjective "contributing" pertains to a factor's
relevance in the personnel action, not to its significance.
6. Reforming unrealistic legal burdens-of-proof. Under past law
whistleblowers had the burden throughout their legal challenge to
prove a prohibited personnel practice by a preponderance of the
evidence. Under the new law once an employee establishes an initial
case that whistleblowing was "a contributing" factor in the personnel
action, the burden-of-proof shifts to the agency to prove by "clear
and convincing evidence" -- one of the most difficult standards in
civil law -- that it would have taken the same action anyway on
independent grounds. Section 3, 5 USC l2l4(b)(4)(B)(ii) and
1221(e)(2). This also reverses the MSPB's precedent in the Berube
decision that whistleblower firings are legal if the agency "could
have" acted on independent grounds.
7. Interim relief. Under prior law employees who prevailed at an
initial MSPB hearing stayed off the job and off the payroll while the
agency pursued an appeal to the full Board. Under the new law,
whistleblowers or others who win at the initial hearing must be
returned to the job or at a minimum the payroll during the appeal.
Section 6, 5 USC 7701(b)(2).
8. Transfer preference. Legal victories for whistleblowers have
been hollow when they were returned to hostile, vengeful supervisors
whom they had just defeated. Typically they soon were fired again on
new charges. The new law allows whistleblowers who win to get
preference for a new job and a fresh start. Section 5, 5 USC 3352.
9. Strengthened whistleblower disclosure channels. The new law
forbids the Special Counsel from leaking a whistleblower's charges
back to the target agency, unless the OSC has the employee's consent
or rules the dissent is reasonable and orders the agency to
investigate and report back. Section 3, 5 USC 1213(g)(2). When the
report comes in, the new law requires the whistleblower's critique to
be included in all public releases and files -- which is important
since most agency self- investigations produce self-exonerations. 5
USC 1213(e)(3).
10. Saving alternate statutory remedies. As discussed above, The
Bush v. Lucas Supreme Court doctrine held that an employees' right to
file suit in district court for constitutional violations was
cancelled by duplicative civil service administrative remedies -- a
horrible trade. The recent judicial trend has been to cancel out
parallel statutory remedies as well. The new law explicitly protects
all other statutory remedies that could be alternatives to the
Whistleblower Protection Act. Section 3, 5 USC 1222.
Military Whistleblower Protection Act -- 1988
In an effort to give military whistleblowers the same protection
from reprisal offered to civilians, Congress passed the Military
Whistleblower Protection Act that was introduced by Rep Barbara Boxer
(D-CA). It established formal procedures for handling harassment
claims within the Services.
Military personnel now have the right to an immediate
investigation by the Department of Defense Inspector General and a
hearing by their particular service's Board for the Correction of
Military Records (BCMR) if they are harassed for blowing the whistle
on fraud, waste, and abuse. An earlier and unsuccessful military
whistleblower bill introduced in 1986 provided for an appeal to a
civilian court if the whistleblower was dissatisfied with the BCMR
ruling. But the provision was dropped for the 1988 version of the
Military Whistleblower Protection Act and was replaced with a final
appeal to the Secretary of Defense. The bill is also useful for
military whistleblowers because it strengthens their right to
communicate directly with the Congress.
When the provision for appeal to civilian courts was eliminated
from the bill, it lost a great deal of its punch and became little
more than a stronger statement of military whistleblower's rights.
The enforcing agencies are still the service Inspectors General and
the BCMR, two groups that have been seen by military whistleblowers as
hatchet men for the services. Hopefully, Congress will review the new
policy after a reasonable period of time to see how it may be
strengthened.
In the meantime, service members should remember that current law
prohibits anyone from interfering with your right to communicate with
a member of Congress. But don't depend on the Military Whistleblower
Protection Act to provide effective protection from reprisals that may
arise due to exercising that legal right.
State Law
Because there is no comprehensive federal law which prohibits
employers from retaliating against whistleblowers, some states have
adopted common law remedies under the "public policy exception to the
termination-at-will doctrine." What this means is private sector
employees who work without a contract can no longer be fired "at will"
for blowing the whistle. In the past, an employee at-will could be
fired for any reason or no reason. But today, 26 states offer
protection to at-will employees who are fired for exercising their
constitutional right of free speech -- such as the act of
whistleblowing.
