Blowing the Whistle

0n January 28, 1986, schoolchildren across the United States watched in horror as the space shuttle Challenger - with teacher Christa McAuliffe and six crew members aboard - erupted into a ball of fire.

What began as a political gesture by President Reagan, disintegrated into a national tragedy. The hope, meaning and identification that McAuliffe's participation in the space program was supposed to instill were abandoned.

In the weeks after the Challenger disaster, amidst a presidential commission and a congressional investigation, the facts behind the explosion quickly came to light and with them the real lesson of the shuttle disaster: the importance and plight of the whistleblower.

Testifying before the Rogers Commission - President Reagan's special commission to investigate the shuttle disaster - engineers from Morton Thiokol, the company that designed and manufactured the Challenger's solid rocket booster, said they had questioned the decision to launch because of their concern about the cold weather and potential O-ring problems. They testified that on the eve of the launch, they had argued with their own superiors and NASA officials to postpone the launch. The seven Challenger crew members were never told of the Thiokol engineers' concerns.

After their disturbing testimony to the Rogers Commission, the engineers returned to their jobs and were quickly demoted and transferred by Morton Thiokol officials. Only after intervention from the chairman of the Rogers Commission were they restored to their former positions.

The revelations about intimidation and harassment experienced by those who opposed the ill-fated launch delivered an unmistakable message: Employees do not have the freedom to dissent or to blow the whistle on unsafe products, processes or procedures.

Although whistleblowers are too diverse politically, too few in number, and too poor to have a lobby, there is growing political support for their protection.

In carrying out their Executive Branch oversight functions, members of Congress have for years enjoyed the benefits of the knowledge, information, and documents supplied by whistleblowers.

Pentagon cost analyst Ernest Fitzgerald first alerted Congress to the fact that the military's fleet of C5A cargo planes were $2 billion over budget. Food and Drug Administration scientist Anthony Morris was the first to go public with his concerns about the health effects of Swine Flu inoculations. Philip Vargas of the Paperwork Commission reported to Congress that the secrecy classification system was allowing the government to withhold thousands of documents that were not secret. And, Richard Parks told Congress about serious safety problems in the Three Mile Island cleanup operation that led the Nuclear Regulatory Commission to halt and then revamp the entire cleanup process.

In each of these cases, however, as in the cases of the space shuttle engineers, the whistleblower suffered severe consequences.

"There is no dispute, whistleblowers have no protection," says Rep. Patricia Schroeder, D-Colo., who recently introduced H.R. 1716, The Contractor Whistleblower Protection Act. "We urge them to come forward, we hail them as the salvation of our budget trauma, and we promise them their place in heaven. But we let them be eaten alive," she said.

To ensure that such whistleblowers continue to come forward, Schroeder and others have attempted to strengthen measures guarding against employer retaliation.

Last fall, the House voted without opposition to redress eight years of promised whistleblower protection by strengthening inadequate civil service laws. The effort was stymied by the Reagan administration when the White House persuaded Sen. Ted Stevens, R-Alaska, to kill the bill in the Senate Governmental Affairs Committee.

In the Civil Service Reform Act of 1978, Congress reformed the civil service system to make it easier to fire government employees, but aupposedly more difficult to terminate whistleblowers. Instead, it has become easier to fire all government workers, including whistleblowers.

The Merit Systems Protection Board (MSPB), the adjudicative arm of the federal personnel bureaucracy, has ruled in favor of the whistleblower defense only four times in eight years. And the agency has established a whole series of precedents that undermine the whistleblower defense and strengthen the government's position vis-a-vis the whistleblower. Today, it would take a manager's bald confession or an equivalent "smoking gun" memorandum for a whistleblower to prevail in all but the rarest circumstances.

In a decision handed down in May 1986, the Board significantly reinterpreted the major Supreme Court case on public employee rights under the First Amendment. The Board ruled that once whistleblowers prove illegal retaliation, they can still be fired as long as the agency "could have" fired them anyway. The U.S. Supreme Court had ruled that employees could only be discharged if the employee "would have" been fired anyway. The difference between MSPB's "could" and the Supreme Court's "would" is fundamental. The "could" interpretation invites employers to spy on whistleblowers and build a dossier of reasons, albeit after the fact, to sustain a firing in the event that an administrative law tribunal finds the original firing without grounds.

The 1978 Civil Service Reform Act also created the Office of Special Counsel (OSC) - an office mandated to protect whistleblowers from reprisal and prosecute managers for retaliation. Under former President Carter the Office languished with no permanent head, funding, or White House support. The OSC nevertheless held its own through major bureaucratic turf wars.

