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A TEXTBOOK FOR WHISTLE-BLOWERS
As corporate power grows without limit, governments at all levels are abandoning their responsibility to enforce laws. Instead, they are relying on "voluntary compliance" by corporations. Under these circumstances, the role of whistle-blowers assumes increased importance; often they are the public's only protection against dangerous violations of law. Whistle-blowers are "insiders" in private firms and government agencies who dare to speak out against waste, fraud, abuse and threats to public health, often at great personal risk.
Here are a few recent examples of whistle-blowers:
** In August, 2000, 40 members of the Los Angeles Police Department sued in court alleging that their superiors enforced a "code of silence" among police officers by punishing whistle-blowers who reported police misconduct.
** In October, 1994, a 20-year career federal safety inspector, Steve Jones, was fired for reporting more than 500 safety violations at a chemical weapons incinerator operated by a private contractor at Utah's Tooele Army Depot. Taylor said the contractor (his employer) had ignored and covered up releases of toxic nerve gas that put workers in immediate danger.
** In November, 1998, employees of private health care firms blew the whistle on a scheme by over 200 hospitals to bilk the federal Medicare program out of billions of dollars by filing false expense reports over a 14-year period.
** In 1996, EPA (U.S. Environmental Protection Agency) biologist Dr. David Lewis was silenced by his EPA supervisors when he warned that sewage sludge approved by EPA for use on farm land is a threat to human health because it is contaminated with dangerous pathogens including E. coli, salmonella, and the hepatitis virus.
These are only a few examples of whistle-blowers protecting the public interest.
This week we have whistle-blower William Sanjour a long-time employee of U.S. Environmental Protection Agency reviewing a new book written for whistle-blowers and their lawyers by Steven Kohn, founder of the National Whistleblower Center in Washington, D.C. --Peter Montague
A Textbook for Whistle-blowers
by William Sanjour
Anyone who has blown the whistle on corporate or government waste fraud or abuse, or is contemplating blowing the whistle or any activist or union organization which encourages or advises whistle-blowers needs to know the laws governing the protection of whistle-blowers. And there are plenty of laws; good laws, strong laws, enforceable laws. But there are also plenty of flaws and pitfalls to undo the unprepared.
Steve Kohn is the nation's outstanding whistle-blower lawyer and he's written a first-rate book on the state and federal whistle-blower protection laws. His book is written mainly for attorneys but it offers guidelines for laymen to avoid the flaws and pitfalls and take advantage of the protection afforded by the laws.
In my own experience there are several misconceptions of the law which prevent would-be environmental whistle-blowers from taking action, or from choosing the best action, or which prevent whistle-blowers from seeking legal protection from retaliation.
The first misconception is the fear that they would not be able to prove that an adverse action taken against them by their employer was indeed retaliation for blowing the whistle. Short of firing, retaliation against a whistle-blower usually takes the form of harassment such as transfer to a dead-end position or reassignment to a hostile work environment. Management usually gives a rational-sounding explanation for these actions (e.g., the worker's performance has fallen below par or the needs of the organization require the whistleblower's transfer), so whistle-blowers often think that the burden of proof is on them to show that the action is harassment in retaliation for the whistle-blowing activity. Often whistleblowers are cowed by the enormity of the burden. In fact, under most circumstances, that burden hardly exists. Kohn cites, for example, a decision from the U.S. Court of Appeals for the Seventh Circuit.
"[T]he plaintiff, on the one hand, can make out a prima facie case of retaliation, and shift the burden of persuasion to the defendant, with circumstantial evidence that her disclosure was a contributing (not necessarily a substantial or motivating) factor in the adverse personnel action taken against her; and the defendant, once the burden has shifted, must prove not merely by a preponderance but by clear and convincing evidence that it would have taken the same action against the plaintiff even in the absence of her protected disclosure."
