The following was downloaded from the SNAFU BBS (202) - 547 - 6238 ***** HELP ***** Call Greg Williams, (202) 543-0883, with any questions Greg is the "SYSOP" or system operator The main sections of SNAFU are as follows -- Input / Output - No-nonsense access to Project files. Uploads and downloads in a few keystrokes. A list of recent releases is provided. For more complete lists of our files, and search functions, see library section. Latest News / Hot Tips - Tips on possible stories, including safety and quality allerts we receive directly from industry and government. Whistleblower Survival Guide - Access to the Project's 50 page advice handbook for those who see things going awry in the workplace. Includes sections on the law, the press, Congress and Federal agencies. Message Center - Public and private messages can be left and received. You can address questions or special requests to "SYSOP". Libraries - This is where SNAFU holds the most information. 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If instructions seem unclear, please call me (Greg) or leave a message to the "SYSOP". 浜様様様様様様様様様様様様様様様様様様様様様様様様様様様様 "Courage Without Martyrdom:" "A Survival Handbook for Whistleblowers" (For a hard copy, download WBSG.WP5) 麺様様様様様様様様様様様様様様様様様様様様様様様様様様様様 Blowing the Whistle...............................1 Getting Prepared..................................2 Levels of Whistleblowing..........................3 The Downside of Whistleblowing....................4 Neutralizing Dissenters...........................5 Neutralizing Dissent..............................6 Q - Previous Menu M - More Whistleblower Handbook 藩様様様様様様様様様様様様様様様様様様様様様様様様様様様様 浜様様様様様様様様様様様様様様様様様様様様様様様様融 Whistleblower Checklist..................7 Whistleblowing Outlets.......8,9,A,B,C,D,E Defending Yourself...................F,G,H Security Clearance.......................I The Promised Land........................J Choosing an Attorney.....................K Conclusion...............................L M - Top of Handbook Menu 藩様様様様様様様様様様様様様様様様様様様様様様様様夕 This handbook was prepared by the staff of the Project on Military Procurement and the Government Accountability Project. Special thanks to Julie Stewart for her work. Authors Julie Stewart Thomas Devine Dina Rasor BLOWING THE WHISTLE This handbook is designed to help you decide whether and how to blow the whistle on fraudulent or wasteful activities in the government or industry. You may want to remain anonymous when you blow the whistle or you may want to go public. We want to help you make that decision and find the most successful way to do it. We will tell you what your rights are under the law but also about the realities of trying to obtain those rights. This handbook will show you the many pitfalls of whistleblowing and what the system usually does to individuals who attempt to tell the truth. If you decide to blow the whistle, we want you to do it in a smart and informed way that will give you a chance for success. This is a decision that will affect your future, your family, and your career. A well-planned strategy has a chance of succeeding, but unplanned or self-indulgent dissent is the path to professional suicide. In theory, whistleblowers have the same set of rights of free speech and the right to petition Congress as any other American -- these rights are guaranteed in the Constitution. However, our government institutions have whittled away effective remedies for these rights. One example is demoting federal whistleblowers to a minor league and bureaucratic law system rather than having the right of redress in our Federal court through a jury trial before their peers. This handbook has several sections on how to blow the whistle and attempt to protect yourself in the current inequitable system and also has a section that tells you what must be done to make the system truly work for the whistleblower. We want people to understand how the system must change to be effective but if you want to blow the whistle now, we will let you know the realities of the current system, so you can make a clear-eyed decision about doing it. GETTING PREPARED Blowing the whistle is a high stakes game with a winner and a loser. You may not believe your employer is your adversary, but the record shows that employers often do not want to be told what is wrong with their operations. They often greet the bad news by trying to silence the messenger to avoid any bad publicity. Whistleblowers often are harassed, socially ostracized, and fired from their jobs. Those who aren't fired often are not given meaningful work again. That is why a carefully planned and executed strategy is crucial to winning. To protect yourself from employer harassment after blowing the whistle, these basic survival strategies are recommended. * First, before taking any irreversible steps, you should talk to your family or close friends about the decision to blow the whistle. One of the most serious risks of whistleblowing is family breakup. The entire family will suffer the resulting hardships. If you choose to challenge the system without your family's knowledge or approval, you may lose them in the aftermath -- a sacrifice greater than the professional consequences. * Second, before breaking ranks, you should consider whether there is any reasonable way to work within the system by going to the first level of authority. It is crucial, however, that you do it in a way that does not sound the alarm to trigger a coverup or expose yourself unnecessarily. Surprise attacks are not taken as seriously compared to showing that authorities responded to notice by ignorance or attempted to coverup the problem. It is very hard to do this successfully, especially if you are exposing serious wrongdoing. In a low-key, non- accusatory manner, you could, in writing, make it clear what is wrong and what you position is on the matter. You should not be pushy or demanding if you try this but it might be useful to your credibility to see if anything can be done internally before risking your career. Unfortunately, if you reveal yourself as a threat, you may be setting yourself up or letting them have time to cover up the problem. But if there is no record of your prior objection, the system may respond by making you the scapegoat for the misconduct that you have attempted to expose. Then your effort would be diverted to proving that you were not responsible for the wrongdoing. In many situations it is unwise or impossible for the whistleblower to complain internally, especially if you are exposing serious fraud and waste. It is hard to decide how far to protest in the system if you plan to remain an anonymous whistleblower. The decision not to inform anyone internally must carefully be made on a case by case basis. If you make a record of protest in the system and then the problem is exposed publicly, you may draw suspicion to yourself. You must weigh the risks and decide what is the best way to go in your unique situation. This decision could be one of the hardest judgment calls for you to make and we suggest that you talk to the Project on Military Procurement or the Government Accountability Project if you are unsure what to do. * Third, you should be alert and discreetly attempt to learn of any other people who are upset about the wasteful or fraudulent activity. Through strategic, but casual, questioning and discussions with co-workers, you can learn whether your objections are credible among colleagues and whether you see enough of the whole picture to make sure that your suspicions are well founded. Your colleagues may be important witnesses in the future and may know more about the situation or confirm that the problem is more widespread than you know about. However, again you should be careful not to expose yourself in the process as a threat to the organization's policies or be labelled as a troublemaker. * Fourth, you should be on best behavior with the administrative and support staff. Managers who respond to dissent with harassment and repression may use that same approach routinely with secretaries, clerks and other assistants. These people can be a great help to you in the future by providing you with discrete warnings or later on, with testimony as to management motives. * Fifth, before and after you blow the whistle, it is very important to protect yourself by keeping a careful record of events as they unfold. Not keeping good records of harassment and other activities is one of the biggest mistakes that whistleblowers make. There are several good ways to do this and the time you take now could be very valuable in any investigation or court proceeding. Keep a diary -- Keep a factual log of your work activities and what is happening around your workplace. Try to keep this diary as straightforward as possible, leaving out any speculations, personal opinions, or any animosity you may have towards the situation you are in or towards your fellow workers. The diary does not have to be kept on a daily basis, but it is important to write down events that relate to the fraud and waste you are planning to report or any harassment you are receiving because of your objection to it. Make sure that each entry is dated and initialed by you. Memoranda for the Record -- When you have an important event or conversation about which you want to make a permanent record, you should make a memorandum for the record. Place the title, Memorandum for the Record, at the top and then write down everything you can remember from the conversation or event. Then you should sign the memorandum, date it, and if possible, have someone witness it. If you need to write a memorandum for the record about a conversation or event where it will be your word against someone else's, the safest way to proceed is to write the memorandum, make a copy, seal it well in an envelope, and mail it to yourself. Once it is sent through the mail it will be postmarked and you should store it in your records without opening it. Then when you need to prove your claim, the sealed envelope will show that you wrote the memorandum on the postmarked date. * Sixth, you should identify and copy all necessary supporting records before drawing any suspicion to your objections. Access to information could be cut off once the exposure of potential waste or fraud is identified as a threat to the organization. Even if you plan to remain anonymous, it is important to have a copy of all relevant documents because once the problem is exposed, documents may be destroyed or hidden. Either way, it is very hard to blow the whistle successfully without credible documentation to back up your claims. Documentation that is generated by the organization itself is the best documentation. Written explanations by you are not considered good documentation. Look around and you will find that many managers, when forced to do something that could later blow up in their faces, will keep a "Pearl Harbor file" to show that they were only following orders. Those files can be very valuable in trying to prove fraud and waste. If you cannot copy all the documents, make copies of the best supporting ones and then make a list of the rest so that you can tell an investigator or a court exactly where to go to get the rest of your supporting documents. Be warned, however, that some employers such as the Department of Justice and certain companies will accuse you of "stealing" their "property" when you make copies of the evidence incriminating them. So far this claim has been a repressive bluff, except when the information's secrecy is specifically protected by law. This reaction by the bureaucracies and the companies has had a chilling effect on obtaining documentation by dissenters but you need to have documentation to be credible to people outside the bureaucracy. * Seventh, you should research and identify elected officials who have proven their sincerity, journalists, and relevant non-profit organizations who can help expose the fraud. To have any realistic hope of survival, you have to go on the offensive. For whistleblowers as much as any other form of conflict, the best defense is a good offense. It is essential to develop a support constituency whose interests coincide with your career survival. Regardless of legal rights, whistleblowers usually win when they successfully communicate their message to the majority of citizens who should be benefiting from their dissent. When they don't, they lose. Truth is still the most powerful political weapon in our society -- unless it is a secret, in which case it can be dangerous. However, it is important not to contact the press or the Congress until you have definitely decided to blow the whistle, and decided whether you plan to be anonymous or public. Whistleblowing is not something you want to try to do alone without help outside the bureaucracy. When you have made the decision, it is critical to remember that you must be on the offensive and not just react to the bureaucracy's or company's efforts. Once you are reduced to responding passively and once you have stopped setting the agenda, you will probably lose. When the wrongdoing is exposed, the system should be reacting to the press, the Congress, the courts, and the public. Having your support constituency informed and working with you will help you remain on the offensive. Don't underestimate their advice and support. * Eighth, you should either invest in the funds to get a legal opinion from a competent lawyer or talk to a non-profit watchdog organization about the potential retaliation you could incur, the odds for a successful defense, how much it could cost to defend your rights, and whether there are truly legal restrictions on any of the evidence you may be considering for disclosure. The Project on Military Procurement (PMP) and the Government Accountability Project (GAP) can give you advice, help you plan a legal strategy, help you decide about reporters and members of Congress as well as advising you about legal counsel. One way to help your credibility is to make sure that you do not embellish your charges. It is far better to understate rather than overstate your case because the bureaucracy can leap on every slight exaggeration and use it to discredit you. We usually advise whistleblowers to tell the Congress and the press 80 percent of your knowledge of the fraud and waste and give them ways to discover the last 20 percent themselves. The less you skate on thin ice with your information, the more credible you will be to people who can help you. Although this list may seem overwhelming, you will appreciate its value after learning the techniques used in organizational reprisals against whistleblowers. Taking on the system can be the best or worst decision of your life. If you intend to win, you might as well prepare and be smart about blowing the whistle. LEVELS OF WHISTLEBLOWING You need to consider at what level you want to blow the whistle. You can go public with your knowledge or remain an anonymous source. This decision depends on the amount and type of documents you have and your willingness to take intense public scrutiny. Some potential whistleblowers imagine that there is some glamour in becoming the public crusader for truth, but most will tell you that the mental anguish tarnishes any ego boost that you may anticipate. If your main motivation is revenge, fame and recognition, you are doing it for the wrong reasons and the system will be very effective at smashing your ambitions. Do not forget that today's news is tomorrow's fishwrap. Long after the public has forgotten that you were a hero, your superiors and the system will remember what you did to them. Also, you should not be deluded that if you just get up and tell the truth that everything will be fine. We have been brought up with the idea that no matter how bad the circumstances, if we just tell the truth, we will not get spanked. There is often no justice for a public whistleblower, just the internal satisfaction that you did the right thing, and that you lived your values instead of stopping at lip service. If you approach your whistleblowing with the idea that this is all you will receive, everything else will be a bonus. Once you become a public whistleblower, you must accept the responsibility of following through on your charges. Besides the social responsibility, it is almost impossible to stop mid-stream and have any hopes of surviving the ordeal mentally or professionally. Remember the quote from Admiral Hyman Rickover, "If you must sin, sin against God, not against the bureaucracy. God will forgive you but the bureaucracy never will." The