Although each of the 26 states interpret the public policy
exception slightly differently, most states classify a retaliatory
discharge as a tort (which is a wrongful act for which a civil action
can be brought). Consequently, employees who file claims under this
cause of action are entitled to jury trials and, if successful,
punitive damages (which are damages awarded to you beyond the actual
loss, so as to punish the source of the damage). These laws give
private sector whistleblowers who have no federal protection from
retaliation, a chance to fight back in court.
The following states have recognized the public policy exception
to the termination-at-will doctrine:
Arizona, California, Connecticut, Florida, Hawaii, Idaho, Illinois,
Kansas, Kentucky, Maryland, Massachusetts, Michigan, Montana, Nevada,
New Hampshire, New Jersey, New Mexico, North Carolina, Oregon,
Pennsylvania, Tennessee, Texas, Virginia, Washington, West Virginia,
and Wisconsin.
Fifteen states have passed statutes protecting whistleblowers:
California, Connecticut, Delaware, Hawaii, Illinois, Indiana, Maine,
Maryland, Michigan, Montana, New Jersey, New York, Texas, Washington
and Wisconsin.
Some of these states provide broad protection, while others
provide only narrow or limited protection. Consult an attorney to
determine what kind of protection is offered in your state and what
procedure to follow in filing a claim.
Piecemeal Protections -- The Private Sector
In states without the public policy exception, corporate employees
must contend with a confusing, piecemeal system of scattered free
speech laws. The federal government has passed whistleblower
protection provisions tucked into sixteen various federal statutes to
shield employees who help to enforce those laws. Most involve
environmental protection.
Unfortunately, while similar each law has its own peculiarities.
Further, none cover corporate employees for all public policy dissent,
only for an employer's violation of the particular statute at issue.
As a result, food industry workers are legally protected for
disclosing air and water pollution by their employer, but not for
revealing shipments of contaminated poultry or beef from cattle with
tuberculosis. A 1987 report of the Administrative Conference of the
United States attacked this irrational, patchwork approach to the law
of dissent.
In an attempt to restore coherence, Senators Howard Metzenbaum
(D.- Ohio) and Senator Grassley have proposed an Employee Health and
Safety Whistleblower Protection Act to fill the holes by protecting
private or state and local employees who help to defend any federal
health and safety law. It also would correct unrealistic provisions
in current law, such as extending the statute of limitations from 30
days to six months after the discriminatory act. Many workers aren't
even aware of their rights for the first 30 days after firing.
No government agency has opposed the bill in principle, since a
free flow of information from witnesses is essential for law
enforcement. But the Bush Administration's position is murky, the
powerful meat and poultry lobby is hysterically opposed and the
Chamber of Commerce has worked to undercut the legislation. As a
result, few co-sponsors have been recruited. The prospects for this
reform will depend on the intensity of support from constituencies and
citizens groups who would benefit. Unquestionably, there will be
increased exposure of corporate crime if private sector whistleblowers
have legal protection for trying to prevent health and safety
tragedies.
BLOWING THE WHISTLE WHEN YOU HAVE A SECURITY CLEARANCE
It goes without saying that when you have a security clearance and
access to classified documents, you should not give classified
documents to uncleared people for any reason. However, that does not
protect your clearance when you blow the whistle. There are several
new initiatives by the Executive Branch that make it easier for the
bureaucracy to retaliate against whistleblowers by taking away their
security clearances. Because it is a harder job to fire someone who
has told embarrassing truths, the bureaucracy can ruin a career by
taking away your security clearance, which often makes you unable to
work in your field.
In an apparent attempt to prevent whistleblowers from leaking
information about government fraud and waste, President Reagan
introduced Standard Forms 189 and 4193 in 1983. These forms are known
as non-disclosure agreements. The controversial forms demand secrecy
pledges from all government employees with access to classified
information.
The seeds of Standard Form 189 were sown by President Roosevelt in
1902 and further germinated under President Taft in 1909. By 1909,
civil servants were prohibited from furnishing information to Congress
directly. Taft's order provided that no federal employee "shall
respond to any request for information from either House of
Congress...." In the years following Taft's new order, Congress acted
to neutralize it by passing the Lloyd-LaFollette Act of 1912. This
Act provided that "the right of employees to petition Congress ... or
to furnish any information to either House of Congress ... may not be
interfered with or denied."
