Notes

“No government is safe from leaks; no society is safe without them.”
Chester Walsh, a former employee at GE Aircraft Engine, a division of General Electric Company, gathered information for four years to expose a defense contract fraud at the company. Senior company executives and an Israeli general were accused of a scheme to divert U.S. funds in connection with a contract involving Israel's purchase of GE jet engines. Last year, a federal judge awarded Walsh $11.5 million under provisions of the False Claims Act, a federal statute permitting employees to sue their employers on behalf of the government and to collect as much as a quarter of the assessments and fines. During the tortuous legal process, Walsh was vilified as an employee just out for the money.

Allan McDonald and Roger Boisjoly, engineers at Morton Thiokol Inc. , testified before the Rogers Commission investigating the 1986 Challenger shuttle disaster that there had been ongoing problems with the rocket' s O-rings and that they had urged their supervisors and NASA officials to postpone the fatal launch. Following their testimony, the engineers were demoted to menial jobs. Only the intervention of the Commission members got them reinstated.

Billie Garde, a Census Bureau employee in Oklahoma in 1980 and a single mother of two, was ordered by her supervisor to misrepresent civil- service test scores so he could hire incompetents. Garde, a former schoolteacher, also was directed to recruit female ex-students as sex partners for visiting political officials. When she refused and blew the whistle, her manager fired her and helped her ex-husband win custody of the children. Garde eventually regained custody with the help of whistleblower advocates. She attended law school and now, as a Houston attorney, represents whistleblowers.

Last year, an administrative law judge for the U.S. Labor Department found that managers at the Oak Ridge National Laboratory had retaliated against a technician who had expressed concern about radiation exposure there. The worker, Charles D. Varnadore, had undergone colon cancer surgery in 1989 and had subsequently appeared on television to voice distress about the prevalence of cancer among his colleagues and the lax protection against radiation. His supervisors transferred Varnadore to a room full of toxic and radioactive substances and gave him useless work. Martin Marietta Energy Systems, which runs the lab for the U. S. Department of Energy, was ordered to pay Varnadore damages, the amount to be set by Labor Secretary Robert B. Reich.

A. Ernest Fitzgerald, an Air Force financial analyst, battled the military because of its wasteful practices during several administrations. President Nixon fired Fitzgerald in 1969 after he exposed a $2 billion overrun in an Air Force contract. (Fitzgerald was reinstated by court order, but it took him until 1982 to be restored to his old job.) He was the kind of civil servant the Pentagon loved to hate: He testified before Congress about $7 claw hammers costing $436 and 25-cent washers purchased for $693 each.

Why is this happening?

There are many reasons why agencies find criminal referrals more attractive than retaliatory job actions (demotion, suspension, etc). Just some include:

Criminal investigations are cheaper and easier than retaliatory job actions. It takes an army of attorneys and witnesses – plus depositions, briefs and hearings – to fire an employee. All it takes for a criminal witch-hunt is a sole investigator willing to act as a bully.

Criminal investigations are risk free to the agencies, whereas retaliatory job actions may be found to violate federal protected personnel practices (PPPs). If a bogus, unfounded criminal investigation turns up nothing – or refers a whistleblower who is ultimately vindicated – there is no consequence for managers who have committed reprisal. The investigation simply closes. Managers taking actions against truth-telling employees through retaliatory job actions can be found to have violated PPPs, at which point the manager would have to defend their actions during an administrative hearing.

Criminal investigations can essentially be perpetual, serving as a never-ending nightmare for whistleblowers. When one investigation uncovers no wrongdoing and is closed (typically only after being open for an elongated period), another retaliatory investigation can be opened the next day for a stated discrete reason, when in actuality each action is in response to whistleblowing. An employee operating under a continual cloud of investigation can find it impossible to change positions if they wish to leave the agency.

Criminal investigations and prosecutions are far more effective at isolating the first whistleblower on a given issue – terrorizing coworkers into silence – compared to retaliatory job actions.
Because of these reasons, the face of whistleblower retaliation is evolving from firings to criminal investigations and prosecutions. It's unjustifiable, and it shouldn't be allowed.

What can be done?

GAP seeks to right this horrific wrong. As the nation's leading whistleblower protection and advocacy organization, we've launched a campaign to stop this travesty to both justice and institutional accountability. While most of these retaliatory criminal investigations find no wrongdoing by the whistleblower (only after long, terrifying and costly trial waiting periods), the chilling effect emanating from such a heinous action is very real. All employees understand the message, and what speaking out may lead to – the threat of jail. In effect, fewer corrupt activities are brought into the spotlight.

It's time to put an end to this devious tactic.

From Firings to Criminal Referrals:
The Changing Face of Whistleblower Retaliation

With the help of members of Congress and the public, we can solve this problem. Through legislative action, we seek to do whatever we can to enact a bill that:

Makes it illegal for the Offices of Inspectors General, or other agency investigatory bodies, to conduct investigations into federal whistleblowers' actions that are explicitly protected by federal whistleblower statutes or regulations. Essentially, this law puts the onus on the investigatory body to preliminarily confirm that it is not participating in a retaliatory campaign.

Provides legal protections to whistleblowers if the case reaches a court. Since such investigations often occur without the whistleblower’s knowledge, if such a case were to proceed illegally or be referred to law enforcement, and result in charges being issued, these new protections would provide the whistleblower with an affirmative defense to challenge the charges.

Hold accountable the managers who refer their whistleblowing employees to IGs or investigatory bodies for such protected whistleblower activities.
GAP is seeking coalition partners for this ambitious effort. We've already been graced with the partnership of Brave New Foundation. We're currently discussing the campaign with key bipartisan lawmakers on Capitol Hill who value accountability as much as we do.

I don’t know what he deserves, but we deserve—to his credit—to be able to find out and debate the secrets of our national security complex. And that particularly includes private companies like Booz Allen Hamilton and Blackwater and all the other private armies and intelligence firms doing the dirty work of the American military. Those “contractors”—our Hessians—- are actually fighting our wars, killing our “enemies,” spending our money and are unaccountable.

Good man or bad, crazy or sane, Edward Snowden may be our best chance to find out something, probably only a little, about what these firms are actually doing in the name of We, the people.

Woodford, 51, recounted how he had just returned from Hong Kong, having fled Tokyo after a board meeting in which Olympus Chairman Tsuyoshi Kikukawa had fired him. The cause for dismissal, according to Woodford: his insistence that Olympus officials come clean about a series of questionable purchases dating to 2006, totaling $1.6 billion, none of which had been adequately reported in the company’s consolidated financial statements. The deals had been approved by Kikukawa and the Olympus board, yet in several cases the parties receiving the sums were not even clearly identified in Olympus’s books. (At least one Japanese magazine had strongly hinted that the Yakuza were beneficiaries of some of these shady deals.) Woodford, frustrated by the board’s stonewalling, had hired the accounting firm PricewaterhouseCoopers to conduct an independent audit of the suspicious transactions. For several weeks leading up to his dismissal, he had been calling the board to account for these transactions, and eventually demanded the board’s resignation. Instead, Woodford was purged. And now he was running for his life.