positive side of being an anonymous whistleblower is that you may protect your career. However, you often are limited in what you can expose because you have to make sure that the documentation that you leak is self-explanatory and can stand on its own merit since you cannot go public with an explanation. You may, as an anonymous whistleblower, be able to tell another source, a reporter or your representatives at a non-profit organization the explanation behind the documentation. You also have to be careful that it cannot be traced to you. Sometimes the substance of the charges can have your "signature" because, due to your job, you are the only person who could be aware of a problem or have unique access to the important records. The Project on Military Procurement and the Government Accountability Project have devised some successful ways to avoid having a document traced back to a whistleblower, but it is virtually impossible to guarantee that the documents cannot be traced back to you. Another good thing about being an anonymous whistleblower is that, since you are not known, you are in a position to watch from inside how the bureaucracy tries to coverup the fraud and waste once the problem is public. We have had whistleblowers on the inside who have leaked information and then were actually on the "damage control" team that was intent in covering up the fraud. Public whistleblowers usually are isolated from the bureaucracy once they are exposed. After the flow of information dries up, it is hard to rebut whatever the system claims it is doing to solve the problem or if they deny that there is a problem. To be a successful anonymous whistleblower, you must have a good way to leak the documentation. If you decide to blow the whistle, this handbook lists potential outlets and the best way to approach them. The worst thing you can do as a whistleblower is to remain semi-anonymous. If you are suspected of the leak but are not publicly known, you have the worst of both worlds because the system will begin to retaliate without you having the benefit of outside resources to blunt that attack. It takes a certain personality to leak information anonymously while remaining cool enough not to draw suspicion. If you don't have a good poker face and you think that there is no way to leak the documents without it being traced to you, you are better off going totally public or not blowing the whistle at all. The decision over whether or not to be a public whistleblower is a judgement call on your part. You can get advice but you know the circumstances better than anyone else. THE DOWNSIDE OF WHISTLEBLOWING Another consideration before you blow the whistle is to understand and expect the downside of your actions. Besides the obvious problems of whistleblowing such as losing your job and unresponsive agencies that often don't protect you, there is also an emotional and mental price to pay for whistleblowing. People who have been lifetime friends may turn against you and the people who work with you may treat you as an outcast. Often, in communities that depend on the industry or government money for its livelihood, people will ostracize you and perhaps your family. This kind of constant, negative pressure can color your judgement and make you paranoid about every event. This works in the bureaucracy's favor if it wants to paint you as an unreasonable, possibly deranged, person whose charges should not be taken seriously. To succeed you must be able to rise above this trap and most importantly, keep a sense of humor about life and your situation. It also helps to have another job or a hobby that takes a good portion of your time so that your whistleblowing activity does not totally dominate your life. Doing this will help you keep your perspective that there is more to life than whistleblowing. It is true that whistleblowers often face some type of surveillance from either the government, the industry, or some other private investigator. This experience can be very troubling and can add to the misery of blowing the whistle. While it is important to document any suspected surveillance through a diary or a memorandum for the record, it is also important not to let suspicious activity get to you. We often advise that if someone is watching you, he or she wants you to become affected by the surveillance and to act irrationally about it. It is to the benefit of your detractors for you to sound crazy to the general public by saying that your phone is tapped without having proof. Remember, if you have nothing to hide, there is nothing to fear about being watched. It is very hard to prove that you are being watched or that your phone is being tapped, so the best way to deal with this problem is to be careful about information you give over the phone and don't become paranoid about it. Another important personal consideration in your attempt to blow the whistle is to make sure that you do not have any hidden skeletons in your closet that you do not want to be made public. It is fairly typical that the people who are the object of your whistleblowing will work very hard to find some flaw in your past or in your character and attempt to exploit it. So, a major consideration in blowing the whistle must be your ability to withstand intense personal scrutiny. If you haven't paid your taxes or are having an extramarital relationship, you must be prepared for this to become public. In the words of the famous reporter Clark Mollenhoff, you must be prepared to live with the whole record. If you decide to blow the whistle, you will be taking on a very large bureaucracy or company that has a large pool of resources to attempt to discredit you. The odds can be against you but if you have good solid documentation and a network of people helping you, you may be able to expose the fraud and waste and still survive professionally, financially and emotionally. Don't underestimate the forces against you when large sums of money and political influence are involved. The decision to blow the whistle is ultimately yours, even after you have prepared your case and received good advice. The following is a list of how the bureaucracy can try to neutralize public whistleblowers. (See next section, "Neutralizing Dissenters"). Neutralizing Dissenters -- Make the whistleblowers, instead of their message, the issue The first commandment for this tactic is to obfuscate the dissent by attacking the source's motives, professional competence, economic credibility, sexuality, or virtually anything else that will work to cloud the issue. For example, when Three Mile Island engineer Richard Parks challenged sloppy cleanup practices that could have rivaled the accident, his employer's first reaction was to brush aside the safety issues and place Parks under investigation for alleged financial conflict of interest. Parks was not vindicated until he went public and sought help from the Department of Labor, Congress, and the Nuclear Regulatory Commission (NRC). All three supported him, and the NRC ordered cleanup procedures to be rewritten and extensive tests to be conducted. Over a year later the challenged cleanup was conducted lawfully. - Isolate the whistleblower One technique is to transfer the whistleblower to a bureaucratic Siberia, both to make an example of the whistleblower and to block the employee's access to information. After Food and Drug Administration quality control chief Dr. Joseph Settepani protested introduction of well-known carcinogens and mutagens into the food supply, he was reassigned to long-term research in a trailer on an experimental farm. Federal Aviation Administration (FAA) engineer James Pope served as the agency's ombudsman for the general aviation constituency, until he pursued the wrong issue -- FAA suppression of an industry-developed backup device to warn pilots of impending midair collisions. The FAA reasoned that certifying the private device, which had passed all agency tests for feasibility and reliability, would obviate the agency's own budgeted long- term research and development program for a backup to the Air Traffic Control system. After Pope dissented, his superiors reassigned him to Seattle, Washington, where his duties vanished, except for tasks such as selling bonds to local Boy Scout troops. -- Put them on a pedestal of cards Another technique involves appointing the whistleblower to solve the problem and then making the job impossible through a wide range of obstacles undercutting any realistic possibility of achieving reform. The finale is then to fire the employee for incompetence when the problem is not solved. Engineer Bertrand Berube was a victim of this tactic at the General Services Administration, where Administrator Gerald Carmen assigned Berube to correct serious building code violations -- numerous fire and occupational safety hazards Berube had identified at several federal facilities. Unfortunately, Berube was denied the staff authority and even access to information necessary for his mission. Later, he was fired for his failure. -- Display chutzpa in selecting charges One principle is that it is important to go well beyond merely defeating a whistleblower. In order to prove to others that no one is safe, the goal is to make the most outrageous charges possible. For example, a whistleblower who is renowned for being a gentleman may face sexual harassment charges. A soft-spoken, self-effacing individual will be branded a loud-mouth egomaniac. -- Prosecute them The longstanding threat to attack whistleblowers for "stealing" the evidence used to expose corruption is getting more serious, particularly for federal employees or government- contract workers. The foundation is similar to the premise of the British Official Secrets Act: the government owns all the information it generates or possesses. Employees with security clearances have to sign a nondisclosure form accepting the government's property right as a condition of keeping their clearances. (See BLOWING THE WHISTLE WHEN YOU HAVE A SECURITY CLEARANCE.) In August 1989 the Justice Department announced abandonment of a decade long policy not to prosecute whistleblowers for unauthorized disclosures. Now the Attorney General will try to send whistleblowers to jail for leaking information about criminal investigations, or even for running afoul of civil statutes, such as by allegedly violating the Privacy Act rights of culprits who may be identified in the unauthorized whistleblowing disclosure. -- Eliminate the job A common tactic is to lay off whistleblowers even as the company or agency is hiring new staff. Again for purposes of teaching others a lesson, the more obvious the inconsistency the better. A closely allied tactic is to reorganize away the structural independence of particular responsibilities, such as when a nuclear engineering firm deemphasizes the quality control department by making it a component of the production staff. -- Destabilize whistleblower's support base Destabilizing a whistleblower's support base refers to withdrawal of research privileges, data access, or most often subordinate staff. When Anthony Morris challenged the swine flu vaccine and other dangerous drugs, his Federal Drug Administration superiors transferred his animal handler, a person whom Mr. Morris had relied on for many years as a functional partner in the laboratory. The most advanced form of this tactic then calls for overwhelming the whistleblower with new work during the disruption, to be followed by dismissal for incompetence when he or she fails to keep up. Neutralizing Dissent The point of the preceding tactics is to overwhelm the whistleblower in a struggle for self-preservation -- of career, family, bank account, even sanity -- until the point of dissent is forgotten or put behind weightier survival priorities. There are specialty methods for neutralizing dissent, some which are listed below. -- Separate expertise from authority The goal here is to have organization men make even technical decisions, with limited advisory input for the experts. As a result, all of Morton Thiokol's practicing engineers could argue against the Challenger launch and be overruled by those with management functions. -- Keep them ignorant This is an extreme use of the national security "need to know" rule that is legitimate far less often than it is employed. For example, after whistleblower Charles Stokes and other dissenting engineers who challenged manipulation of results in the seismic design review of the Diablo Canyon nuclear power plant were transferred away, the company brought in replacements who were unfamiliar with the job history and who knew better than to ask questions about unrealistic assumptions for calculations. -- Substitute democracy for the scientific method When convenient, normally undemocratic organizations will substitute the bureaucratic equivalent of mob rule, where a group of engineers who will not challenge the status quo out vote the whistleblower without applying the objective tests of the scientific methods. A more subtle variation of this tactic is to misuse peer review as a discrediting tactic by packing the panel with a particular bias, or as a stalling tactic by instituting duplicative or unnecessary reviews. An example that combined both tactics involved the dissent of NRC engineer Isa Yin, who had investigated and confirmed whistleblower Stoke's charges at Diablo Canyon. When Yin's investigation threatened to block approval of the plant's license, the NRC appointed a team of fifty engineers to take over completion of the work and to engage in peer review of his findings. At the ultimate licensing vote they all disagreed with Yin, who was reduced to arguing the facts in isolation and protesting that he had been prevented from access to the necessary data. The U.S. Court of Appeals for the District of Columbia Circuit stayed the license for five months during 1984, in part due to doubts on the handling of Yin's dissent. -- Prevent a written record When a policy is indefensible, the goal is to restrict debate to an oral dialogue. This can be enforced through peer pressure, overscheduling so there is not time for a record, or even a gag order if necessary. The point is that it is difficult to accuse someone of revising an oral history, and accountability will be diffused in case of a catastrophe. For example, in 1985 the NRC's internal affairs unit, the Office of Inspector and Auditor (OIA), reexamined the peer review process that had overruled engineer Isa Yin and Diablo Canyon whistleblowers about design issues on which the plant's license was legally conditioned. In its report OIA concluded that due to a lack of available supporting information, it was "unable to assess the validity of [peer review] conclusions" on key issues. More generally, OIA reported that it "did not find sufficient documentation to demonstrate that [the NRC staff] had verified the quality of the design control program, either in a direct inspection or in licensing review." None of these techniques are new. Defensiveness and the instinct to strike back when criticized are as old as the history of organized society. But in 1973 President Nixon raised, or lowered, reprisal techniques to a new level of sophistication. Fred Malek, his Director of the White House Personnel Office (and, coincidentally, Chairman of the 1988 Republican National Convention) issued the Malek Manual, a secret report on how to purge the career civil service system of "unresponsive" employees -- whistleblowers or Democrats -- without running afoul of the law. The reprisal tactics above are largely drawn from the Malek Manual and illustrated with more recent examples. Ironically, whistleblowers exposed the Malek Manual and it was published in the Watergate Committee's report. Now that you have some idea of what can happen to you, a decision has to be made on whether you still want to blow the whistle. The following checklist can help you see if you are ready to blow the whistle either anonymously or publicly: WHISTLEBLOWER CHECKLIST Things to consider if you plan to remain anonymous when you blow the whistle: 1. Am I in the position to know that what I see as fraud really is improper in the bigger picture? 2. Can I prove my allegations with self-explanatory documents that don't need my public explanation? 3. Can these documents be traced to me because a small group of people received them or my copies are uniquely marked? 4. Can I act nonchalant when these documents are disclosed so as not to attract suspicion? 5. If discovered, do I or my spouse have the ability to support my family outside my current profession? 