Allegedly or ostensibly, in response to concerns about leaks of
information, the Reagan Administration attempted to push the clock
back to 1909 by issuing National Security Decision Directive 84, which
initially expanded the use of polygraph tests and ordered
prepublication review agreements for federal employees with security
clearances. Fortunately, Congress stepped in and pressured the
administration by holding hearings on the subject. Ultimately, Reagan
withdrew the proposed expansion of polygraph tests. The
Administration agreed to withdraw the prepublication review, or prior
restraint, provisions but later changed its mind and reneged on the
commitment.
In addition to the two polygraphs and prepublication review, NSDD
84 included authorization to issue nondisclosure agreements. This led
to Standard Forms 189 and 4193. The former was for any employee with
a security clearance; the latter for employees with clearance for
access to particularly sensitive information. The forms served, in
essence, as contracts between the government and the employee. Under
the terms of these "contracts," if the employee released any
classified or "classifiable" information, he or she breached the
agreement, for which the employee agreed to loss of security clearance
and criminal prosecution. The term "classifiable" meant all
information that could or should have been classified, or "virtually
anything," in the words of the federal official responsible for its
enforcement. It left open the option for after-the-fact
classification and liability. To add insult to injury, under Air
Force regulations it is evidence of disloyalty for an employee to
exhibit reluctance about signing the form that surrenders his or her
constitutional rights.
Both forms also prohibited disclosures to "unauthorized"
recipients. This barred release unless the agency that created the
documents agreed the proposed recipient had a "need to know" the
information -- even if that person also had a security clearance and
chaired a congressional oversight committee. The net impact was that
all whistleblowing disclosures involving information that could be
classified under some circumstances had to be submitted for prior
review. This was a formula to seal coverups, since few corrupt
bureaucrats agree that Congress need to know about their misconduct.
SF 4193 reinstated the lifetime prepublication review that the
Administration had promised to remove. This is a complete system of
prior restraint, and goes well beyond prior Supreme Court decisions.
Originally, the Reagan Administration proposed a campaign to get
voluntary signatures for SF 189. In November 1986, however, just as
the Iran-Contra scandal was breaking, it issued regulations making the
agreement a mandatory condition for all employees to keep or obtain
their security clearances, a job prerequisite for some 3.5 million
people. Senator Charles Grassley went so far as to call SF 189 an
effort "to gag public servants" and "place a blanket of silence over
all information generated by the government."
In response to this threat to freedom of speech, Congress passed
section 630 of Public Law 100-202 which prohibited the use of any
federal funds for fiscal year 1988 for the implementation of SF 189 or
any similar nondisclosure forms. A similar section was included in
the continuing resolution for fiscal year 1989 as well.
Even after Congress eliminated funds for the implementation of SF
189 in December 1987, the Administration collected 43,000 signed
nondisclosure forms. In response, the American Foreign Service
Association and seven Members of Congress filed a lawsuit challenging
the Administration's refusal to obey the statute. A decision by
District Court Judge Oliver Gasch conceded that the law had been
violated but also found that Congress had acted unconstitutionally in
passing it. Judge Gasch reasoned that as Commander in Chief the
President has a monopoly of power to decide restrictions on the
disclosure of information sensitive to national security. Judge Gasch
further held that Congress' only constitutional authority is to pass
penalties to punish those who violate the President's powers. Despite
throwing out the statute, in a related decision the District Court
found the term "classifiable" to be unconstitutionally vague.
Meanwhile the Administration issued new nondisclosure forms -- SF
312 to replace SF 189, and SF 4355 to replace SF 4193 -- which remove
the controversial "classifiable" language. Unfortunately, they also
ignore the Executive Order requirement for classified information to
have markings identifying its secret status before employees can be
held liable for disclosure. If an employee is uncertain about an
unmarked document's status, the only way to comply with the new,
improved gag orders is to "ask the boss" -- a whistleblower
identification scheme that creates a Catch 22: either whistleblowers
will be exposed to reprisal, or will decide to keep quiet instead of
challenging bureaucratic misconduct. The new forms retain and expand
the requirement to identify the proposed recipient to a supervisor and
to obtain prior approval based on that individual's "need to know" the
information.
