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.