6. Is my family prepared for the possibility of a negative high public profile? Things to consider when you are going to be a public whistleblower: 1. Are my family and I financially and mentally ready for a protracted fight with my employers to prove the waste and/or fraud and to try to retain my job? 2. Am I mentally ready to have my fellow workers and perhaps my friends turn against me because of my disclosures? 3. Am I ready for personal attacks against my character and to have my past indiscretions made public? 4. Do I have adequate documentation to prove my charges without having to go back to my workplace? 5. Am I sure that my motivations are to expose the fraud for the sake of the country and not just sour grapes, revenge, or public attention? 6. Am I financially and mentally ready to change my career to work outside my current field? WHISTLEBLOWING OUTLETS Not all whistleblowing outlets are equal. Some provide greater confidentiality than others, some are genuinely concerned about exposing waste and fraud, some want to discourage dissent. However, there are alternatives to the company or agency hotlines and you should be aware of the advantages and disadvantages of each route before you choose. We will explain how each is supposed to work and then tell you, by past examples what really does happen. We believe from our experience of working with whistleblowers that non-profit groups, the press and false claims suits are the most effective outlets under the current circumstances and climate. Your whistleblowing situation is unique, so it is important to study each option to find the best one for your circumstances. We will start with Executive Branch outlets that have not had a good track record and end with the outlets that we believe have proven to be the most successful. Study each section carefully. Federal Hotlines In 1979, the Secretary of Defense established the Department of Defense hotline as an avenue for the now Inspector General's office to learn of potential wrongdoing or mismanagement. Today there are 17 other departments and agencies that have hotlines, and the Army, Navy and Air Force each sponsor one. In an effort to institutionalize the process of reporting misconduct, the President's Council on Integrity and Efficiency (PCIE) recommended standards for receiving, controlling and screening allegations. They direct that: -- a simple, well-publicized way be developed for agency employees and other interested persons to submit allegations of fraud, waste, abuse and mismanagement while preserving anonymity when possible and if desired; -- a retrievable record be maintained of each allegation received; -- each allegation be screened as soon as possible after receipt based upon the nature, content, and credibility of the complaint, and in light of priorities and resources, an appropriate decision on whether or not to refer the complaint for further inquiry be made for each allegation; --the rationale for the decision on each allegation be documented in the record. With these standards as guidelines, hotlines are supposed to operate similarly: You call the toll-free hotline and report an allegation of fraud, waste, or mismanagement. That allegation is reviewed to determine if followup is necessary. If the allegation merits further review, it is sent to an investigator who goes into the field to research the report. If the investigation verifies the allegation, corrective action is taken and the case is closed. In theory it sounds very straightforward and simple. In practice, it is anything but clear-cut. There are far too many gray areas in federal hotline investigations largely because the government agency is investigating itself. Problems with Hotlines Standardization of hotline procedures has not been achieved. In a report by the PCIE (September 1987) the DOD hotline received top billing as the best run hotline but the PCIE admitted many of the other hotlines do not meet operational standards. In an effort to improve the uniform handling of hotline calls, the PCIE has set up training courses available to federal, military and private industry hotline operators. Two areas of concern addressed in the PCIE training courses are confidentiality of the source and case followup. Confidentiality is a problem inherent in the hotline system. How does a whistleblower provide sufficient information to support the allegation without giving away details that identify himself? Because the balance is hard to strike, much of the information received is either watered down to the point that no investigation follows, or is traced back to the only person who could have that knowledge. At some hotlines, confidentiality is treated with outright disdain. A spokesman for the DOD IG hotline (who asked not to be identified) believes many military hotline operators are more concerned about discovering who the caller is than whether the allegation is true. In an atmosphere where discipline, conformity, and unquestioning obedience to orders are prized above all else, it should come as no surprise that a whistleblower could be regarded as a traitor. Take the case of John Kartak. After 19 years in the Army, he was assigned to the recruiting station in Minneapolis. There he found that unqualified applicants were recruited in order to meet quotas. High school diplomas were forged and criminal records were concealed so marginal recruits could be signed up. When Kartak refused to endorse the misconduct, he called the Army hotline and blew the whistle. Kartak's "reward" for his integrity was repeated harassment including two psychological evaluations ordered by his superiors and involuntary commitment. One of his superiors told the VA hospital, "He has lodged numerous complaints recently. . .I find his behavior highly unstable. I am concerned that he may do something to harm himself or others." Kartak was also ostracized, threatened, and intimidated by his co-workers. Kartak was vindicated when the Inspector General confirmed his charges and found at least 58 people in the Minnesota recruiting office guilty of engaging in illegal acts. In addition to forging documents, one recruiter demanded sex from a female recruit, several were dealing and using drugs and running a prostitution ring, and two were charged with receiving stolen goods purchased from criminals they recruited. But the price of Kartak's vindication was high and the abuse of the hotline system's confidentiality was evident. Case followup is another area the PCIE emphasizes in its training courses. It would like all agencies to adopt the procedure used by the DOD and General Accounting Office (GAO) hotlines. Those hotlines assign each caller a case number so they can call back later to find out what action was taken on their allegation. This system maintains the anonymity of the whistleblower while permitting him to followup on his case. The details of the case are not disclosed to the caller, but he is told if the case was closed and whether it was substantiated. For a full report of a closed case the whistleblower must file a request under the Freedom of Information Act (FOIA) which can jeopardize his or her anonymity. The problem is, in order to file a FOIA request, the whistleblower must identify himself. The request, with his name on it, will be sent to the IG investigating the report and can make its way back to the very persons committing the offense. This kind of Catch-22 can lead to serious reprisal. Nancy Kusen discovered how the FOIA Catch-22 works. Ms. Kusen is a contract administrator for the Defense Contract Administration Service (DCAS). In 1985 she began complaining about overcharging and alleged shoddy work on Navy contracts by the Elliot Company. She complained first to her superiors and when nothing seemed to happen, she called the DOD hotline. The call led to an investigation by the Defense Criminal Investigating Service which substantiated many of the complaints but found no criminality. At the same time, Ms. Kusen became the target of reprisals ranging from lowered performance evaluations, denials of promotion, and repeated harassment. In October 1986, Ms. Kusen filed a FOIA request to find out the status of her case. Records show her request was referred to the Defense Contract Audit Agency (DCAA) which, in turn, asked United Technologies Corporation (Elliot's parent company) if it objected to the release of the audits. The DCAA included a copy of Ms. Kusen's FOIA request containing her name, address and home phone number. According to the DCAA it is "routine practice" to include the FOIA request. The FOIA request that disclosed Ms. Kusen's name to Elliot's parent company provided positive identification that she was the whistleblower, enabling them to single her out for harassment. In Ms. Kusen's case, however, the harassment already had started shortly after her initial call to the DOD hotline, convincing her that the hotline disclosed her identity to DCAS. But Ms. Kusen's experience with the FOIA request serves as a warning to other whistleblowers who may consider filing one to find out the status of their case. Ms. Kusen's case also contributed to the caveat now offered by the Inspector General's office to FOIA requestors: " Your confidential status as a hotline caller does not apply to requests under the Freedom of Information Act." Yet, if you don't file a FOIA, you can't tell if the government investigated your charges in a thorough manner. Other problems with hotlines were noted in a General Accounting Office report on the DOD Hotline (March 1986). Although the DOD has taken steps to correct the problems, it is likely that if they exist at the best-run hotline, they exist within all hotlines. According to the GAO, there are four recurring problems with the hotline system: * investigator objectivity * insufficient documentation on case files * incomplete investigative reports that do not comply with DOD reporting requirements * limited action on planned remedial follow-up Another problem that the GAO does not mention is DOD's current policy is that companies should govern themselves, or "self-governance" as urged by the Packard Commission and is downplaying the role of government investigators. Therefore, the hotline operators realize that challenges to the present system from within do not receive a great deal of support by DOD policymakers. In an effort to correct the 1986 GAO report problems at the DOD hotline, the DOD has started a Quality Assurance Review. The review checks the files of DOD field investigations to ensure that the summary report matches the investigative report. DOD also claims that it is more carefully reviewing cases it refers to the services. This is important because whether it is done advertently or inadvertently, the hotline can buck the information back to the services who then can send it right back to the program manager who may be involved in the fraudulent or wasteful activity. The record of action taken on DOD hotline allegations indicates the system is still not operating in the best interest of most whistleblowers. In the 1987 calendar year, the DOD hotline received 9,425 total contacts. It opened 1,186 cases from those contacts, substantiated 226 cases and partially substantiated another 329 cases. Not all those cases were opened in 1987. Some had dragged on from the previous years so it is impossible to know how many of the original 1,186 cases opened in 1987 were substantiated the same year. As any good investigator knows, if the government does not move within a year to substantiate charges, the bureaucracies often can cover up any fraud or waste as time goes on. A similar GAO Fraud Hotline Summary published in April 1988 reported that during its nine years of existence, the GAO hotline received 94,000 calls, found only 13,992 cases worthy of investigation, and closed 11,246 of those cases. Of the cases closed, 1,589 were substantiated. Another 580 cases were not substantiated but action was taken to prevent improper activity from reoccurring. This means of the 94,000 hotline calls and letters reported to the GAO, 2.3 percent were substantiated or acted upon. These figures are somewhat misleading when one considers that not every call received at the hotline is a report of fraud, waste, or mismanagement. Hotlines receive callers who have personnel problems that should be handled in-house, crank calls, people with questions and even the occasionally lonely person who just wants to talk. But it is doubtful that a significant number of the 94,000 GAO calls fell into these categories. Whether blame for the dismal record of substantiated hotline calls can be placed on investigator objectivity, incomplete investigations, or watered down reports from the whistleblowers, the figures speak for themselves. The odds of reporting fraud, waste, and mismanagement and actually having it investigated and corrected are small. The figures above do not instill confidence in a prospective whistleblower that the hotline system will work for them. Incentive Suggestion Programs After several embarrassing disclosures of spare parts costs a few years ago, the services and the DOD claimed to be serious about establishing suggestion programs to save money. They began to reward individuals for suggesting ways to reduce spare parts overpricing. According to the Navy, calls to its pricing hotline during 1987 resulted in refunds from 21 defense contractors that totalled $1,805,271. But to put that figure in perspective, one needs to realize that the total dollars spent on Navy spare parts during 1987 was $2,093,000,000. A general outline of the Service Suggestion Programs follows: * Submit your suggestion in writing to the Price Monitor/Installation Resource Management Office at your base. * After preliminary review, the suggestion is sent out for investigation. * If the suggestion is adopted, you receive a percentage of the savings ranging from $50-25,000. Any award of $25,000 must be approved by the President. The nature of the programs eliminates anonymity which means the caller may be subjected to harassment from superiors who are comfortable with the status quo. This is especially true because often the official policy and the rules and regulations that are guiding the procurement of these items are set up to maximize the amount of money that is spent. This is done for political reasons to make sure that the budget is spent every year and to justify more money the following year for the bureaucracy. Airman Thom Jonsson found out the Air Force preferred the status quo to his suggestions for saving money. Jonsson was working for the maintenance and supply section of the C-5A cargo planes at Travis Air Force Base in California. In the course of his duties he discovered that many spare parts were purchased for incredible prices, including the now infamous $7622 coffee brewer. Another example was an armrest pad which cost $670, but Jonnson determined that it could be made on base for $25 with no rearrangement of machinery or personnel. The Local Manufacture Supervisor at Travis Air Force Base concurred with Jonsson's estimate. In January 1984, Jonsson submitted his money-saving proposal to his base's Zero Overpricing Program representative. In April, Jonsson received notice that his proposal was "not in the best interest of the Air Force." He resubmitted his suggestion and waited for a response. By August 1985 he had heard nothing and decided to contact the Project on Military Procurement, a non- profit watchdog agency. After the Project evaluated his situation and discussed with him what he wanted, his information was taken to Senator Charles Grassley (R-Iowa) who was then the chair of the Senate Judiciary Subcommittee on Administrative Practices and Procedures. The subcommittee asked Jonsson to come to Washington and testify before the committee. Jonsson went to the Capitol on his own time and testified in civilian clothes about the excesses he had witnessed on the C-5A spare parts. The hearing generated a lot of publicity which helped to keep the Air Force from retaliating against him. He finally did get some money for his suggestion. A year later Senator Grassley asked Jonsson if the prices of the spare parts, including the armrest, had gone down and Jonsson reported that they had barely changed. When a press conference was scheduled to expose the situation, the Air Force began to harass Jonsson. He was denied routine leave, assigned a "babysitter" to make sure that he "didn't get into trouble" and an attempt was made to arrest him on the ironic charge of illegal destruction and