They also retain all the other repressive features of the gag
orders, including the claim that the government owns all information
covered by the forms about which an employee may learn. Ominously,
the government's property right over information is the foundation of
the British Official Secrets Act.
In 1989 the Supreme Court added to the confusion by unanimously
overruling Judge Gasch's decision that Congress acted
unconstitutionally in passing the anti-gag statute. Unfortunately,
the Court did not decide Congress had the authority to maintain open
disclosure channels for whistleblowers. Rather, the justices held
that the District Court had not adequately supported its conclusion
that SF 312 still violated the statute. The Supreme Court said that
until that issue was resolved, any rulings on constitutionality were
premature.
For the time being, the anti-gag statute is back in effect but its
future is uncertain. Enclosed as an appendix is a model addendum that
employees may find useful if they wish to modify previously-signed
nondisclosure agreements or are ordered to sign a nondisclosure
agreement or else forfeit their security clearances. The addendum
specifies that the signature does not mean the employee is agreeing to
waive any of his or her free speech rights.
In January 1989 Congress learned of still another attempt to
cancel out the constitutional rights of employees with security
clearances. A proposed Executive Order would have reverted to-
pre-McCarthy era days by eliminating all due process for decisions to
grant or deny security clearances. The employee would not be entitled
to any explanation. All an agency would have to do is "just say no."
The proposal would have allowed unscrupulous agency managers to force
employees out of the government for reasons that would be illegal if
disclosed. In short, the proposal had the potential to circumvent the
new Whistleblower Protection Act and all anti-discrimination statutes
by creating a system of secret employment law for security clearances.
After the Administration was unable to defend the proposal at hearings
chaired by Representative Gerald Sikorski (D.- Minn.), the plan was
withdrawn. A new Interagency Task Force has started work again,
however, on overhauling the system of due process for security
clearances.
Even without the new proposal, background security investigations
remain a prime weapon to harass whistleblowing civil servants and
government contract employees. Existing due process rights are little
more than token. The administrative judges at the Pentagon work for
the prosecutors seeking to yank the clearances -- the ultimate example
of anti- independence for a legal decisionmakers. Indeed, the
Pentagon's system has been plagued by "directed decisions." This means
the administrative judge receives an order to rule against the
appellant before the hearing begins.
The law of security clearances remains the Achilles Heel for
freedom of speech. Employees with clearances are well-advised to
zealously protect their anonymity if they blow the whistle, because
absent a successful political/public relations campaign they have
little chance to defend themselves.
THE PROMISED LAND -- MAKING FREEDOM OF SPEECH A REALITY
The principles to transform free speech and government
accountability from lip service to reality are no mystery. Those in
power simply prefer the former to the latter. Six basic groundrules
are obvious. Whistleblowers must --
1)have access to courts where the decisionmakers have judicial
independence
2)be entitled to a jury trial;
3)have remedies that hold individual harassers personally liable,
so that an
4)gain access to legal shields for following government or
professional codes of
5)have the ability to go on the attack against lawlessness by
restoring citizen
6)restore due process rights for all violations of constitutional
rights, even when
A model whistleblower protection statute is enclosed as an addendum.
CHOOSING AND WORKING WITH AN ATTORNEY
Whether a whistleblower's story has a happy or tragic ending
depends to a frightening degree on picking the right lawyer and
maintaining an effective working relationship. In the eyes of the
law, the attorney and client are as one. The attorney is the client's
"mouthpiece," and the client automatically gets the benefits or
liabilities of the attorney's statements and decisions. Obviously,
picking a lawyer is a very serious decision, as significant as any
other in the whistleblowing cycle.
Unfortunately, most individuals are so anxious to get their case
in the hands of an "expert" that they accept the first lawyer who will
take them on affordable terms, without truly knowing the partner upon
whom their career rights will depend. It might work out, but there
are unacceptably high risks to future happiness, financial well-being
and legal success.
