Whistleblower Protection Blog : Whistleblower Lawyer & Attorney : National Whistleblower Legal Defense and Education Fund : Whistleblower Protection, Fraud Claims : Washington DC

The Sixth Circuit U.S. Court of Appeals issued a decision this week that local government officials can be held liable for accusations they make against  citizens when it is "reasonably foreseeable" that their statements will cause the citizen to be fired from their job. Martha Paige worked as an accountant for Bunnell Hill Development Company in Warren County, Ohio. She and her husband owned a large farm in that county. When Paige learned about a proposed road project that would interfere with their farming, she organized the Residents' Association of West Central Warren County. On August 6, 2007, Paige attended a public meeting of the Warren County Port Authority. Kimberly Coyner is executive director of the Port Authority. Before the meeting started, Coyner asked Paige about where she worked, and Paige disclosed that she worked for Bunnell Hill. During the meeting, Paige identified herself as president of the Residents' Association, and expressed concerns about an interstate project. Paige alleges that on August 13, 2007, Coyner called Bunnell Hill and told a manager that Paige identified herself as speaking for Bunnell Hill. On August 16, 2007, Bunnell Hill fired paige for using the company name to oppose the interstate project, and disclosed Coyner's call as a basis for the termination.

• Email This
• Print
• Comments
• Trackbacks
• Share Link

Student Paresh Dave of the Annenberg School of Communication and Journalism at the University of Southern California (USC) has written an incisive story about how national security whistleblowers can protect themselves while blowing the whistle on misconduct by government officials. Dave's story is called, "Whistleblowers Have Some Protection, If They Leak To The Right People." He notes that the government is currently investigating detained Specialist Bradley Manning to see if he could be the source for the WikiLeaks.org release of 91,000 classified State Department cables. Dave spoke with me about my prior blog post about how Manning might have protected himself if he had consulted a lawyer before blowing the whistle on the unnecessary civilian casualties of the wars in Iraq and Afghanistan. If he had learned about the Military Whistleblower Protection Act, 10 U.S.C. § 1034, he could have made his disclosures to members of Congress and preserved a legal defense to the impending charges.

• Email This
• Print
• Comments
• Trackbacks
• Share Link

National media is abuzz today with the release by WikiLeaks.org of 91,000 classified State Department cables about the war in Afghanistan. WikiLeaks.org also disclosed that it had previously released the cables to The New York Times, the Guardian of London, and Der Spiegel to help it review the documents for newsworthy information and to screen out information that could cause harm if disclosed. According to a Washington Post story, WikiLeaks.org founder Julian Assange called the release, "the nearest analogue to the Pentagon Papers." Indeed, the cables detail the extent of assistance the Taliban have received from Pakistani intelligence officers. They show the debilitating demands faced by soldiers on the field, and the extent of civilian casualties and waste in this protracted war. It does sound more and more like Vietnam. Truth is the first casualty of war, and whistleblower leaks are the best medicine.

• Email This
• Print
• Comments
• Trackbacks
• Share Link

More and more employers are investing in devices that can track their employees with the Global Positioning System (GPS). Pagers, cell phones and other devices can include GPA tracking. Employers can use the available information to record delivery times, travel speeds, hours of work and employee locations. The Baltimore Sun reported this week about how the local police department is using an officer's BlackBerry tracking in the investigation of an officer accused of sexual assault. The department spent $3.5 million in stimulus money to issue the devices to its officers, and it is now using them to assess the alleged victim's claims. Some trucking companies are using the data to corroborate a driver's logbook, but others avoid using any devices that could interfere with drivers who are pressured to drive longer than allowed and then keep a "legal" log instead of an honest one. My friend David Marshall of Katz, Marshall & Banks, LLP here in Washington reports that he once used an employer's GPS tracking information to compute a client's hours of work and win an case for unpaid overtime. I can imagine this new technology creating both opportunities and risks for whistleblowers. In transportation, for example, knowing that the employer has GPS tracking information may pressure some employees to blow the whistle on supervisor pressure to drive too fast or too far. Keep in mind, the employer will own this information and may chose to use it selectively.  Workers who do what they are told without asking questions may have their violations overlooked.  Whistleblowers may be cherry picked for discipline. Unions may ask for equal access to GPS data during the investigation of grievances or in collective bargaining. Whistleblowers may seek the data in discovery to prove employer knowledge of violations, or to show disparate treatment. Some devices, including cell phones, can be active even when they are turned off. Of these, some may be disabled by removing the battery. Whistleblowers need to be familiar with the technology assigned to them and mindful of how they and their employers can use it.