disposal of spare parts. Several members of Congress protested loudly, with Senator Grassley, and Representatives John Dingell(D-MI) and Barbara Boxer (D-CA) stepping in to protect Jonsson effectively from harassment. Jonsson's case is an illustration of how a suggestion program can go awry, and how sound suggestions are not always welcomed and can lead to harassment. IG, DOD Cash-Awards Programs The IG, DOD Cash-Award program is different from the Service incentive suggestion programs in several ways. It gives rewards arbitrarily to those individuals whose disclosures save money rather than systematically to anyone who suggests a viable way to reduce spare parts costs. This means the program is not incentive motivated. Calling the DOD hotline with a report of waste will not guarantee you a cash reward. One would like to think that after being publicly recognized and honored for saving the government money, your superiors would not have the motivation or nerve to harass you. But after your moment of glory has faded and you revert back to your regular employee status, you will be left facing perhaps the very management you accused of wrongdoing. They may not forgive and forget. Since the inception of the program in May 1984, 38 people have been recognized for cash awards totalling $46,000. Their disclosures have led to claimed cash savings of over $36 million. To put that in perspective, the DOD will have spent $1,975,449,000,000 from FY 1984 to FY 1990. (DOD IG Semi-Annual Report to Congress, 10/1/87 to 3/31/88) Office of Special Counsel The Civil Service Reform Act of 1978 created a formal whistleblowing disclosure channel through the Office of the Special Counsel, which has a parallel duty separate from defending employees against repressive personnel practices. The Special Counsel screens whistleblowing disclosures and orders agency chiefs to investigate the challenges that have merit. When the OSC determines that there is a "substantial likelihood" the whistleblower's charges are accurate, a more intensive reform process is triggered. The agency head must investigate and reply within sixty days in a report whose contents are specified by statute, including the issues and evidence that were investigated, the methodology for the probe, a summary of the evidence obtained, findings of fact and law, and a summary of corrective action to solve any verified problems. After receiving the whistleblower's comments, the Special Counsel evaluates the report for completeness and reasonableness. Then the report is sent to the President and Congress. The Special Counsel must maintain a copy of each report in a public file, along with the employee's comments. The purpose of the OSC whistleblowing disclosure channel was "to encourage employees to give the government the first crack at cleaning its own house before igniting the glare of publicity to force correction." Indeed, if administered in good faith, the Reform Act mechanism offers strategic benefits for a whistleblower to be effective in his or her dissent. It could offer an opportunity to gain the legally-binding judgment of an objective third party that the whistleblower's charges must be taken seriously. At a minimum, it maximizes the public whistleblower's credibility and helps to reduce isolation. The OSC evaluation that there is a "substantial likelihood" the allegations are well-taken is the bureaucratic equivalent of a "Good Housekeeping Seal of Approval" for that particular dissent. By comparison the OSC has handled its responsibilities to screen whistleblowing disclosures more objectively than its duties to investigate and act against job reprisals. On occasion, the combination of OSC support for the dissent and the knowledge of evaluations at the end of the process also have helped to improve the quality of agency reports in response to whistleblowing disclosures. In both the nuclear power and safe food areas, the Nuclear Regulatory Commission, U.S. Department of Agriculture and the Department of Health and Human Services have confirmed the validity of employees' dissent and taken serious corrective action. A guideline for preparing OSC whistleblowing disclosures is enclosed as an appendix. Unfortunately, as a general rule, this option at best produces only cosmetic reform. Structurally, even with OSC support the agency targeted by the whistleblower's charges is investigating itself. Good faith responses have been the exception rather than the rule. Further, the OSC typically accepts as reasonable and complete whatever report the agency sends back. As a result, more likely than not an OSC whistleblowing disclosure is merely an opportunity for the agency to cover up the evidence, perfect its defenses and then issue an official self-exoneration that soon will be approved by the Special Counsel -- all before serious investigations by Congress, the media or other outside groups that would like to ferret out the truth. This means an OSC whistleblowing disclosure usually will be counterproductive unless it is part of a larger strategy involving other institutions. That was the case with all of the examples listed above. In some instances the OSC channel has been treacherous. On numerous occasions the Special Counsel has ruled that the dissent was unreasonable but then sent it to the agency chief anyway without the employee's consent. These "informal referrals" have been a double whammy -- advance warning to the agency of serious dissent, and an invitation to retaliate with impunity since the Special Counsel's ruling meant the dissent was too unreasonable to qualify as legally protected speech. New legislation should make the OSC a safer channel for whistleblowing disclosures, by forbidding the Special Counsel from forwarding the employee's charges or revealing his or her identity without consent. Inspectors General Whistleblowing disclosures through the Special Counsel can enhance the quality of another conventional channel for investigation of employee concerns -- the Office of Inspector General. Each agency has one, either by that name or another. These offices are responsible for investigating and reporting on alleged misconduct by the agency or its employees. The IG's at most major agencies are covered by the Inspector General Act of 1978 or a similar, subsequent statute. Employees who are considering disclosures to an IG should ascertain if it is a statutory Office of Inspector General. The distinction is quite significant. Statutory IG's can only be nominated and dismissed by the President. Non- statutory IG's are hired and fired by the agency chief whose programs they are investigating. The agency head can comment on but not change the text of reports by statutory IG's. By contrast, agency chiefs have unlimited censorship rights for reports by non-statutory IG's. Statutory IG's have the authority to investigate reprisals against their witnesses. Non-statutory IG's can investigate only what the agency chief permits. To illustrate what this means, each year up to 10% of referrals to the Department of Justice's IG equivalent, the Office of Professional Responsibility, are to investigate and identify for possible criminal prosecution the source of "leaks" -- usually anonymous whistleblowing disclosures. On balance, IG's have a mixed track record at best of responding to whistleblowers. Even offices with statutory independence are staffed predominantly by employees from the "old days," when the IG was management's eyes and ears. That meant that if the agency chief wanted to get the facts and act against wrongdoing, the IG performed as a law enforcement agency. If the agency leader wanted to cover up a problem, the IG report assembled the case for the defense and the IG acted as a hatchetman to do the dirty work of discrediting the whistleblower. Traditionally it has not been uncommon for an IG to investigate the whistleblower rather than his or her charges. To some extent these traditions are changing. But whistleblowers are well-advised to seek expert advice or retain an attorney, even for coaching purposes, before going to an Inspector General. You should pin down how the IG will conduct the investigation before sharing your concerns and evidence. You should insist that all agreements, plans, and schedules be confirmed in writing, rather than handling matters informally or leaving anything to trust. Under some circumstances, it might be wise to approach the IG armed with the extra credibility of a substantial likelihood finding and an order to investigate from the Special Counsel. Congress It would be nice to think that our elected officials only represent each one of us as individuals, but members of Congress are pulled by all types of constituent groups, including major industries in their state or district. For that reason, it is important to do some research before blowing the whistle to your local member of Congress. Some questions you might ask are: Are there any contractors in your area of whistleblowing or large military bases in his or her district or state? Find out how the member feels about your particular agency or company before you discuss anything and ask about their methodology in a case load. Also investigate their past track record in battling the system with other whistleblowers and call those people to see if they were satisfied with the member of Congress's tenacity in fighting the system and protecting their right to blow the whistle. If the office does not have a strong record of supporting whistleblowers, you may think twice about trusting that member. Some members of Congress simply pass complaints about the bureaucracy back to the agency to investigate itself. This action is rarely successful -- the matter is often bucked down to the perpetrators of the fraud. To make matters worse, members of Congress may not be willing to protect your identity, even if you ask them to, because of the inexperience of the congressional staff in dealing with the bureaucracy or the individual member's courage to stand up to a large bureaucracy or company. Whistleblowers often make the mistake of thinking that their best ally to expose the fraudulent activity is the authorizing committees in the Congress that give the bureaucracy its money. Although some congressional committees have a vigorous oversight staff, many of the members of the committees are captured by the same influences that pressure the individual member of Congress. For example, the Pentagon procurement scandals in the 1980's have shown that cozy relationships exist between some members of congressional committees and contractors. The Armed Services Committees in the House and the Senate often have members appointed to them because of the large defense contractors or military installations in their state or district. If a member of Congress does not have much military activity in their state or district when they are first appointed to the committee, Pentagon money gradually gravitates to their area because of their own efforts or because the Pentagon and the defense contractors are trying to win influence with the committee. In addition, in 1987, the Chairman of the House Armed Services Subcommittee on Procurement and Military Nuclear Systems received 80 percent of his yearly honoraria from speeches from defense contractors. His is not an isolated case: 6 of the other 18 members of his committee also received more than 50 percent of their yearly honoraria from defense contractors. It also is important to remember that as an institution, Congress can be as unwilling to hear bad news as the Executive Branch. It is true that some of the major scandals of the 1980's have been exposed with the help of certain congressional committees but once the headlines fade, it is rare that the Congress as a whole really wants to shake up the status quo and pass meaningful reform. It was Congress which passed the 1978 Civil Service Reform Act that ultimately stripped whistleblowers of their constitutional remedies. Congress has been unwilling to challenge consistently the Executive Branch's claim to exclusive power in the area of national security. (see DEFENDING YOURSELF IN THE BUREAUCRACY OR COMPANY) So don't forget that Congress as a whole may be as willing to cover up problems as the Executive Branch. There are some members of Congress who are interested in the whistleblower's plight and can offer you some protection. When properly motivated members of Congress have rallied to the whistleblower's cause. In addition, certain members of Congress provided the clout to protect individual whistleblowers from reprisal. It is a crime to interfere or harass a congressional witness but the Congress has made the mistake of rarely enforcing the law thus emboldening the bureaucracies to strike back at the whistleblower for their disclosures to Congress. As we have seen, congressional intervention in the Thom Jonsson case prevented the Air Force from further harassing Airman Jonsson (see Incentive Suggestion Programs). But congressional protection of individuals is the exception and should not be depended on. If you plan to go to a member of Congress, you first need to check that individual's record very closely. If you decide to contact a member of Congress, it is important to know what to include in your correspondence and how to package it: * Before you write to any member, make sure that you have thoroughly checked their track record. You need to make sure that you do not divulge any information to them before you take this important step. Find out if they have helped any whistleblowers before and if they followed up once the headlines faded. You can do this by following their past cases in the papers. If you find that they are not still working on the problem or trying to protect the whistleblower, you need to be wary. * Keep it short. Most staff members won't read more than a page. If it is impossible to condense your letter to two pages or less, it is a good idea to prepare a one page fact sheet as well. At the beginning of your longer letter, flag the fact sheet for the staff member. * Make it clear early in your letter whether you want your name or documents to be shown to anyone in the bureaucracy. Otherwise, your letter may be processed right back to the agency where you work or that oversees your contractor. Also, make it clear to the reader that if you need to remain anonymous, you request that they take caution and talk to you before they take any steps on your letter. * In a clear and concise way, state your factual case in the beginning. Enclose the most important documents but don't send a huge stack. Make a list of other documents that you have and don't send originals. Keep your story clear of government jargon and don't assume that the staff member who will be reading the letter will understand how your bureaucracy or company works. If you need to send a longer statement, separate it from your cover letter which should be no more than a two page summary. * It is alright to talk about any harassment or retaliation that you have received, but put it at the end of the letter and don't dwell on it. Also, at the end of the letter, make suggestions on where to go to investigate and get more collaborating documentation. Let them know if there are any investigative agencies that are working on your case and whether or not you think they are successfully uncovering anything of value. * Make sure that the staff member has a way to reach you during working hours. If you can't talk to them at the workplace, find a way for someone to take a message for you and return their call during your lunchtime. * If you haven't received a reply within two weeks, call the office in Washington and ask to speak to the Legislative Assistant (LA) who covers your area. Congressional staff members are very busy and the most successful whistleblowers know when to keep calling a staff member and when to wait. Don't be a pest but make sure that you do not fall through the cracks. Don't demand attention and be polite at all times. The Congress is also a large bureaucracy and it can be as frustrating as any other agency. Watchdog groups have good working relationships with various members of Congress and you may be more successful going through them. These watchdog groups can play the role of advocate for you and sometimes can keep you anonymous. The Press One of the most obvious whistleblower outlets is the press (which includes television news). On the surface it seems to be the easiest and quickest way to let American taxpayers know that their dollars are being wasted. Indeed, it can be very effective when handled