Ultimately, trust and intuition are as important as a catalogue of
"do's" and "don'ts" in selecting an attorney. Like any partnership,
to be effective the attorney and client should like each other and
have a rapport based on mutual respect, at least within the context of
their professional relationship. After all, they're each relying on
each other in a high-stakes conflict where they're underdogs by
conventional measures. But the smart whistleblower will follow both
intuition, and the systematic common sense of a checklist based on his
or her own priorities and the lessons painfully learned by others who
have gone through the same experience.
Our advice to any whistleblowers who need legal representation is
summarized below. Some of the suggestions may not be appropriate in a
given case. On the other hand, these tips are not all-inclusive.
They represent a composite of experiences shared by those who have
been represented by GAP or sought help from either of our
organizations. Please let us know at GAP and PMP if you have items to
add to the list, and if you have had positive or negative experiences
with a particular lawyer. We both receive a steady stream of requests
from new whistleblowers who could benefit from lessons learned.
1. Identifying prospective attorneys. Do not overlook
word-of-mouth referrals from friends who may have had similar
experiences and enjoyed a good attorney-client relationship with a
lawyer. Contact GAP and PMP for suggestions. A routine part of our
service to whistleblowers is to provide attorney referrals.
Another approach is to contact public interest or community
organizations -- locally, or through their national headquarters or
Washington, D.C. office -- that have an ongoing interest in the
issues of concern to you. Remember, the confidential attorney-client
relationship will not apply during your discussions with lay
representatives at those groups, so unless you want to make a
disclosure to them you should avoid repeating your dissent. Just
point out that you've been retaliated against for pursuing the same
values on the job that their organization champions in the community
or elsewhere. Then ask for their help in finding an attorney with a
good track record in employment law, the topic of your dissent, or
preferably both. Third, traditional sources such as the local bar
association or relevant committees of the American Bar Association can
help identify respected specialists. Your local public library also
should have a copy of the lawyer's directory, Martindale-Hubbell,
which describes the specialties of attorneys under a variety of
cross-references.
2. Getting to know each other. Probably the most common reason
why working relationships go sour between attorneys and clients is
that they entered their partnership with differing expectations. As a
result, the primary rule in choosing a lawyer is to pin down the
details up front that are important to you.
A few suggestions apply before you even talk to a prospective
lawyer, however. Take the time to summarize your story in writing and
be concise -- preferably less than two single-spaced, typed pages and
never more than five. Take your time preparing this document.
Prospective attorneys may appreciate the time they save by reading it
before they meet with you. They can then get down to asking you the
hard questions from a foundation of knowing the basic dispute and its
context. Your case summary also will be an attorney's first
impression of your communications skills, and will be a benchmark to
test your credibility through questioning to check whether you have
exaggerated the facts.
Also take the time to identify solid candidates as supporting
witnesses, and be prepared to describe how their testimony could help.
Similarly, prepare a list of relevant documents currently or
potentially available. It takes a near- miracle to win without either
strong supporting testimony or documentary evidence.
Your primary goal at the initial interview is to sell yourself and
therefore build the attorney's confidence in your prospects for
winning. As a result, the list below of suggested questions about
groundrules for working with the attorney is probably too
comprehensive for an initial interview. Prospective lawyers may be
wary of someone who immediately cross- examines them on too wide a
range of topics. First they want to make up their minds about you.
Before you get serious about signing a retainer, however, you need to
know where you both stand on these matters. And some of the first
suggestions below obviously must occur at the initial interview.
* Find out in advance if there is a fee for the initial
consultation with the lawyer, and if so, how much it will cost.
* Before you share your life and problems with the lawyer, confirm
that the attorney-client privilege applies to what you discuss and
that the information will not be revealed without your consent.
* Even if you have confirmed the confidentiality of the
discussions, don't take any chances. Learn whether the attorney has
any other clients related to your dispute. Before your introductory
meeting, check the list of "representative clients" in Martindale
Hubbell. (Old copies may have more complete listings.) Then ask the
attorney before you disclose confidential information. For example,
one whistleblower at a poultry slaughter plant later learned that his
powerful lawyer represented the state's poultry trade association.
Not surprisingly, the lawyer allowed the statute of limitations to
lapse on the whistleblower's case. Also not surprisingly, the
employee could not find anyone to take a malpractice case against the
lawyer in the state, which was dominated by the poultry industry.