By keeping good records an employee can establish evidence of discriminatory motives on the part of the employer and thereby shift the burden. Kohn cites 32 examples (pgs. 268-270) of factors, which have been successfully used. A few of these are:
** high work performance rating prior to engaging in protected activity, and low rating or "problems" thereafter;
** discipline, transfer, or termination shortly after the employee engaged in protected activity;
** change in attitude of management before and after employee engaged in protected activity, and attitude of supervisors toward whistle-blowers;
** absence of previous complaints against employee;
** differences between the way the complainant and other employees were treated;
** absence of warning before termination or transfer;
** willingness to deviate from established procedure;
** contradictions in an employer's explanation of the purported reasons for the adverse action.
This misconception about the burden of proof is often shared by the employer as well. Frequently employers arrogantly believe they can do anything they want to punish or silence a whistle-blower just by inventing reasonable-sounding excuses for doing so. This can work to the advantage of the whistle-blower if he or she understands the law.
The whistle-blower can even get the employer to incriminate himself if he knows the law and the employer does not. For example, when I was transferred to a meaningless position shortly after blowing the whistle on EPA's decimation of the hazardous waste regulations, my boss called me into his office to explain his rationalization for my transfer. I recognized that the reasons he gave me were contrary to EPA rules but I kept quiet and let him talk. After the meeting I sent him a memorandum politely summarizing his comments and he returned it with a few minor corrections. This document later became the basis of my successful challenge to the transfer. In all but 7 states it is also legal to tape record conversations with your boss without your boss knowing it.
The second misconception is the uncertainty of a whistleblower or would be whistle-blower that the act that he is concerned about may not actually be illegal. After all, environmental law is a very convoluted and tricky business, perhaps intentionally so. For example an employee may be witness to the fact that his company is dumping toxic waste into a municipal landfill. His efforts to get the company to stop the practice are futile. His management assures him that the waste is not "technically" a hazardous waste because of loopholes in the EPA regulations. He doesn't know if that's true, but regardless, he believes that the practice is dangerous. He would like to blow the whistle on the dumping but he doesn't know if he'd be legally protected against retaliation if the dumping is lawful or if the company can convince the authorities that the dumping is harmless. Kohn points out he needn't be concerned.
"Under most whistleblower protection laws, an employee is under no obligation to demonstrate the validity of his or her substantive allegations. Although the safety or legal concern that resulted in the initial whistleblower disclosure need only be based on a good faith belief that an actual violation occurred, this 'good faith' belief must be based on 'reasonably perceived violations' of the applicable law or regulations. Employees are under no duty to demonstrate the underlying veracity or accuracy of their safety allegations."
A third misconception, perhaps brought about by movies such as SILKWOOD, is that retaliation has to be overt and severe before the whistle-blower can hope for any protection under the law. In fact the courts have recognized many lesser forms of retaliatory action.
"Under the nuclear, trucking, and environmental whistleblower laws, the DOL [Department of Labor] has 'broadly construed' the definition of adverse action to 'prevent the intimidation of workers through retaliation.' Various employer practices have been held to be illegal discrimination, including the elimination of a position, causing embarrassment and humiliation, transfers, and demotions; 'constructive discharge' (or making working conditions so difficult as to force a resignation); blacklisting; issuance of a disciplinary letter; a reassignment to a less desirable position (even with no loss of salary or grade); negative comments in an evaluation; a retaliatory order to undergo a psychological 'fitness for duty' examination; .... denial of promotion; threats; .... transfer to a position where employee could not perform supervisory duties; circulation of 'bad paper' comments and other forms of 'bad mouthing;' moving an office and denying parking and access privileges;..." and many, many other negative actions by employers.
However, none of this should lead to complacency. There are many pitfalls. If the courts are generous to whistle-blowers in applying the rules of evidence, they are very fussy about procedures. The U.S. Supreme Court is not the only court where deadlines are more important than justice. Kohn explains:
"One major weakness in many statutory whistleblower protection laws is the short statute of limitations..... Failure to comply with the statute of limitations is a common defense [by employers] in whistleblower cases, and the statute is generally held to start running at the time that an employee learns that he or she will be retaliated against, not on the last day of employment."
In most cases the statute of limitations is only 30 days. In other words, if a whistle-blower feels an adverse action has been taken against him, he must file a complaint with the appropriate authority within 30 days. Very often if the adverse action is something as amorphous as an unjust criticism or a change in work pattern it may take a while for the whistleblower to even recognize that it was an adverse action and an even longer time to seek counsel and file the correct papers with the appropriate authority.