properly through a responsible reporter. But not all reporters are willing to take the time and effort necessary to publish your allegation and maintain the anonymity of their source. To protect yourself, you need to choose a reporter carefully. That involves doing some research. Find out who covers your area of expertise for each of the major newspapers and networks and look at their work. That means either asking reporters to send you copies of stories they have done on your general area or going to the library and reading back copies or the newspapers or magazines. It is important to have an idea of how a reporter will handle your story before you give it to him or her, so make sure you like the reporter's approach to whistleblowing, waste and fraud, and how they cover the agency to which they are assigned. If you find that the reporter's stories just seem to echo what is handed out of the public relations office of the agency or company, it is not likely that they will do the type of questioning or investigating that you need. Keep looking until you find a reporter whose approach closely reflects what you hope to achieve by blowing the whistle. You also have to decide whether to contact a local reporter or the national press. There are advantages and disadvantages to each one. The local reporter will be more interested in your story because of its local implications but he or she also will have more pressure not to print the story because the company or the bureaucracy has a powerful economic base in the local area. Local reporters will be able to follow up by speaking to local people who can anonymously back up your claims and perhaps provide more documentation. You need to read your local paper and judge whether you think they have shown any tendencies to expose local entities. If you do have a good local story, it gets the company's or bureaucracy's attention but the story may then be ignored in Washington. A national story can also be effective but it is often hard to get the national press in Washington to pay attention to things that do not have direct impact on the Washington political scene. Your story needs to affect directly the agencies in Washington or involve a large government program or corporation to be sure that a national outlet will be interested. It is also harder for reporters in Washington to verify your story from Washington and it is rare that they will have the time or the money to come out to your area. A good compromise is if your local paper is part of a national newspaper chain that has a Washington office or on a national news wire that gives the story outlets other than your local area. Newspapers in a chain are less likely to be intimidated by local economic pressure and your story will appear nationwide. Several well-known chains include Knight-Ridder newspapers and Gannett newspapers. Call your local papers and find out if any of them belong to a chain that has a Washington office or are on a major newswire such as the New York Times newswire. Once you have chosen a reporter, it is important for you to know how to approach the them and what the reporter can and cannot do for you. First you should agree to the terms of working with them before any information is given. Also, whistleblowers often have unrealistic expectations from reporters and this can damage your working relationship. Here is a list of what reporters can and cannot do for you: * Reporters can give you anonymity. A good reporter will not reveal his sources even to a court of law. However, before you tell your story to a reporter, you must set the rules of how you want to be identified. -- If you agree to speak to a reporter "on the record", he can identify you by name and your position in the government or industry. -- You can agree to speak "off the record" where the reporter cannot use your name but can characterize your position (for example, a quality engineer in the MX program). Unless you are careful, that characterization could be very revealing to the people who are trying to identify the source of the leak. You can agree to talk to a reporter off the record but with the provision that you agree how you will be characterized to protect your identity. -- Another way to speak to a reporter is "on background", which means that the reporter cannot characterize you in any way but must write about the information in a generic sort of way. This way of speaking to a reporter is the safest way but it makes it more difficult for the reporter to write a story that will get published. Reporters, of course, will try to get you on the record and will assume you are on the record unless you designate differently. WARNING: Many reporters have different definitions for the above terms so it is important to define your terms before you tell them your information. Make sure that the terms that you agree on apply to your entire conversation and perhaps followup conversations. Don't expect a reporter to honor rules after a conversation. Most will but you should not take the risk. You must weigh your need for protection against the need to tell the reporter enough for him or her to write the story. This is a judgment call that you will have to make. * It will be in the reporter's best interest for you to commit to giving him or her the story exclusively. This means that you will not talk to another reporter until your reporter prints the story. This can be useful for you because the reporter will have a motivation to work harder on it. But it can also backfire on you because the reporter may think that by "owning" the story, he or she has all the time in the world to work on it and your issue can wither on the vine. When you meet with a reporter, they often will assume that you are working with them exclusively. Ask at the beginning of your meeting whether or not the reporter expects an exclusive arrangement. Most reporters will say yes. To protect yourself, you should work with the reporter to set a reasonable time period for your exclusive relationship. The amount of time will depend on the nature of the story, but the reporter and you should agree to a time length that gives the reporter enough time to do the story but does not allow the process to be stretched out until the issue becomes stale. If something else comes up, you always can agree to extend the deadline. Setting a time period may irritate the reporter, but you should try to protect yourself by suggesting it in a nice and reasonable way. * Even if the reporter is interested in writing the story and spends a great deal of time on it, don't assume that it will automatically get printed. Reporters have to sell their stories to their editors and publishers and the more controversial the story, the more the management people of the newspaper or television station w稈`JXp蜿\N8祗B"A?M唸r2莉member that a reporter does not always have control over his or her stories and there is an element of politics in journalism as everywhere else. The owners and the managers of newspapers and television stations feel political and monetary pressures as in any business. However, don't give up on a story because as long as the reporter wants to have it published there is still a chance. * Don't expect reporters to be crusaders for your cause. Their job is to examine the facts, talk to people from both sides, and report the story fairly. The majority of reporters will resent it or shy away from you if you try to pressure them to take up your cause. * Don't expect reporters to find a lawyer, or contact the government for you -- although some will offer to help maintain your loyalty. Most want to remain separate from your whistleblower activity and report on the factual parts of your case. * Don't assume that since you are working closely with a reporter that he or she is your friend. Part of their job is to be very friendly and put you at ease so that you are willing to tell them everything you know, and preferably on the record. Many whistleblowers, who already feel lonely and isolated, mistake this as friendship and expose themselves by saying too much. Working with a reporter is a business relationship and you should remember that at all times when you are with a reporter. Also, if you meet with a reporter at a bar or a restaurant, make sure that you don't drink too much and lose good judgment. Negotiating your terms with a reporter should be done with a clear head. When you meet with a reporter, it is important to come well prepared. That means organizing your documents in an understandable order and making notes for you to follow so that you do not ramble or take too long to get at the meat of your information. Try to avoid starting at the very beginning and telling the story in excruciating detail. Start with a basic outline of your story, showing the documents as you go, and then go into detail in areas in which the reporter is interested. Don't start your conversation by reciting all the injustices that you have had to endure. The best way to impress a reporter with your story (and your motivations) is to give the factual information on the misconduct you have seen and let them ask about your personal hardships. Only volunteer the personal problems that you have had at the end of the meeting, if the reporter has not asked, and keep your statements brief. Make sure that you never embellish your information to a reporter. A common fault of whistleblowers, once they have finally convinced someone to listen to them, is to tell the reporter 110 percent of the story to make their point. The problem with that is the reporter or the bureaucracy can realize that the last 10 percent that is embellished and the rest of your story will appear to be discredited. It is best to tell reporters 80 percent of your solid information and give them leads to discover on their own the last 20 percent. That way people will be impressed that the situation is really worse than you said. After reporters write and publish a story, you should keep them informed about how the scandal is progressing but you should make sure that you don't become a pest in the reporter's eyes. After they write a story, reporters are pressured by their editors to move on to the next story. Reporters often have to fight for the time and newspaper space followup stories on their exposes. If you have been anonymous in your whistleblowing, it is important to remain calm and do not do anything that casts suspicion on yourself. Once a story hits the media, your bureaucracy will begin "damage control," and if you are directly involved in the problem, you may be asked to sit in on the meetings and help plan a coverup. This puts you in a very good position to continue to tell the reporter about a planned coverup of the wrongdoing or if the company or the bureaucracy are legitimately trying to solve the problem. If you are going public with your whistleblowing, you may get more publicity and requests for interviews after the story appears. It is good to take advantage of the extra publicity to shed more light on the subject of your whistleblowing, but you must approach your new found status with caution. The bureaucracy or the company may try to take the focus off of the scandal and make you the issue by trying to discredit you. It is important not to take it personally and become openly defensive. In this situation, the best defense is a good offense. When reporters ask you about your personal fight with the organization, turn the question around and spend time emphasizing the subject of your whistleblowing -- the fraud and waste. When you do talk about the retaliation against you, don't come across as bitter, defensive, or paranoid and don't dwell on the subject. Additionally, strive to stay unruffled and unflappable. Remember, the calmest person in the room is usually seen as the most credible. It becomes quite flattering suddenly to receive all this attention, but remember: one of the ways that a bureaucracy or a company can discredit you to others is by portraying you as a self-glorified publicity hound. Don't give them any ammunition by letting the publicity go to your head. A little humbleness can go a long way in making your case. If you cannot make up your mind about what approach you may want to take, you can contact the Project on Military Procurement and the Government Accountability Project for advice. Non-Profit Watch-Dog Organizations If blowing the whistle to a member of Congress, the press or a hotline seem too risky or unfruitful or you aren't quite sure that this handbook has given you enough details to make a decision, you can call upon non-profit watch-dog organizations either for advice or to use as your main avenue in blowing the whistle. There isn't an abundance of these types of organizations. The Project on Military Procurement (PMP) and the Government Accountability Project (GAP), who produced this handbook are dedicated to trying to help whistleblowers with their problems. PMP and GAP can help you build a coalition of groups to help you because of their unique interest in the subject matter. It often takes a coalition effort to overcome the political clout of large government bureaucracies and corporations. PMP and GAP have different goals and areas of expertise. A description of each follows: The Project on Military Procurement PMP's goals are to reform the Pentagon procurement system by exposing on-going waste, fraud and abuse to the press, Congress and the public; to provide an effective and reliable national defense while saving the taxpayer as much money as possible; and to assist whistleblowers in the military establishment during their struggles to expose abuses. PMP has been investigating whistleblower claims for eight years. The whistleblowers come from all areas of defense, the DOD, the defense industry and military personnel. PMP has been instrumental in exposing spare parts overpricing, falsification of the weapon testing process, cost overruns in weapon systems, fraudulent procurement processes and faulty weaponry. PMP sources choose whether to be a public or anonymous whistleblower. No whistleblower has ever lost his job as a result of blowing the whistle through PMP. PMP takes the burden of ensuring the individual of confidentiality and arranges, on receipt of documentation of his or her allegations, for the whistleblower to meet with or talk with a researcher at PMP. We also have a group of military sources that advise us on an anonymous basis. We turn down some individuals because they lack documentation or when the whistleblower decides that the risk is too great. Once a decision has been made by the whistleblower and PMP to move forward, PMP helps the whistleblower decide whether to go to the press, the Congress, the DOD, or to file a false claims suit. PMP works with several lawyers who are looking for clients to file false claims suits and acts as unpaid advisors to the whistleblowers and lawyers in the investigation process of a law suit. We want to expose and help initiate reform while providing the maximum protection possible for our whistleblowers. PMP's policy is that no expose' is worth a whistleblower's career and peace of mind. PMP has been instrumental in exposing spare parts horror stories such as the $7400 coffee brewer and the $455 arm rest. We have also revealed, for example, an illegal lobbying plan for the C5B cargo plane, an internal investigation report showing defects in the Phoenix Missile, and a draft Inspector General report that found "work measurement" an effective way of saving defense dollars. PMP is interested in investigating and revealing all aspects of getting "more bang for the buck." To contact the Project on Military Procurement call or write: Dina Rasor, Director Project on Military Procurement 613 Pennsylvania Avenue SE Washington, DC 20003 202-543-0883 or contact our computer bulletin board SNAFU with your personal computer. The number for SNAFU is 202-547-6238 The Government Accountability Project GAP has been providing legal support for whistleblowers since 1976. GAP helps defend whistleblowers against reprisal, assists them in pursuing their dissent more effectively, offers informal assistance and referral services when formal representation is not possible, advocates stronger free speech laws and teaches the law of dissent through scholarly works and law school clinical programs. Unlike the Project on Military Procurement, GAP does not formally specialize in any particular issue area. Due to the quantity of requests, however, GAP has concentrated on certain issues such as safety hazards from commercial and military nuclear facilities, and