* Make clear your goals or objectives, both with respect to the
attorney's representation, as well as the larger context of the public
policy dispute about which you're blowing the whistle. For example,
some lawyers will be uncomfortable if you continue to dissent publicly
during the lawsuit. Other lawyers, who are advocates for the values
you were defending with your dissent, will be uncomfortable if you do
not. Similarly, different firms are appropriate for those who wish to
settle a dispute quietly, compared with those whose goal is to have
their day in court. For example, GAP now has a policy not to accept
clients who are willing to accept financial settlements that gag them
from cooperating with ongoing government investigations of their
dissent.
* Determine the attorney's willingness to work with groups helping
to champion your dissent, if you want to continue making a public
policy contribution. Some attorneys are unwilling to relinquish
control of valuable information they learn from depositions or
subpoenaed documents until the lawsuit is over, which might be many
years and when that evidence could have prevented needless scandals or
tragedies. There are valid reasons to keep significant evidence
secret. For example, premature disclosures may cut out future
voluntary cooperation by your former employer or colleagues in
pretrial work to discover necessary facts for the trial.
Alternatively, it may preclude settlement as an option by forcing an
employer to neutralize your newest attacks through discrediting you in
the lawsuit. These are tough choices and ultimately they are your
choices. But you should pick an attorney on a similar wave length at
the beginning, to avoid the possibility of serious conflicts when they
would be highly damaging, at a critical point in the case.
* Work out what your financial burdens and options are.
Disgruntlement with a client for failing to keep up with expected
payments is a major reason why lawyers reduce the time and energy they
put into a case.
* Pin down who will handle the case. Frequently it is not the
lawyer who discusses it with you initially. Don't make a decision
until you meet and have confidence in the specific attorney who will
be responsible for defending your rights.
* Find out how much time the attorney has and will commit to your
case. Even the best lawyers are inadequate if they are so burdened by
an overextended docket that they can't give you the priority you may
need. On the other hand, many clients have an unrealistic expectation
of how much time truly is needed in a particular case.
* Determine how much time and effort the attorney wants and/or
expects from you as a participant in preparing your case. Some
attorneys prefer their clients to be functional partners, while others
view the same client initiatives as interference. Whistleblowers,
too, range from those who can't stay away from their cases to those
who prefer to get on with their lives and not be bothered
unnecessarily.
* Get a commitment as to how much notice you will receive of
developments, information and decisions that make a difference for
your case.
* Learn the attorney's track record in handling cases similar to
yours, such as won-loss record and significant precedents or benefits
obtained for other clients. One way to find out is by reviewing
public court documents, such as briefs and relevant judicial decisions
in similar cases that the attorney has handled.
* Pin down your role in any potential settlement negotiations,
including advance notice of proposals before they are made or of
offers from the other side before any response is issued, and the
attorney's willingness to respect your authority as the final
decisionmaker in the settlement. A client is in a position of
comparative weakness if an attorney threatens to quit unless
settlement terms are accepted on the eve of trial. Be careful to
remember, though, that your lawyer is the partner on your team who has
unique expertise. Most of us have an unrealistic expectation of what
we deserve to achieve in a settlement, which definitionally is a
compromise where both parties are partially disappointed. Also,
remember that the great majority of cases settle before trial.
3. Signing the retainer. The main advice here is remember that
the retainer agreement is a contract. Treat this agreement with as
much respect as you would any other contract. It may be one of the
most important you ever sign. Read the terms carefully to make sure
its provisions match up with any informal agreements reached on items
listed above or from your own checklist. If you don't understand a
term, ask the attorney to explain it and to replace the legalese with
the English translation you understand. If the attorney balks, that
is a warning symptom to consider.
4. Maintaining the working relationship. Like any other
relationship, the attorney-client version requires regular tending.
It is liable to sour if either party takes the other for granted. The
tips below illustrate a few of the ways you can do your share to
maintain a healthy partnership.
* Pay your bills on time! If there is a financial crisis, give
your lawyer as much warning as possible and conscientiously try to
make alternative arrangements. This is a matter both of respect for
your attorney's financial needs and to preclude a common excuse for
tardiness or unenthusiastic advocacy.