Federal employees are protected by many laws, the strongest of which are seven environmental and nuclear laws. However another pitfall for the unwary civil servant is to seek redress instead under the mislabeled federal Whistleblower Protection Act. In the experience of many whistle-blowers, including myself, this act and the Merit System Protection Board it created exist more for the protection of the government. Thus a whistle-blower must carefully choose the law under which to file a complaint.
My personal advice to any whistle-blower is to make sure his or her lawyer has a copy of Kohn's book and has read it.
GLOBAL WARMING OPPORTUNITY
During November, while Americans were preoccupied by questions of rigged elections, representatives of 170 countries met in The Hague, Netherlands, to tackle what is arguably the biggest environmental problem we face -- global warming. The meeting at The Hague was supposed to fill in the blanks of the Kyoto Protocol, a 1997 international treaty intended to combat global warming by ensuring that countries limit their emissions of carbon dioxide and other greenhouse gases, chiefly by reducing the combustion of coal, oil and gasoline (so-called "fossil fuels"). Many scientists consider global warming the biggest environmental problem of the 21st century because they expect it to change weather patterns, spread serious diseases like malaria and dengue fever, and cause droughts, floods, large storms, and major shifts in water supplies.
The goal at The Hague was to spell out how each country would curb greenhouse gas emissions to comply with limits established at Kyoto in 1997. Instead, negotiators left The Hague after two weeks with no agreement. The negotiations collapsed largely because of efforts by the U.S. negotiators to get emission reduction "credits" for existing vegetation, such as trees or crops growing within U.S. borders.
Trees and other plants remove carbon dioxide from the air and store it in their tissues. Negotiators refer to them as "carbon sinks" -- places where carbon is stored in solid form after it is pulled from the atmosphere. The U.S. negotiators wanted credit for vegetation "sinks," as a way of minimizing the need to change how we use energy in the U.S. The U.S. is the world's largest emitter of carbon dioxide from fossil fuels. And our energy use is notably inefficient; for example, we emit about twice as much carbon dioxide per person as Germany does.
U.S. negotiators insist that curbing the use of fossil fuels will hurt the U.S. economy. But a new study challenges that premise, showing in detail how we could reduce U.S. carbon dioxide emissions by increasing the efficiency of our economy.
Fossil fuel companies have worked relentlessly to convince the American public that global warming is a Chicken Little fantasy. The insurance industry, on the other hand, knows that global warming is real because hurricanes, cyclones, and floods between 1990 and 1995 cost the industry about fifteen times as much as such events had cost in the 1980s. Recently even a few oil companies have decided to come clean. British Petroleum and Shell Oil, for example, have now withdrawn from the Global Climate Coalition, an industry group that tries to dismiss the science on global warming.
As opportunities to misrepresent the science diminish, opponents of precautionary action have stirred economic fears, arguing that curbing greenhouse gases will create economic disaster. But according to a new study funded by the U.S. Department of Energy and carried out by five U.S. national laboratories, the opposite is true. The study, SCENARIOS FOR A CLEAN ENERGY FUTURE (CEF), shows how energy use could be reduced in each of four broad economic sectors -- buildings, industry, transportation, and electricity -- and concludes that it would help, not hurt, our economy to make the needed changes.
For each sector, the CEF study examines "market barriers" that limit our incentives, or our ability, to use energy efficiently. For example, in the "buildings" sector, which includes household appliances, they note that:
** Electricity bills do not give any details: we cannot see how much we are paying to run a refrigerator or a TV set. The authors liken this to a grocery store where customers receive a total bill at the checkout counter, but never see the prices of individual foods.
** Switching to an energy-efficient appliance will produce only small savings for an individual family. For example, reducing the standby power of a TV set from 7 watts to less than one watt would save about $5 per year per TV. As a result, most people won't put much effort into finding an energy-efficient TV. But if all TVs in the country used less than one watt of standby power, "the total savings would be hundreds of millions of dollars per year."