meat and poultry inspection and increasingly, the false conflict between national security and freedom of speech. Whistleblowers who call GAP for help first consult with the Intake Director, who prepares a short summary of the individual's objectives and relevant facts. GAP receives from 200-500 fresh requests for help per year and can only take around 5 new cases annually, since it often takes years to complete service to existing clients. Additionally, whistleblowers connected with ongoing issue campaigns receive priority for representation, since work on those cases complements assistance to other clients whose cases are pending. As a result, most frequently GAP offers informal assistance such as coaching, describing the range of options and relevant laws, finding an attorney, or referrals to responsible congressional oversight committees, media or constituent groups who should be aware of the whistleblower's concerns and fate. GAP's basic strategy is to unite isolated whistleblowers with the majority of citizens who should be benefiting from their dissent. If there is space in GAP's docket potentially to help an intake, an attorney will conduct a verification study to determine whether -- 1) the whistleblower's dissent is reasonable; 2) the issues are significant enough to be worth the harassment the employee faces by pursuing them; and 3) the whistleblower and GAP have a fighting chance to make a difference. If the case survives the verification study, the organization considers formal representation based on additional factors such as whether GAP has a unique contribution to make and whether it can be funded. GAP traditionally has not charged for attorney time and evaluates whether representation would be covered by an existing or potential foundation grant. But clients are expected to cover expenses, such as telephone and travel costs. Financial pressures are forcing a reconsideration of this policy, however, particularly if the representation is not part of an issue campaign that is already funded. Successful issue advocacy campaigns have included challenges to the Zimmer and Midland nuclear power plants, which had to be converted to coal facilities after whistleblowers exposed systematic quality assurance breakdowns. GAP investigations also caused extensive re-inspections and repairs of suspect components at the Comanche Peak, Diablo Canyon and Lasalle nuclear facilities. Whistleblowers represented by GAP have exposed massive radiation leaks at the Fernald, Hanford and Knolls military nuclear facilities. Dissent by over 100 GAP clients who are federal meat and poultry inspectors stopped various USDA plans to gut or eliminate current food inspection programs. GAP defends individual whistleblowers against reprisal through serving as co-counsel for that aspect of a larger employment dispute, authoring friend of the court briefs, and direct representation where a case is particularly significant in terms of its chilling effect during an issue campaign or as a civil liberties precedent. Among GAP's more well-known, successful clients are Pentagon cost control expert Ernest Fitzgerald and GSA National Capitol Regional Director Bertrand Berube, the highest ranking whistleblower in the civil service to challenge a firing successfully. To contact the Government Accountability Project call or write: Tom Devine, Legal Director GAP 25 E St. NW Suite 700 Washington, DC 20001 (202) 347-0460 To seek legal assistance, address correspondence to the Intake Director at GAP. DEFENDING YOURSELF IN THE BUREAUCRACY OR COMPANY Despite admonitions, warnings and threats you might receive, it is your constitutional right to blow the whistle and be protected after doing so. Government employees are protected under the first and fourteenth amendments of the Constitution, which prohibits federal, state and local governments from retaliating against workers who express dissent publicly or privately to their supervisors. Protection for the private sector employees has developed over the past 25 years under individual state laws. However, neither protection is comprehensive or enforced by the government agencies and the courts. There exists a patchwork of specific employee protection laws that cover environmental issues, health and safety, labor relations, and civil service. Legislation pertinent to whistleblowers is explained below. Whistleblower Legislation Civil Service Reform Act of 1978 The 1978 statute gave the OSC a broad mandate and almost total discretion, in large part, to protect freedom of speech. Unfortunately, it degenerated into what one Senate staff member calls a "legalized plumber's unit" -- the administration's most effective weapon to identify wounded dissenters who come in for help, and then finish them off. Since its creation, the OSC has turned down 99 percent of whistleblower cases without attempting disciplinary or corrective action. Since 1979, the Special Counsel has not pursued litigation through a corrective action hearing to restore a whistleblower's job. From 1981 to 1986, the total number of requests for stays, or injunctive relief, was approximately the same as in one previous year, 1980. This is no surprise after considering recent Special Counsels' attitudes toward dissent. The office was created to guard against Watergate-era techniques taught in the Malek-May Manual to harass unresponsive employees out of their jobs. However, former Special Counsel Alex Kozinski used the Malek-May techniques in a successful purge that convinced nearly half his staff to resign, including approximately seventy percent of headquarters attorneys and investigators. Kozinski was so intolerant of criticism that he issued a gag order to his public relations officer and ordered employees not to speak with his predecessor, Mary Eastwood, before he attempted to fire her. Kozinski also shared his techniques with others. Using the OSC's own investigative manual as a guide, he taught a course for federal managers on how to fire employees without OSC interference. He tutored then-Secretary of the Interior James Watt's assistants on how to avoid conceding first amendment violations and still fire whistleblower Jack Spadaro for exposing mine safety violations. Kozinski is now a judge in the Ninth Circuit Court of Appeals. Initially, as a protege of former Attorney General Ed Meese, he was being groomed for the Supreme Court. After his record was exposed as a hatchet man against whistleblowers, he was barely confirmed for the court of appeals -- squeaking through 54-43. Publicly, former Special Counsel William O'Connor was less subtle, branding whistleblowers as malcontents and comparing them to bag ladies and mental health patients. O'Connor aggressively disclaimed any responsibility for reprisal victims, characterizing them as "by-standers" and "witnesses." Mr. O'Connor explained that his job was to serve the system, not individuals. But the merit system is an empty phrase without human beings. Both Special Counsels defended their track records with the same excuse -- neither met a whistleblower who deserved or needed the CSRA's remedial litigation. They claimed vindication from the results, asserting that whistleblowers turned away by the OSC also lost everywhere else. However, that is false. For example, two successful MSPB whistleblower appeals (out of four in ten years) vindicated employees whom the Special Counsel had turned away, including the Spadaro case. The case of another OSC reject, Vince Laubach, was so strong that Interior settled his grievance with reinstatement, back pay and damages. On balance, through 1988, whistleblowers prevailed in seventeen successful cases of whistleblower litigation, in many instances through labor-management arbitration, while the OSC had been dormant. Messrs. Kozinski and O'Connor abused their discretion by substituting new agendas for explicit statutory language and congressional intent. For example, in 1984, the Special Counsel honored the law's mandate to investigate reprisal allegations only eight percent of the time. Ernest Fitzgerald, who initially became known for blowing the whistle on cost overruns in the Air Force's C-5A aircraft, recounts in connection with a more recent case involving alleged defense procurement fraud, "I kept trying to give the investigators documentary evidence and they kept giving it back to me." Another whistleblower reported calling the office eighty-nine times before anyone would speak with him to tell him his case had been closed. Fitzgerald's frustration involved the case of George Spanton, a Pentagon auditor whom the agency tried to force into retirement through a retaliatory transfer after he revealed systematic violations of law at a major defense contractor, Pratt Whitney. Ironically, the Spanton case is credited, or blamed, with preventing the OSC's dismantling. The Special Counsel boasted that the Spanton case was a major success, because it obtained an administrative order to fire top Defense Contract Audit Agency officials for the retaliation. The question is whether it was a successful prosecution or an effective coverup. Special Counsel William O'Connor refused to pursue evidence indicating that Pratt and Whitney was just an anecdotal illustration of systematic corruption throughout the defense industry. Similarly, he stopped his investigators from following up on strong evidence that Defense Secretary Weinberger was personally responsible for silencing Spanton, indicating a Cabinet level coverup. As Fitzgerald later testified, the Special Counsel curtailed the Spanton case at a point analogous to where Earl Silbert had tried to stop the Watergate investigation -- declaring victory by scapegoating minor league figures like Gordon Liddy and James McCord. If the OSC hadn't stopped short, the 1988 Pentagon corruption scandals might have emerged two years, and tens of billions of taxpayer dollars, sooner. The Special Counsel also might have won the case. By pulling its punches the OSC avoided the best evidence of reprisal, and eventually the case was overturned in court. In the end, the Special Counsel accomplished nothing in the Spanton case except to save itself. Perhaps those who were ignored were lucky: the OSC did not turn on them. As Sen. Carl Levin, D-Mich. commented about the case of Bert Berube at the General Services Administration, the Office spent more than five times as much time investigating the complainant as investigating the complaint. Although the OSC routinely refuses to share its closed case files with complainants who try to continue fighting in another forum, the office has used the files as dossiers to help blacklist whistleblowing employees who give up on their original jobs and seek renewed employment. For example, the OSC recommended during an Office of Personnel Management background security check that former Treasury Department attorney Elaine Mittleman not be hired for a new government job, in part because her superiors suspected she had leaked documents to Congress and the press, which in theory is protected speech. Ms. Mittleman first lost her job after dissenting against Treasury's failure to enforce the law requiring the Chrysler Corporation to file reports on how it spent its guaranteed loans from the federal bailout, charges later confirmed by the Inspector General. The Office of the Special Counsel refused to interview her personally. O'Connor exercised legal double-speak to transform protected activity into offenses justifying dismissal, such as explaining that dissent against agency policy is insubordination. This announcement legally eliminated significant dissent. He sternly warned that his agency would not be a haven for blackmailers, his term for those who engage in what he labeled as "shake-downs" by threatening to exercise appeal rights. This policy frowned on the due process clause. The new Special Counsel, Mary Wieseman, has introduced personal courtesy as a leadership style. In terms of track records and techniques, however, at least prior to passage of a new Whistleblower Protection Act of 1989, the current OSC was barely distinguishable from the tenure of the previous two Special Counsels. After approximately a year into Ms. Wieseman's terms, she testified that the OSC had formally or informally obtained help for 6 out of 176 government employees, meaning that until that time over ninety-six percent had not been assisted. Further, frustrated complainants continued to report that the OSC channeled evidence to the agencies that were the targets of reprisal charges; delegated the investigatory authority for key witnesses to the office in the target agency that was responsible for defending against the reprisal charges; failed to create a verifiable record and then misrepresented the position of supporting witnesses; refused to inform the complainant of the evidence which had to be rebutted, a charge confirmed by at least one witness as well; and generally appeared to invest more resources investigating the whistleblower and his or her supporters, instead of the alleged retaliation. The OSC remains a leading agency in practicing secret law. Ironically, it employs this approach in determining whether to defend those who allege reprisal for exposing coverups of misconduct. The OSC has boasted that one of "the most extended and intensive investigations we've ever done" involved Veterans Administration police officer John Berter, who was fired after challenging nauseating police brutality of minorities and veterans. The question is -- who was the OSC investigating? The OSC stood by passively until Berter complained in Rep. Schroeder's hearings on proposed whistleblower legislation. At that point, the OSC went to work. But according to a House civil service subcommittee staff investigation, the OSC proceeded to attack Berter's "motives, his allegations, his doctors, his supporters, his witnesses, the victims, his skills and a prior FBI report that found substance to his charges." After six witnesses submitted affidavits repudiating the OCS's characterization of their testimony, the office refused to tell Berter the evidence he needed to rebut the charges. In a closeout letter that failed to discuss any of the 27 affidavits submitted by Berter from victims or witnesses, the OSC dismissed all of his charges, at most conceding some "peripheral" validity. Although the OSC approved Berter's firing, two national good government organizations -- the Cavallo Foundation and the Giraffe Society -- honored him with awards for his courage in exercising First Amendment rights. Lack of enforcement, combined with the OSC's proclivity for biased investigation, has led to an increase in fear of reprisal among prospective whistleblowers. In 1980, 19 percent of federal employees who witnessed but did not report fraud, waste and abuse, cited fear of reprisal as the reason for remaining silent. By 1983, the figure had jumped to 37 percent. In 1985, the MSPB admitted in a press release that "[t]here has been a significant increase in the fear of reprisals, the reason given for not having reported fraud, waste, and abuse." Clearly, if the OSC was cracking down on offending agencies, instead of reinforcing them, fear of reprisal would be on the decline, rather than increasing. The most fundamental problem with the Civil Service Reform Act of 1978 is that it took basic constitutional rights away from civil servants and gave the job of protecting them to the Special Counsel. By stripping whistleblowers of the right to defend themselves in most cases, the new law left them at the mercy of a hostile bureaucratic welfare agency for personnel disputes. Even when they could control their cases, it was in the Merit Systems Protection Board, a minor league, hopelessly politicized administrative forum. Previously federal workers had access to the courts to challenge First Amendment reprisals, where they could pursue suits for punitive damages in a jury trial before their peers. Although Congress had not stated it was abolishing constitutional remedies when it passed the 1978 statute, it also did not explicitly preserve them. Faced with this ambiguity, in 1983 the Supreme Court leaped at the chance to wash its hands of federal employment disputes. In Bush v. Lucas, the Court held that whenever a Civil Service Reform Act remedy is available, the Constitution is not. Although the Reform Act's primary sponsors filed a friend of the court brief protesting that they had intended no such result, Congress has not acted to overturn Bush. Whistleblower Protection Act of 1989 After 1982 Congress increasingly recognized that its 1978 free