The Plight of the Whistleblower

[John Jacobus <crispy_bird@yahoo.com>]

>From The Scientist, Volume 19, Issue 1, P 39, Jan. 17,

2005



The Plight of the Whistleblower



Vindicated or not, life is never the same for those

who disclose



By Eugene Russo 



After garnering data on the harmful effects of dust

from sewage sludge used as fertilizer on US and

Canadian farms, David Lewis, former microbiologist

with the Environmental Protection Agency (EPA), spoke

out in Nature articles.(1,2) The ensuing confrontation

with his superiors would get him terminated from the

EPA. "I never thought of myself as a whistleblower,"

he says. To Lewis, whistleblowers pointed fingers at

people who fraudulently spent government money to buy

things like private boats.



Lewis says he was willing to lose his job, but

initially he didn't think that would happen. He was

confident that the data would stand on its own merit

once published. But Lewis would soon conclude that the

protections for federal employees are less than

adequate. After termination, he continued his work at

the University of Georgia while he pleaded his case.

But following further investigations into his research

by opposing attorneys, as well as escalating legal

costs, he decided to give up his fight in November

2004. "The bottom line is that I have taken this

effort as far as humanly possible," Lewis wrote in an

E-mail to colleagues, friends, and others. "With a

wife, two children, and several attorneys to support,

I could only delay the inevitable for a little while."

Lewis says he has stopped all work on the sludge

issue. (The EPA declined to allow lawyer David

Guerrero to be interviewed for this story.)



In recent years, whistleblowers have received greater

attention. Time magazine made three whistle-blowers

its "Persons of the Year" in 2002 in honor of their

exposing scandals at Enron, the FBI, and WorldCom.

Merck's withdrawal of Vioxx and the role of FDA safety

researcher David Graham has made headlines. Testifying

before a congressional committee, Graham claimed that

his superiors pressured him to make a positive

evaluation of Vioxx. The Vioxx problem, claims Graham,

is representative of systemic flaws in the FDA's drug

oversight process, and a survey of FDA scientists

released December 16 seems to support this. Moreover,

proposed legislation now stalled in Congress could

strengthen the 1989 Whistle-blower Protection Act by

reversing court decisions that had weakened the law by

restricting its application.



Despite the attention, and laws such as the No Fear

Act passed in 2002, whistleblowers still face tough

obstacles, says Billie Garde, a Washington, DC, lawyer

who represents private-sector whistleblowers in the

environmental, nuclear, and chemical sciences. "Though

some of the processes have changed slightly ...

messengers who have unpopular messages still tend to

get shot down," says Garde. The No Fear Act requires

that agencies report annually on their number of

whistleblowers and discrimination cases, and that

agencies pay any judgments for whistleblowers out of

their own budgets.



"There's a myth about whistle blowing," says Richard

Condit, general counsel for the Public Employees for

Environmental Responsibility (PEER), a Washington,

DC-based alliance of local, state, and federal

resource professionals that assists whistleblowers.

People think that if "you've really got the goods on

the folks that are doing wrong, that whistle blowing

of that nature almost always succeeds." Despite such

sentiments being widely popularized in books and

movies, this is not true, says Condit. Occasionally

there are easy settlements, but typically, the

whistleblowers he deals with are "brutalized the

entire way."



THE SCIENTIST AS WHISTLE-BLOWER Whistle blowing

scientists face particular challenges. Often the

issues they raise are outside the purview of the

Whistle-blower Protection Act, according to PEER

executive director Jeff Ruch. That act, originally

outlined in the 1978 Civil Service Reform Act and

updated in 1994, covers cases of reported waste,

fraud, or abuse of authority, as well as violations

that pose an imminent threat to public health and

safety. Such standards may not pertain to a scientist

who claims that results are being suppressed, a

methodology has been skewed, or inferior data are

being used. "It's almost treated as if it were a

policy dispute, unless you're talking about something

extreme like falsification," says Ruch. "Trying to fit

scientists' concerns into the whistleblower protection

box is very much like a round peg in a square hole."



Some whistleblowers are, however, protected by

legislation such as the Clean Air Act and Clean Water

Act, which contain statutes covering whistleblower

disclosures that promote the enforcement or

implementation of the law. Such complaints can be

filed with the Department of Labor. Many other laws,

such as the Endangered Species Act, have no similar

provisions.



Federal employees can file a complaint through the US

Merit Systems Protection Board and the Office of the

Special Counsel (OSC), although Ruch says the OSC has

been ineffective and inefficient. "We are working

through that backlog," counters an OSC spokesperson,

who says that case numbers have gone up due to greater

awareness of the OSC. "It's easy to eliminate a

backlog if you just dismiss the cases," says Ruch,

adding that just 1% of the 1,091 disclosures reported

in fiscal year 2003 were referred for investigation.