** Another market barrier is called "split incentives": the person buying the equipment is not the person who will pay to run it. For example, a landlord might buy an inefficient furnace, letting the tenants pay the high heating bills that result.
One of the important functions of government is to compensate for market barriers. For example, the U.S Environmental Protection Agency (EPA) and the U.S. Department of Energy (DOE) jointly run the Energy Star program, which labels appliances according to their energy efficiency. This system helps consumers see at a glance how much money an energy-efficient refrigerator or furnace will save them during a year. And the government can help overcome the "split incentives" problem by setting minimum standards for efficiency in equipment such as water heaters. According to the CEF study, there is enormous opportunity to achieve efficiencies by such means.
In the transportation sector, the government could promote investment in alternative fuels; improve air traffic control to reduce the time airplanes spend circling airports; and create "pay-at-the-pump" automobile insurance, giving car owners the opportunity to save on insurance by driving less.
Some economists say opportunities to save both energy and money must be fiction: if they were real, people would already be doing them. Pointing out such opportunities, they say, is like claiming there is a $20 bill lying on the sidewalk. If it were there, someone would have picked it up long ago. But as one commentator points out, the appropriate metaphor is not a $20 bill lying on the sidewalk but $20 worth of pennies hidden in the sand. Nobody wants to sift through sand for a few pennies. But if you make it easy by giving people a metal detector, they will happily gather up the pennies. The "metal detector" represents the reforms we can make in energy markets to help people save both energy and money.
The CEF study considers three main categories of economic reforms:
1. Increasing government research and development (R&D) for technologies to reduce energy consumption.
2. Government projects to correct economic barriers to efficient energy use -- like the Energy Star program to help consumers choose more cost-effective home appliances.
3. Taxing carbon dioxide emissions to motivate people to save energy. The authors propose such a tax in the form of emissions permits the government would sell at auction each year.
Using varying combinations of these policies, the authors explore 3 possible scenarios for future energy use: Business as Usual, Moderate, and Advanced. Under Business as Usual, current energy policies continue more or less unchanged, with a "modest pace of technological progress." In the Moderate scenario, some reforms occur; and in the Advanced scenario "a nationwide sense of urgency" motivates deeper reforms.
By the year 2020, the Moderate scenario sees emissions reduced by 9% to 10% compared with Business as Usual, and the country's energy bill is 14% lower. The Advanced scenario sees emissions 23% to 32% lower and the energy bill 18% to 22% lower than the Business as Usual forecast. In other words, even taking into account the administrative costs of programs like Energy Star, plus increased costs for research and development, the country still saves money. And the gains calculated in the CEF study are ONLY energy cost savings. They do not include other advantages of more rational energy use, such as improved health from cleaner air and reduced dependence on foreign oil.
To be cautious, the authors say some of the gains they describe might be offset by "indirect" losses in other parts of the economy, which they do not model in detail. Indirect losses could conceivably equal direct gains, so instead of making a profit, we might simply come out even.[5, pgs. 1.40-1.41] O n the other hand, a recent analysis of the CEF scenarios by the International Project for Sustainable Energy Paths (IPSEP) concludes that when we factor in broader economic patterns, the potential gains look substantially larger, not smaller.
The CEF scenarios are not designed to get the U.S. all the way to its Kyoto target of reducing emissions to 7% below 1990 levels by the period 2008 to 2012. But they make it clear that for every day we delay taking steps toward that target, we are losing money.
One way to save a bundle would be to stop subsidizing the fossil fuel industry. A report by Friends of the Earth (FoE) points out that taxpayers currently provide billions of dollars worth of unnecessary support to polluting industries each year.[7] This money could be given back to taxpayers, or redirected to support clean energy projects and job training for workers leaving the coal industry.
When U.S. negotiators try to delay U.S. actions to reduce emissions, they are not protecting the U.S. economy as a whole; they are protecting a small group of our dirtiest industries. Given the strong personal ties of both George W. Bush and Dick Cheney to the oil industry, the U.S. role in follow-up meetings, expected in May or June, could be even more obstructionist. We shouldn't let our representatives get away with protecting oil and coal companies at the expense of the rest of the economy, not to mention the planet.
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