speech shield had nightmarishly backfired, actually providing a clear channel for increased harassment. In 1982, Special Counsel Alex Kozinski was forced to resign after the revelations that he was teaching a course for federal managers on how to fire whistleblowers without getting caught. Representative Patricia Schroeder also introduced a bill to abolish the OSC, which had become a Trojan Horse for whistleblowers -- a legalized dirty tricks unit that identified wounded dissenters seeking help and then teamed up with employers to finish them off. Although the bill and momentum to abolish the OSC died after Kozinski's resignation, Congress went back to the drawing board. No one could credibly claim the system was working, due to accelerating disclosures of continuing civil service abuses and intensifying exposures of bureaucratic corruption that typically had been covered-up for years. After three congressional hearings, in September 1986 the House unanimously passed a Whistleblower Protection Act. The Senate did not act on the legislation, however, due to time pressure and an Administration veto threat. Two more hearings later, in October 1988 the House and Senate unanimously passed a nearly-identical bill. After appearing to change his mind and praising the legislation in a letter to Congress, President Reagan waited until Congress adjourned and then pocket-vetoed it. Congress did not back down. Congressional negotiators persuaded the Bush Administration to accept an even stronger bill, and on March 19 it again passed unanimously. The Whistleblower Protection Act of 1989 became effective July 9. The jury is out as to whether the new legislation will be any better than its counterproductive predecessor. On the plus side, the new law creates the strongest language on the books affirming freedom of speech. It also represents an unprecedented mandate for the law of dissent. It is rare that Congress passes anything unanimously, let alone twice in six months. It is even rarer to find a consensus between the White House, Congress, labor and civil liberties groups. By contrast, however, whistleblowers still are burdened by the weakest remedies. They still are not entitled to a jury trial by their peers, or to punitive damage remedies like all other Americans -- even convicted felons -- can receive when the government violates their constitutional rights. Other than the Supreme Court, they only can appeal adverse bureaucratic decisions to one appellate court, the Federal Circuit, which has an obsessively hostile track record of ruling against whistleblowers and whose precedents butchered freedom of speech. Whistleblowers will continue to be at the mercy of the MSPB and Special Counsel, whose abuses led to passage of the new law which they will have a monopoly to implement at the administrative level where nearly all the action will be. In short, the new rights will be no stronger than the will of discredited civil service agencies to enforce them. The new law has ten major provisions to strengthen the rights of public servants. It -- 1) provides teeth for the Government Employees Code of Ethics; 2) closes the loopholes in legal protections; 3) defangs the Office of the Special Counsel; 4) gives whistleblowers control of their cases; 5) eliminates the legal motives test; 6) reforms unrealistic legal burdens-of-proof; 7) provides interim relief for those who win an initial hearing; 8) gives a transfer preference to victorious whistleblowers; 9) strengthens whistleblower disclosure channels; and 10) saves alternative statutory remedies. Each of these changes are discussed in more detail below. 1. Enforcing the Government Employees Code of Ethics. The law forbids agencies from acting against any employee for declining to engage in illegal activity. Section 4(b), 5 USC 2302(b)(9). Prior law required employees to follow orders and protest after the fact, which meant they could be fired for refusing to be lawbreakers. The change gives teeth to the principles of the Government Employees Code of Ethics. 2. Closing the loopholes in legally-protected dissent. The law specifies that "any" whistleblowing disclosure is protected if the contents are significant and reasonable. Section 4(a), 5 USC 2302(b)(8). This eliminates the current Swiss cheese definition of whistleblowing. Prior law only protected "a" disclosure, which the Office of the Special Counsel and Federal Circuit Court of Appeals interpreted as an excuse to exclude dissent unless the whistleblower was the first to expose a problem; could prove his or her motives were to help the public, and not self- interest; was accusing specific officials of intentional misconduct; first went through the agency chain-of-command; phrased the dissent as an accusation rather than a question or request for information, or overcame other bureaucratic loopholes that the OSC and Merit Board created as necessary to rule against dissenters. 3. Defanging the Office of the Special Counsel. Although created as the government's defender of those victimized by merit system violations called prohibited personnel practices as discussed above, the OSC earned a well-deserved reputation as the administration's primary weapon against whistleblowers. The new statute requires the OSC to protect whistleblowers and not act contrary to their interest. Section 2(b)(2)(B). More specifically, the OSC must -- provide status reports to employees seeking help (Section 3, 5 USC 1214(a)(1)(A) and (B)); stop working on a case after 120 days without the employee complainant's consent (Section 3, 5 USC 1214(a)(4)); refrain from leaking the employee's evidence or OSC-obtained information about the complainant to the employer or others during or after the investigation, unless the employee consents (Section 3, 5 USC l2l2(h)); refrain from disclosing the identity of an employee making a whistleblowing disclosure without prior consent, even if "the Special Counsel contends violating confidentiality is necessary for the OSC to carry out its duties (Section 3, 5 USC 1213(g)(2) and (h)); refrain from settling a case without including the employee's comments and gaining legal approval (Section 3, 5 USC l2l4(b)(2)(C)); explain the evidence supporting as well as opposing the employee's reprisal charges, in any letter closing out a case (Section 3, 5 USC l2l4(a)(2)(A)); and refrain from intervening in related appeals without the employee's consent. Section 3, 5 USC 1212(c)(2). Further, any negative OSC findings cannot be introduced in the subsequent MSPB appeal. Section 3, 5 USC 1214(a)(2)(B). These protections will shield all federal workers from OSC abuses, not just whistleblowers. 4. Giving whistleblowers control of their cases. For many common forms of reprisal, whistleblowers had a choice of the OSC or nothing. In addition to piling on against reprisal victims, the OSC has practiced "secret law," with employees unable to learn the evidence used against them or to confront their accusers. Under the new law, all federal workers or applicants can challenge whistleblower reprisals through an on-the-record, due process hearing at the Merit Systems Protection Board. Employees who use their new hearing rights must first file complaints with the Special Counsel for 120 days, but if there is no decision after that time the employee is free to take control of the case by filing for a hearing. Section 3, 5 USC 1214(a)(3)(B). Similarly, if the OSC turns down the complaint on an allegation not previously appealable, the employee can file for a hearing within 60 days. Section 3, 5 USC 1214(a)(3)(A). Further, employees can file their own action to seek temporary relief through an administrative stay against a threatened or ongoing whistleblower reprisal. 5 USC 1221(c). 5. Eliminating the legal motives test. Under prior law whistleblowers had to prove that retaliation was a "predominant" or "motivating" factor in order to establish an initial case. This was the most frequently-cited reason why the MSPB ruled against whistleblowers. It's almost impossible to prove a manager's hostile state-of-mind without a confession. Under the new law, whistleblowers only will have to prove that dissent was "a contributing" factor in the job action (Section 3, 5 USC 1214(b)(4)(B)(i) and 1221(e)(1)), and are explicitly relieved of having to prove that the agency had retaliatory motives. Section 4, 5 USC 2302(b)(8). The definition of contributing factor is the cornerstone for the new legal groundrules. To underscore its mandate, congressional leaders repeated the definition five times during the floor debate preceding unanimous Senate and House passage of the new law. They explained that "a" factor and "a contributing" factor both have the same definition. The terms mean "any factor, which alone or in connection with other factors, tends to affect in any way the outcome of the decision." The adjective "contributing" pertains to a factor's relevance in the personnel action, not to its significance. 6. Reforming unrealistic legal burdens-of-proof. Under past law whistleblowers had the burden throughout their legal challenge to prove a prohibited personnel practice by a preponderance of the evidence. Under the new law once an employee establishes an initial case that whistleblowing was "a contributing" factor in the personnel action, the burden-of-proof shifts to the agency to prove by "clear and convincing evidence" -- one of the most difficult standards in civil law -- that it would have taken the same action anyway on independent grounds. Section 3, 5 USC l2l4(b)(4)(B)(ii) and 1221(e)(2). This also reverses the MSPB's precedent in the Berube decision that whistleblower firings are legal if the agency "could have" acted on independent grounds. 7. Interim relief. Under prior law employees who prevailed at an initial MSPB hearing stayed off the job and off the payroll while the agency pursued an appeal to the full Board. Under the new law, whistleblowers or others who win at the initial hearing must be returned to the job or at a minimum the payroll during the appeal. Section 6, 5 USC 7701(b)(2). 8. Transfer preference. Legal victories for whistleblowers have been hollow when they were returned to hostile, vengeful supervisors whom they had just defeated. Typically they soon were fired again on new charges. The new law allows whistleblowers who win to get preference for a new job and a fresh start. Section 5, 5 USC 3352. 9. Strengthened whistleblower disclosure channels. The new law forbids the Special Counsel from leaking a whistleblower's charges back to the target agency, unless the OSC has the employee's consent or rules the dissent is reasonable and orders the agency to investigate and report back. Section 3, 5 USC 1213(g)(2). When the report comes in, the new law requires the whistleblower's critique to be included in all public releases and files -- which is important since most agency self- investigations produce self-exonerations. 5 USC 1213(e)(3). 10. Saving alternate statutory remedies. As discussed above, The Bush v. Lucas Supreme Court doctrine held that an employees' right to file suit in district court for constitutional violations was cancelled by duplicative civil service administrative remedies -- a horrible trade. The recent judicial trend has been to cancel out parallel statutory remedies as well. The new law explicitly protects all other statutory remedies that could be alternatives to the Whistleblower Protection Act. Section 3, 5 USC 1222. Military Whistleblower Protection Act -- 1988 In an effort to give military whistleblowers the same protection from reprisal offered to civilians, Congress passed the Military Whistleblower Protection Act that was introduced by Rep Barbara Boxer (D-CA). It established formal procedures for handling harassment claims within the Services. Military personnel now have the right to an immediate investigation by the Department of Defense Inspector General and a hearing by their particular service's Board for the Correction of Military Records (BCMR) if they are harassed for blowing the whistle on fraud, waste, and abuse. An earlier and unsuccessful military whistleblower bill introduced in 1986 provided for an appeal to a civilian court if the whistleblower was dissatisfied with the BCMR ruling. But the provision was dropped for the 1988 version of the Military Whistleblower Protection Act and was replaced with a final appeal to the Secretary of Defense. The bill is also useful for military whistleblowers because it strengthens their right to communicate directly with the Congress. When the provision for appeal to civilian courts was eliminated from the bill, it lost a great deal of its punch and became little more than a stronger statement of military whistleblower's rights. The enforcing agencies are still the service Inspectors General and the BCMR, two groups that have been seen by military whistleblowers as hatchet men for the services. Hopefully, Congress will review the new policy after a reasonable period of time to see how it may be strengthened. In the meantime, service members should remember that current law prohibits anyone from interfering with your right to communicate with a member of Congress. But don't depend on the Military Whistleblower Protection Act to provide effective protection from reprisals that may arise due to exercising that legal right. State Law Because there is no comprehensive federal law which prohibits employers from retaliating against whistleblowers, some states have adopted common law remedies under the "public policy exception to the termination-at-will doctrine." What this means is private sector employees who work without a contract can no longer be fired "at will" for blowing the whistle. In the past, an employee at-will could be fired for any reason or no reason. But today, 26 states offer protection to at-will employees who are fired for exercising their constitutional right of free speech -- such as the act of whistleblowing. Although each of the 26 states interpret the public policy exception slightly differently, most states classify a retaliatory discharge as a tort (which is a wrongful act for which a civil action can be brought). Consequently, employees who file claims under this cause of action are entitled to jury trials and, if successful, punitive damages (which are damages awarded to you beyond the actual loss, so as to punish the source of the damage). These laws give private sector whistleblowers who have no federal protection from retaliation, a chance to fight back in court. The following states have recognized the public policy exception to the termination-at-will doctrine: Arizona, California, Connecticut, Florida, Hawaii, Idaho, Illinois, Kansas, Kentucky, Maryland, Massachusetts, Michigan, Montana, Nevada, New Hampshire, New Jersey, New Mexico, North Carolina, Oregon, Pennsylvania, Tennessee, Texas, Virginia, Washington, West Virginia, and Wisconsin. Fifteen states have passed statutes protecting whistleblowers: California, Connecticut, Delaware, Hawaii, Illinois, Indiana, Maine, Maryland, Michigan, Montana, New Jersey, New York, Texas, Washington and Wisconsin. Some of these states provide broad protection, while others provide only narrow or limited protection. Consult an attorney to determine what kind of protection is offered in your state and what procedure to follow in filing a claim. Piecemeal Protections -- The Private Sector In states without the public policy exception, corporate employees must contend with a confusing, piecemeal system of scattered free speech laws. The federal government has passed whistleblower protection provisions tucked into sixteen various federal statutes to shield employees who help to enforce those laws. Most involve environmental protection. Unfortunately, while similar each law has its own peculiarities. Further, none cover corporate employees for all public policy dissent, only for an employer's violation of the particular statute at issue. As a result, food industry workers are legally protected for disclosing air and water pollution by their employer, but not for revealing shipments of contaminated poultry or beef from cattle with tuberculosis. A 1987 report of the Administrative Conference of the United States attacked this irrational, patchwork approach to the law of dissent. In an attempt to restore coherence, Senators Howard Metzenbaum (D.