* Respect your attorney's time burdens and responsibilities to
other clients. Don't cry wolf about emergencies, and don't demand
instant gratification for non-emergencies. When possible, put
developments in writing instead of demanding a phone or personal
conference with your attorney. Confirm periodically, however, that
the lawyer has read, understood and properly filed your written
contributions.
* View your lawyer as a human being who has a family, gets tired,
etc. Attorneys understandably resent being perceived only as success
objects and may get resentful periodically if they think that's your
only interest in them. It's not to your advantage for your champion
to resent you.
* Make sure that you and your lawyer continue to be clear about
your comparative responsibilities and divisions of labor. Sometimes
adjustments are necessary during the course of a case.
* Don't assume that progress is being made or that nothing has
happened if you haven't heard from your attorney for an extended
period. Communication gaps often are innocent but damaging lapses.
* Don't insist on dealing only with the lawyer running the case.
Get to know the junior attorney, administrative assistants and law
clerks who are important parts of that attorney's team. Work through
them whenever necessary. They may be putting in a majority of actual
time spent on your case anyway.
* Inform your attorney of any initiatives that you may wish to
take for getting reinforcements or additional help. That way you
won't surprise your attorney by letting the cat out of the bag
prematurely on a sensitive matter, or end up either duplicating or
working at cross purposes with your lawyer.
The attorney-client partnership unites the whistleblower's
values with the lawyer's expertise. Remember, your lawyer is working
for you. But while you're the boss, your attorney is the expert guide
to lead you through treacherous, largely-unknown territory.
CONCLUSION
This handbook is designed to tell you of all the risks in the
slippery path of whistleblowing. If we have scared you from blowing
the whistle, perhaps you weren't ready. If you are still determined
to do so, we now hope that you will do it in a careful, planned and
effective way. The Project on Military Procurement and the Government
Accountability Project are happy to give you individual advice on your
unique situation after you have read this handbook and know your
alternatives. Please contact the Project on Military Procurement for
whistleblowing about any aspect of national security, and the
Government Accountability Project for legal assistance in all areas of
whistleblowing. We hope that this handbook lets you do the right
thing for your country while trying to protect your career and your
personal life. Good luck.
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<20> SNAFU - LIBRARIES <20>
<20> <20>
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<20> <20>
<20> B - Browsing Library <20>
<20> <20>
<20> J - Research Library <20>
<20> <20>
<20> P - Defense Procurement, an Overview <20>
<20> <20>
<20> H - Help <20>
<20> <20>
<20> Q - Quit Options <20>
<20> <20>
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Enter an above letter then press return. Your choice? B
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<20> <20>
<20> A - About This Library and its Organization <20>
<20> <20>
<20> B - Weapons Testing <20>
<20> <20>
<20> C - Secrecy Issues and Black Weapons Programs <20>
<20> <20>
<20> D - Defense Contract Issues <20>
<20> <20>
<20> E - Ethics and Conflict of Interest <20>
<20> <20>
<20> F - Readiness, Force Structure, and Budget Issues <20>
<20> <20>
<20> G - Weapons That Don't Work <20>
<20> <20>
<20> Q - Quit <20>
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Enter the letter of an above library category. Your choice? A
About the Browsing Library...
~~~~~~~~~~~~~~~~~~~~~~~~~
A TALE OF TWO LIBRARIES
There are two major "library" facilities available on this
computerized information system that we call SNAFU.
These are the "Browsing Library", and the "Research Library", both of
which are part of the "Library System".
The Research Library is meant for the use of journalists or others who
are already knowledgable on military procurement matters. This
library is meant to give such a user "no-nonesense" access to a large
volume of hard documentation. We know that reporters will want to
have immediate access to the actual documents without having to sift
through any layers of explanatory text written by us. Therefore, the
presentation philosophy of this library is "just the facts..."
The Browsing Library's presentation philosophy is somewhat different.
Its purpose is to make possible a sort of educational journey through
the issues of military procurement. This journey ultimately gives the
user access to the same documentation that is available in the
research library, but the documents are preceded and followed by our
own explanatory text. Often this will be an anecdotal history of the
material the user is being presented. Thus, the Browsing Library
provides a more structured tour of our material. Hopefully the
structuring will allow the uninitiated to access our material as more
of a coherent whole, or mosaic, rather than a disjoint set of
documents. We think both libraries will meet a distinct need.