• Email This
• Print
• Comments
• Trackbacks
• Share Link

Officers Donald Smalls, William James, Frazier Caudle, Nikeith Goins and Sholanda Miller worked for the Metropolitan Police Department (MPD) here in the District of Columbia. They worked for Lt. Ronald Wilkins of the First Division vice squad. In Feburary 2006, these five African-American officers filed anonymous charges of race discrimination against Lt. Wilkins.  Four days later, management announced that everyone in that squad would have to reapply for their jobs. These five who complained received new assignments in less desirable units. After an 11-day federal court trial, a jury has found that MPD management acted in retaliation.  It awarded two of the officers $250,000 each and another two $200,000 each. Spencer Hsu has released an article about the verdict in today's Washington Post. In the article, D.C. Council member Phil Mendelson raises a concern about an increasing number of whistleblower claims made in the Department.  He is also concerned that District officials are choosing to resist the retaliation claims instead of settling them. Congratulations to attorney Jennifer Klar of the Washington law firm of Relman, Dane & Colfax, for representing the officers in this victory.  The District has announced that it plans to appeal.

• Email This
• Print
• Comments
• Trackbacks
• Share Link

On the eve of former Scott Bloch’s criminal sentencing hearing, Dave Nolan hoped to send a message to President Obama; the Office of Special Counsel needs change, too. Scott Bloch is scheduled to be sentenced today, July 20^th, for withholding information from the House Oversight and Government Reform Committee about having files on his computer professionally deleted in 2006. Under the terms of Bloch’s plea, he could receive up to six months in prison and a $5,000 fine.

Photo: Dave Nolan and NWC Intern Kevin Heade

• Email This
• Print
• Comments
• Trackbacks
• Share Link

This morning the Washington Post published the first of a three-part series on “Top Secret America.” The series is a culmination of a two-year investigation into America’s post 9/11 intelligence community. I, like most Americans, knew that the intelligence community was large, but I was still shocked to see the sheer numbers of agencies, employees, facilities, and money being spent. The article explains how this mammoth bureaucracy continues to grow even though most of its inefficiencies can be traced to being too large to manage – one agency does not know what other agencies are doing.

The most disturbing part is that there is little to no accountability for these agencies. One can argue that if it is human nature that if you think no one is watching you are going to take a cookie out of the jar, then pretty soon you are going to walk away with the whole jar and not even think twice about it. The employees who have the guts to stand up and object are quickly squashed with little to no recourse. The authors of the article even point out that most officials they spoke to requested anonymity because “they feared retaliation at work for describing their concerns.” These officials were not disclosing classified information, they were simply criticizing the management of their agencies.
(Cartoon Credit: 2002 Pittsburgh Post-Gazette)

• Email This
• Print
• Comments
• Trackbacks
• Share Link

Ed O'Keefe of The Washington Post is quoting Stephen M. Kohn, Executive Director of the National Whistleblowers Center, in a story appearing on today's Fed Page. Called, "Immigration agency assailed over leak probe," the story reports on criticism the immigration service is getting from the American Federation of Government Employees (AFGE) Local 118. AFGE is upset that management at the immigration service is conducting a witch hunt for whoever leaked to The Washington Post an email about quotas for arrests of undocumented immigrants. The investigation has focused on an agent who has an Asian last name, apparently because the Washington Post reporter also has an Asian last name.

Kohn told O'Keefe that the backlash for President Obama on prosecuting whistleblowers is less than it would be since Obama is a Democrat.  "It mutes the criticism," Kohn said. Kohn also said that whistleblowers face more risk since the president has not yet appointed a Special Counsel to protect them. Rep. Darrell Issa (R-Calif) told O'Keefe that he is calling on the president to appoint top leaders for 15 inspector general offices that still lack permanent leadership. Rep. Issa's letter is available here.

O'Keefe's story also mentions other whistleblowers facing prosecution by this administration.  These include Thomas Drake who used to work for the National Security Administration (NSA).  The article also mentions concern about the Internal Revenue Service failing to issue any whistleblower rewards, but neglects to mention Bradley Birkenfeld who is still in jail after delivering to the U.S. government information that helped collect $20 billion in unpaid taxes.

• Email This
• Print
• Comments
• Trackbacks
• Share Link

Two letters to the editor printed in today's Washington Post reminded me of a meeting I attended in May of the FAA Whistleblowers Alliance. One of today's letters was from the Potomac TRACON local of the National Air Traffic Controllers Association. The other letter, by FAA Administrator Randy Babbitt, extolled the virtues of the FAA's Partnership for Safety program which seeks "to encourage employees to speak up when they see a mistake or a safety issue." He adds, "Voluntary reporting is a key element of our safety culture . . .." I am glad that we agree on the need to have employees come forward with safety issues.  I cannot help but think, though, that such programs would be more effective if all federal employees felt secure that they would be protected from retaliation. When federal employee whistleblowers have their cases limited to the Merit System Protection Board (MSPB) which rules in their favor in only 1.7% of the time, they would face a strong incentive to shut up and save their careers. To me, this is a good reason to support the House version of the Whistleblower Protection Enhancement Act (WPEA), HR 1507, to assure all federal employee whistleblowers that they can have access to our customary legal process of jury trials.

