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Speaking up at work still poses great peril
Despite it being the ''year of the whistleblower,'' critics say those who raise flags don't have the protection they should.
By MARY JACOBY, Times Staff Writer
© St. Petersburg Times
published January 4, 2003
WASHINGTON -- The three women stared out from the cover of Time with confident, defiant expressions. "The Whistleblowers," the magazine declared, naming them its "Persons of the Year."
But for every Coleen Rowley, now famous for slamming Federal Bureau of Investigation headquarters for bungling an urgent terrorism investigation, there's a Linda Lewis, an Agriculture Department employee struggling in obscurity after questioning the safety of the food supply in a nuclear accident.
For every Sherron Watkins and Cynthia Cooper -- who ratted out spectacular accounting fraud at now-bankrupt Enron and WorldCom, respectively -- there's a Bogdan Dzakovic, a former Federal Aviation Administration investigator who says his career stalled after he warned in 1998 of dangerously lax baggage inspection procedures at airports.
Whistleblowing is hot, it would seem. But only for the people lucky enough to have caught the Zeitgeist and earned some measure of protective fame from the media and Congress, activists say.
For the average whistleblower -- particularly a federal employee -- raising alarms about fraud, incompetence or corruption is a perilous career move, said Tom Devine, legal director of the watchdog Government Accountability Project.
"The state of whistleblowing for federal employees is 'proceed at your own risk,' " Devine said. "We can't really advise them to work openly, because it's an act of professional suicide for federal whistleblowers to be forthright."
For a long time, federal whistleblowers enjoyed greater protections than employees of corporations. But last year, in response to the wave of corporate accounting scandals, Congress passed the Sarbanes-Oxley Act to tackle problems that led to record bankruptcies of public companies.
In addition to requiring top corporate officers to vouch personally for the accuracy of their books, the law gives whistleblowing employees of publicly traded corporations the right to a jury trial in federal court to fight retaliation.
However, for federal whistleblowers, a series of court rulings over the years have weakened the 1989 Whistleblower Protection Act to the point where its protections are practically meaningless, according to Devine and Sen. Charles Grassley, R-Iowa, an author of the law.
For example, the U.S. Court of Appeals for the Federal Circuit, which is the only court that can hear federal whistleblower appeals, has ruled that there are no protections for workers who first talk with their superiors or co-workers about alleged abuses.
"About 90 percent of the time people blow the whistle by going to their bosses," Devine said. "But if you do that, you sacrifice your protections."
Last year, the fight in Congress over a new Department of Homeland Security showed the difficulty in gaining ground for federal whistleblower rights.
The Bush administration originally proposed letting the Homeland Security Department decide whether it had treated an employee fairly.
But Grassley vowed to vote against any bill that did not give employees a hearing before an impartial third party. Grassley sought increased protections for Homeland Security whistleblowers. In the end, however, workers at the department received the same appeals rights as other federal employees.
"Whistleblowers are American heroes and they deserve the safeguards of the Federal Whistleblower Protection Act," Grassley said. "Although Homeland Security employees will now have whistleblower protections, there are still some reforms that are needed."
Lewis at the Agriculture Department and Dzakovic at the FAA say their experiences illustrate the difficulties in coming forward.
In 1996, Lewis was an emergency preparedness evaluator for USDA working on a state-federal program examining scenarios for a hypothetical accident at the Salem Nuclear Power Plant in New Jersey on the border with Delaware.
"I saw that the (Delaware) state government and the federal government as well were really not adequately prepared to protect the public from contaminated food in the event of an accident at Salem," Lewis said in an interview.
But when she tried to include those findings in the exercise's final report, she said, she was told "state officials" did not want anything negative.
Lewis said she believes aides to Delaware Gov. Tom Carper, who was up for re-election the next month, exerted pressure to keep her findings out of the final report.
Lewis said she expressed her concerns to her supervisor and his supervisor. Neither acted, she said.
After she sent faxes to members of Congress about the issue, Lewis said her supervisor called her into his office and told her top government officials, whom he did not name, were "very unhappy" about her actions. She said she was given less and less work to do and was eventually isolated in an office that was a storage closet.
Later, she was forced to take a psychiatric exam and her security clearance was taken away, Lewis said.
Now, with complaints filed at the Equal Employment Opportunity Commission and the Office of Special Counsel, an independent government agency that examines whistleblower complaints, Lewis has been on administrative leave since Sept. 2, 1999.
She draws her $75,000 annual salary, much of which goes to attorney's fees, she said. She has no official duties.
Austin Chadwick, a spokesman for the USDA's inspector general office, said he could not comment on on-going cases.
Carper is now a Democratic U.S. senator. His spokesman, Brian Selander, said Carper had "nothing to do with the creation of the report."
Another whistleblower, Bogdan Dzakovic spends his days in a downtown Washington cubicle, twiddling his thumbs at the new Transportation Security Administration. The former FAA inspector said he, too, has no official duties, though he remains on the government payroll at an annual salary of $87,000 while his complaint is pending.
Dzakovic once was a team leader for the FAA's air marshals program. In 1995 he joined the agency's "Red Team," a small group of inspectors who tested security programs by trying to sneak weapons and fake bombs past airport screeners.
They succeeded about 90 percent of the time, Dzakovic said in an interview. In 1998, after seeing little improvement in airport security, he wrote a memo to then-FAA Administrator Jane Garvey. "I thought it was a disaster waiting to happen," he said.
He also sent a copy of the memo to then-Transportation Secretary Rodney Slater, who responded with a letter to the FAA asking the aviation agency to look into his complaints, Dzakovic said.
That's when his supervisors became hostile.
"They reacted with the bureaucratic mentality. I was obviously a jerk rocking the boat. I knew my career was toast at that point," Dzakovic said. He said his applications for job transfers and promotions were denied and his responsibilities taken away.
Rebecca Trexler, an FAA spokeswoman, declined to comment on Dzakovic's claims. "We cannot discuss personnel matters because of the Privacy Act," she said.
Meanwhile, the FBI's Rowley has been lobbying for increased legal protections for federal employees who raise alarms about abuses.
Rowley, legal counsel in the FBI's Minneapolis office, had slammed bureau headquarters in a now-famous memo for fumbling the investigation of Zacarias Moussaoui, who was later accused of conspiring in the Sept. 11 attacks.
"I was lucky enough to garner a good deal of support," Rowley wrote last September in a letter to Congress. "But for every one like me, there are many more who do not benefit from the relative safety of public notoriety."
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