When Reagan came to power he quickly gutted the Office of Special Counsel. Within 14 months of the appointment of

Alex Kozinski to head the OSC, nearly half of the office personnel and 70 percent of attorneys and investigators at the office's headquarters were fired or had resigned. No other agency in government was purged as quickly or completely.

Since that time, 7,000 federal employees have sought assistance from the OSC. The OSC has filed for a hearing to restore jobs on only two occasions. Every time the OSC has attempted to discipline managers for allegedly discriminating against whistleblowers the prosecutions were thrown out by the MSPB or at the federal court level.

The OSC has aggressively pursued only one of its duties - prosecuting federal employees who wrongfully engage in political activity. For all practical purposes, the OSC has limited its prosecution to union leaders and political adversaries. Most of these prosecutions have likewise failed or been reversed.

Because of the growing reaction to OSC inaction, hostility to its intended mission, and ineffectiveness, Senators Carl Levin, D-Mich., Charles Grassley, R-Iowa, and David Pryor, D-Arkansas, and Representatives Schroeder, and Frank Horton, R-N.Y., have spearheaded new reform efforts. These reforms would clarify the role of the Special Counsel as a protector of whistleblowers, not protector of "the merit system."

"The OSC has failed to meet its congressional mandate," said Sen. Levin on February 5 when he introduced the Whistleblower Protection Act of 1987. "It has not protected employees who have been the victims of unfair personnel practices, and its failure to do so is a key reason why federal employees remain afraid to blow the whistle."

The proposed changes would allow federal employees to take their grievances to court themselves, rather than force them to rely on the government for help. The proposals would also lessen the burden of proof required for whistleblowers attempting to show discrimination.

As for non-government employees, in the late 1970s and early 1980s, Congress passed over a dozen statutes to protect private sector employees who disclose public or worker health and safety dangers as well as environmental hazards. The purpose of these laws is to ensure that workers will bring unlawful or hazardous workplace situations to public attention.

The patchwork remedies promoted by federal statutes are not widely enforced because each statute has different time limitations, methods of enforcement and procedures, and workers are often unaware of their existence.

The most notable drawback of the current laws protecting whistleblowers is a 30-day limitation on filing a complaint alleging retaliation. The time period begins the moment the employee learns of the retaliation. Among the few exceptions to that rigid rule are instances when employees have tried to file a complaint at the Department of Labor, but were mistakenly referred elsewhere.

For protection under the environmental whistleblower statutes, employees must engage in specific types of protected activity. Although arbitrary, geography is also important because in some areas of the country the federal courts have mandated that whistleblowing be directed to specific government agencies while in other areas the courts have interpreted the same statutes to protect dissent within corporate channels as well. Likewise, in certain states these inadequate statutes have been interpreted to give the federal government preemption, thus providing no remedy even under state law for employees who miss the 30-day statute of limitations.

In another aftermath of the Challenger debacle, Congress has begun to focus on the need to provide legal protection for employees of government contractors. The first such bill to pass was attached to the Defense Authorization Act and enacted in 1986. Although largely symbolic, it provides some protection for whistleblowers who work for defense contractors. A more comprehensive bill for all government contractors is now pending before Congress.

The most important protection for whistleblowers is growing out of the state court systems. Most states have abolished or restricted the employment-at-will doctrine: instead of allowing private employers to arbitrarily fire employees, courts have recognized the rights of employees by declaring certain "public policy exceptions." Whistleblowing is the primary exception recognized by the courts. Thus whistleblowing employees who are wrongfully discharged may take civil action against their employer and are entitled to a jury trial and may be awarded punitive damages.

Some state legislatures have enacted whistleblower protection statutes as a challenge to the employment-at-will doctrine. But in an ironic twist, in a few such states those statutes now act as limitations on whistleblower protections which might have evolved had the courts themselves fashioned the remedy from the common law. A few state courts have ruled that having filed a Department of Labor complaint, a whistleblower is precluded from filing a state civil lawsuit even though that latter avenue would have provided a far more comprehensive remedy.

In the final analysis, the evolution of legal protections for whistleblowers has led to a morass of contradictory, inadequate and arbitrary results. Employers have seized upon otherwise progressive federal and state legislation as a way to limit the revolutionary development of state wrongful discharge civil law. Additionally, the patchwork of various little-known whistleblower protections available in environmental and public health and safety laws has left most employees without effective protection because of the various limitations imposed by Congress and the federal and state courts. Far more helpful for private and public whistleblowers would be an omnibus federal law that would codify appropriate state common law and that would protect all employees who blow the whistle on violations of federal law.

Louis Clark is the executive director of the Government Accountability Project, a Washington-based public interest watchdog group that assists and represents government and corporate whistleblowers.