At the FAA Whistleblowers Alliance meeting, Gabe Bruno (standing in photo) spoke about regulatory capture. It is the phenomenon in which government agencies tend, over time, to align themselves with the industry they are supposed to regulate. He is a former FAA manager, and now an AIR21 expert. He was thinking about the FAA.  I think about MMS and the Gulf oil spill. Gabe Bruno also spoke about the margin of safety. He handed out the chart pictured here (follow this link for a PDF version). The point is that we have aviation regulations to keep every day operations safe, and as far away as possible from the conditions that cause disasters. This is the margin of safety.  Every time anyone violates a regulation, suppresses a maintenance need, or intimidates a whistleblower, we move one step closer to a catastrophe. Our margin of safety gets narrower. When Congress makes whistleblower protection laws stronger, we have a wider margin of safety. People have less fear of retaliation and are more likely to speak up. We might not know when or how, but over time, the wider margin of safety will save lives.  Gabe Bruno also passed out a 2008 letter from the House Transportation Committee that reveals some of the regulatory capture problem at FAA, and two of his letters to the FAA about what that agency can do now to increase our margin of safety.

• Email This
• Print
• Comments
• Trackbacks
• Share Link

Last month, CNN's Special Investigations Unit released a story about Bobby Maxwell's experience as an inspector for the U.S. Department of Interior's Minerals Management Service (MMS). The main point of the story is how MMS was infused with a "culture of corruption," and its slipshod inspections missed opportunities to prevent the Deepwater Horizon explosion. The story also mentions that Maxwell is in the fifth year of a whistleblower lawsuit against Kerr-McGee. In that case, Maxwell won a $7.5 million dollar verdict against Kerr-McGee. After a judge threw out the verdict, he appealed. In 2008, the U.S. Court of Appeals for the Tenth Circuit agreed that Maxwell had a right to pursue his fraud case and reinstated the verdict. No doubt, Maxwell's status as a wistleblower, especially a whistleblower who has won his case, empowered him to speak out about the dangers of MMS' alignment with the oil companies instead of with the environment.  No doubt, Maxwell raised his concerns years ago, but no one was listening until 11 workers lost their lives and the ecology of the Gulf of Mexico was ruined by this disaster. Maxell's story makes obvious how we would all benefit from giving our federal employees strong whistleblower protections. To me, this is the reason why our Senators must scrap the poison pills in their current version of the Whistleblower Protection Enhancement Act (WPEA), S. 372, and adopt the strong House version, HR 1507. Follow this link for more information about helping environmental whistleblowers.

• Email This
• Print
• Comments
• Trackbacks
• Share Link

I find it amazing when I look over these past seventeen years of having been involved with the National  Whistleblowers Center and the law firm of Kohn, Kohn and Colapinto that we have not moved so much further ahead in this nation with protections for whistleblowers.  In 1992 when I first approached the law firm of Kohn, Kohn, and Colapinto to represent me in my attempts to address the problems at the FBI crime lab, we were a nation in denial.  Whistleblowers had a history of being dealt with brutally.  And today the same brutality is evident in every whistleblower case the law firm and the NWC handles.  Today I look at the BP disaster in the Gulf of Mexico as countless lives and resources are destroyed and know that somewhere in that group of people who brought this disaster on our nation, there were potential whistleblowers who said to themselves that the risks of blowing the whistle on BP malpractices were just not worth the dangers to themselves and their families.  After all, this nation cares little for the rights and protections of individuals who would proactively stop such disasters.  This lack of concern is reflected in the actions of our Congressmen and Senators, some of whom have labored hard and diligently to establish whistleblower protections while most ignore obvious safeguards for our nation, our citizens and our natural resources.  If we do not wake up in the face of this, the worst environmental disaster in history created by lax standards by the British Petroleum Corporation, then we deserve what we get. 
 
In our recent attempts to strengthen whistleblower protections we have even faced almost insurmountable barriers to whistleblower protections from President Obama's staff, in fact efforts to thoroughly gut whistleblower protections by that very staff.  Present Barack Obama cannot be so blind as to believe that gutting whistleblower protections will do anything but lead to repeats in other forms of the BP environmental disaster we see going on now.  And yet, as a nation, we maintain a society where individuals who would expose serious dangers to this nation are treated as criminals. 
 
These many years later, I remain confused and saddened by this state of affairs, by the mistreatment of whistleblowers and the lack of protections for those individuals who would put the safety of this nation above the safety of themselves and their own families. In days gone by, these patriots would have been treated as heroes. Today, they are simply martyrs to lost causes. This is a shame on our nation, on our President and on our Congress.
 
Fred Whitehurst

• Email This
• Print
• Comments
• Trackbacks
• Share Link