National Institutes of Health extramural grantees

typically go through their university's "research

integrity officer" and/or the US Department of Health

and Human Services' Office of Research Integrity

(ORI). Eighty percent of ORI's cases come from

whistle-blowers, typically cases of fabrication,

falsification, and plagiarism. For example, a

researcher may claim that published data are

inconsistent with data actually collected as part of a

research project, or that data included in a grant

application are inaccurate. In the wake of the Enron

scandal, private-sector employees, including

researchers, have much better free-speech rights than

government employees, according to Tom Devine, the

legal director of the nonprofit Washington, DC-based

Government Accountability Project.



Often, scientists raise issues that are the subject of

professional debate, which can complicate cases. "It's

very easy to say that a particular scientist is

overreaching in his concern about a potential

catastrophe, when it's all just kind of professional

differences of opinion," says Garde. A specific

problem, such as a nonworking valve at a chemical

plant, is much simpler to assess than conceptual

ideas. Problems based on conceptual ideas can enable a

federal science agency to repress unwanted findings,

argues Condit. According to former US Fish and

Wildlife Service (USFWS) employee Andrew Eller, his is

one such case. He helped administer the Endangered

Species Act at the USFWS, determining threats to the

Florida panther. Eller coauthored an article in March

2004 that evaluated influences on panther habitat.3 In

May 2004 he filed a Data Quality Act complaint against

the USFWS, charging that the agency knowingly used and

disseminated faulty scientific data to set Endangered

Species Act policy. He was terminated in November

2004. Eller is currently appealing with the Merit

Systems Protection Board. "I didn't think I'd lose my

job," he says, adding that it took him two years to

speak out.



A spokesperson for the USFWS declined to comment on

the case. According to Eller's termination letter,

which he posted on the PEER website, he was removed

from his job because of "unsatisfactory performance."



BAD FAITH, GOOD FAITH Eller and Lewis' cases follow a

common pattern: An employee files a complaint, which

is ignored or rejected, and then the employee

continues to express discontent. Soon after, the

whistleblower employee is reprimanded for failure to

fulfill job duties or for being inefficient or

ineffective. Depending on who is asked, either the

whistleblower's job performance has slipped, or

management has discovered a way to push the employee

out.



Lewis calls for better disciplinary measures against

managers who unjustifiably penalize subordinates.

Garde believes managers should also be educated about

anti-retaliation measures, what they mean in practice,

and how to respond to workers who raise public health-

or safety-related concerns.



One common worry, however, is that stiff penalties and

strict laws will lead to bad-faith complaints that

paralyze federal agencies, including science agencies.

For example, an individual cited for poor performance

might make a spurious complaint to delay dismissal.

Margaret Dale, director of the Office for Research

Issues at Harvard Medical School, says she's seen

little evidence for a floodgate effect. More common,

she says, is miscommunication or sloppy research that

is reported by lab mates who think they are witnessing

fraud.



Garde emphasizes, though, that motives are irrelevant

according to the law. "You don't have to prove you're

right, and you don't have to prove you had good

faith," she says. "And you don't have to prove you're

as pure as the driven snow and never had a performance

problem." Workers aware of safety concerns, Garde

notes, should not have to choose between raising that

concern and protecting themselves.



Even if vindicated, the whistleblower may have

difficulty returning to the job. Students and postdocs

may need to find new mentors or different labs, says

Dale. If a whistleblower is on the verge of winning a

case, companies or federal agencies sometimes provide

financial incentives to encourage the whistleblower to

move on, says Condit. Lewis was not offered such a

deal. Instead, he's shifted gears, starting work on a

prospective epidemiological study related to hepatitis

C cross-infection via medical instruments.



Whistleblowers often say they want their lives back,

says Garde. "I tell them your life is never going to

be the same. ... You're going to have a different kind

of life after this kind of case." Looking back, Lewis

says he has few regrets about his actions, despite the

consequences. "I went into environmental science and

public-health issues as a public servant," he says.

"There's nothing I'd change now if given the chance."



References 

1. DL Lewis  "EPA science: casualty of election

politics," Nature 1996,  381: 731-2. [Publisher Full

Text]  



2. DL Lewis et al,  "Influence of environmental

changes on degradation of chiral pollutants in soils,"

Nature 1999,  401: 898-901. [PubMed

Abstract][Publisher Full Text] 



3. EJ Comiskey et al,  "Evaluating impacts to Florida

panther habitat: How porous is the umbrella?"

Southeastern Naturalist 2004,  3: 51-74.  



 

 





=====

+++++++++++++++++++

"It doesn't matter whether you're riding an elephant or a donkey if you're going in the wrong direction."

Jesse Jackson





-- John

John Jacobus, MS

Certified Health Physicist

e-mail:  crispy_bird@yahoo.com





		

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