- Ohio) and Senator Grassley have proposed an Employee Health and Safety Whistleblower Protection Act to fill the holes by protecting private or state and local employees who help to defend any federal health and safety law. It also would correct unrealistic provisions in current law, such as extending the statute of limitations from 30 days to six months after the discriminatory act. Many workers aren't even aware of their rights for the first 30 days after firing. No government agency has opposed the bill in principle, since a free flow of information from witnesses is essential for law enforcement. But the Bush Administration's position is murky, the powerful meat and poultry lobby is hysterically opposed and the Chamber of Commerce has worked to undercut the legislation. As a result, few co-sponsors have been recruited. The prospects for this reform will depend on the intensity of support from constituencies and citizens groups who would benefit. Unquestionably, there will be increased exposure of corporate crime if private sector whistleblowers have legal protection for trying to prevent health and safety tragedies. BLOWING THE WHISTLE WHEN YOU HAVE A SECURITY CLEARANCE It goes without saying that when you have a security clearance and access to classified documents, you should not give classified documents to uncleared people for any reason. However, that does not protect your clearance when you blow the whistle. There are several new initiatives by the Executive Branch that make it easier for the bureaucracy to retaliate against whistleblowers by taking away their security clearances. Because it is a harder job to fire someone who has told embarrassing truths, the bureaucracy can ruin a career by taking away your security clearance, which often makes you unable to work in your field. In an apparent attempt to prevent whistleblowers from leaking information about government fraud and waste, President Reagan introduced Standard Forms 189 and 4193 in 1983. These forms are known as non-disclosure agreements. The controversial forms demand secrecy pledges from all government employees with access to classified information. The seeds of Standard Form 189 were sown by President Roosevelt in 1902 and further germinated under President Taft in 1909. By 1909, civil servants were prohibited from furnishing information to Congress directly. Taft's order provided that no federal employee "shall respond to any request for information from either House of Congress...." In the years following Taft's new order, Congress acted to neutralize it by passing the Lloyd-LaFollette Act of 1912. This Act provided that "the right of employees to petition Congress ... or to furnish any information to either House of Congress ... may not be interfered with or denied." Allegedly or ostensibly, in response to concerns about leaks of information, the Reagan Administration attempted to push the clock back to 1909 by issuing National Security Decision Directive 84, which initially expanded the use of polygraph tests and ordered prepublication review agreements for federal employees with security clearances. Fortunately, Congress stepped in and pressured the administration by holding hearings on the subject. Ultimately, Reagan withdrew the proposed expansion of polygraph tests. The Administration agreed to withdraw the prepublication review, or prior restraint, provisions but later changed its mind and reneged on the commitment. In addition to the two polygraphs and prepublication review, NSDD 84 included authorization to issue nondisclosure agreements. This led to Standard Forms 189 and 4193. The former was for any employee with a security clearance; the latter for employees with clearance for access to particularly sensitive information. The forms served, in essence, as contracts between the government and the employee. Under the terms of these "contracts," if the employee released any classified or "classifiable" information, he or she breached the agreement, for which the employee agreed to loss of security clearance and criminal prosecution. The term "classifiable" meant all information that could or should have been classified, or "virtually anything," in the words of the federal official responsible for its enforcement. It left open the option for after-the-fact classification and liability. To add insult to injury, under Air Force regulations it is evidence of disloyalty for an employee to exhibit reluctance about signing the form that surrenders his or her constitutional rights. Both forms also prohibited disclosures to "unauthorized" recipients. This barred release unless the agency that created the documents agreed the proposed recipient had a "need to know" the information -- even if that person also had a security clearance and chaired a congressional oversight committee. The net impact was that all whistleblowing disclosures involving information that could be classified under some circumstances had to be submitted for prior review. This was a formula to seal coverups, since few corrupt bureaucrats agree that Congress need to know about their misconduct. SF 4193 reinstated the lifetime prepublication review that the Administration had promised to remove. This is a complete system of prior restraint, and goes well beyond prior Supreme Court decisions. Originally, the Reagan Administration proposed a campaign to get voluntary signatures for SF 189. In November 1986, however, just as the Iran-Contra scandal was breaking, it issued regulations making the agreement a mandatory condition for all employees to keep or obtain their security clearances, a job prerequisite for some 3.5 million people. Senator Charles Grassley went so far as to call SF 189 an effort "to gag public servants" and "place a blanket of silence over all information generated by the government." In response to this threat to freedom of speech, Congress passed section 630 of Public Law 100-202 which prohibited the use of any federal funds for fiscal year 1988 for the implementation of SF 189 or any similar nondisclosure forms. A similar section was included in the continuing resolution for fiscal year 1989 as well. Even after Congress eliminated funds for the implementation of SF 189 in December 1987, the Administration collected 43,000 signed nondisclosure forms. In response, the American Foreign Service Association and seven Members of Congress filed a lawsuit challenging the Administration's refusal to obey the statute. A decision by District Court Judge Oliver Gasch conceded that the law had been violated but also found that Congress had acted unconstitutionally in passing it. Judge Gasch reasoned that as Commander in Chief the President has a monopoly of power to decide restrictions on the disclosure of information sensitive to national security. Judge Gasch further held that Congress' only constitutional authority is to pass penalties to punish those who violate the President's powers. Despite throwing out the statute, in a related decision the District Court found the term "classifiable" to be unconstitutionally vague. Meanwhile the Administration issued new nondisclosure forms -- SF 312 to replace SF 189, and SF 4355 to replace SF 4193 -- which remove the controversial "classifiable" language. Unfortunately, they also ignore the Executive Order requirement for classified information to have markings identifying its secret status before employees can be held liable for disclosure. If an employee is uncertain about an unmarked document's status, the only way to comply with the new, improved gag orders is to "ask the boss" -- a whistleblower identification scheme that creates a Catch 22: either whistleblowers will be exposed to reprisal, or will decide to keep quiet instead of challenging bureaucratic misconduct. The new forms retain and expand the requirement to identify the proposed recipient to a supervisor and to obtain prior approval based on that individual's "need to know" the information. They also retain all the other repressive features of the gag orders, including the claim that the government owns all information covered by the forms about which an employee may learn. Ominously, the government's property right over information is the foundation of the British Official Secrets Act. In 1989 the Supreme Court added to the confusion by unanimously overruling Judge Gasch's decision that Congress acted unconstitutionally in passing the anti-gag statute. Unfortunately, the Court did not decide Congress had the authority to maintain open disclosure channels for whistleblowers. Rather, the justices held that the District Court had not adequately supported its conclusion that SF 312 still violated the statute. The Supreme Court said that until that issue was resolved, any rulings on constitutionality were premature. For the time being, the anti-gag statute is back in effect but its future is uncertain. Enclosed as an appendix is a model addendum that employees may find useful if they wish to modify previously-signed nondisclosure agreements or are ordered to sign a nondisclosure agreement or else forfeit their security clearances. The addendum specifies that the signature does not mean the employee is agreeing to waive any of his or her free speech rights. In January 1989 Congress learned of still another attempt to cancel out the constitutional rights of employees with security clearances. A proposed Executive Order would have reverted to- pre-McCarthy era days by eliminating all due process for decisions to grant or deny security clearances. The employee would not be entitled to any explanation. All an agency would have to do is "just say no." The proposal would have allowed unscrupulous agency managers to force employees out of the government for reasons that would be illegal if disclosed. In short, the proposal had the potential to circumvent the new Whistleblower Protection Act and all anti-discrimination statutes by creating a system of secret employment law for security clearances. After the Administration was unable to defend the proposal at hearings chaired by Representative Gerald Sikorski (D.- Minn.), the plan was withdrawn. A new Interagency Task Force has started work again, however, on overhauling the system of due process for security clearances. Even without the new proposal, background security investigations remain a prime weapon to harass whistleblowing civil servants and government contract employees. Existing due process rights are little more than token. The administrative judges at the Pentagon work for the prosecutors seeking to yank the clearances -- the ultimate example of anti- independence for a legal decisionmakers. Indeed, the Pentagon's system has been plagued by "directed decisions." This means the administrative judge receives an order to rule against the appellant before the hearing begins. The law of security clearances remains the Achilles Heel for freedom of speech. Employees with clearances are well-advised to zealously protect their anonymity if they blow the whistle, because absent a successful political/public relations campaign they have little chance to defend themselves. THE PROMISED LAND -- MAKING FREEDOM OF SPEECH A REALITY The principles to transform free speech and government accountability from lip service to reality are no mystery. Those in power simply prefer the former to the latter. Six basic groundrules are obvious. Whistleblowers must -- 1)have access to courts where the decisionmakers have judicial independence 2)be entitled to a jury trial; 3)have remedies that hold individual harassers personally liable, so that an 4)gain access to legal shields for following government or professional codes of 5)have the ability to go on the attack against lawlessness by restoring citizen 6)restore due process rights for all violations of constitutional rights, even when A model whistleblower protection statute is enclosed as an addendum. CHOOSING AND WORKING WITH AN ATTORNEY Whether a whistleblower's story has a happy or tragic ending depends to a frightening degree on picking the right lawyer and maintaining an effective working relationship. In the eyes of the law, the attorney and client are as one. The attorney is the client's "mouthpiece," and the client automatically gets the benefits or liabilities of the attorney's statements and decisions. Obviously, picking a lawyer is a very serious decision, as significant as any other in the whistleblowing cycle. Unfortunately, most individuals are so anxious to get their case in the hands of an "expert" that they accept the first lawyer who will take them on affordable terms, without truly knowing the partner upon whom their career rights will depend. It might work out, but there are unacceptably high risks to future happiness, financial well-being and legal success. Ultimately, trust and intuition are as important as a catalogue of "do's" and "don'ts" in selecting an attorney. Like any partnership, to be effective the attorney and client should like each other and have a rapport based on mutual respect, at least within the context of their professional relationship. After all, they're each relying on each other in a high-stakes conflict where they're underdogs by conventional measures. But the smart whistleblower will follow both intuition, and the systematic common sense of a checklist based on his or her own priorities and the lessons painfully learned by others who have gone through the same experience. Our advice to any whistleblowers who need legal representation is summarized below. Some of the suggestions may not be appropriate in a given case. On the other hand, these tips are not all-inclusive. They represent a composite of experiences shared by those who have been represented by GAP or sought help from either of our organizations. Please let us know at GAP and PMP if you have items to add to the list, and if you have had positive or negative experiences with a particular lawyer. We both receive a steady stream of requests from new whistleblowers who could benefit from lessons learned. 1. Identifying prospective attorneys. Do not overlook word-of-mouth referrals from friends who may have had similar experiences and enjoyed a good attorney-client relationship with a lawyer. Contact GAP and PMP for suggestions. A routine part of our service to whistleblowers is to provide attorney referrals. Another approach is to contact public interest or community organizations -- locally, or through their national headquarters or Washington, D.C. office -- that have an ongoing interest in the issues of concern to you. Remember, the confidential attorney-client relationship will not apply during your discussions with lay representatives at those groups, so unless you want to make a disclosure to them you should avoid repeating your dissent. Just point out that you've been retaliated against for pursuing the same values on the job that their organization champions in the community or elsewhere. Then ask for their help in finding an attorney with a good track record in employment law, the topic of your dissent, or preferably both. Third, traditional sources such as the local bar association or relevant committees of the American Bar Association can help identify respected specialists. Your local public library also should have a copy of the lawyer's directory, Martindale-Hubbell, which describes the specialties of attorneys under a variety of cross-references. 2. Getting to know each other. Probably the most common reason why working relationships go sour between attorneys and clients is that they entered their partnership with differing expectations. As a result, the primary rule in choosing a lawyer is to pin down the details up front that are important to you. A few suggestions apply before you even talk to a prospective lawyer, however. Take the time to summarize your story in writing and be concise -- preferably less than two single-spaced, typed pages and never more than five. Take your time preparing this document. Prospective attorneys may appreciate the time they save by reading it before they meet with you. They can then get down to asking you the hard questions from a foundation of knowing the basic dispute and its context. Your case summary also will be an attorney's first impression of your communications skills, and will be a benchmark to test your credibility through questioning to check whether you have exaggerated the facts. Also take the time to identify solid candidates as supporting witnesses, and be prepared to describe how their testimony could help. Similarly, prepare a list of relevant documents currently or potentially available. It takes a near- miracle to win without either strong supporting testimony or documentary evidence. Your primary goal at the initial interview is to sell yourself and therefore build the attorney's confidence in your prospects for winning. As a result, the list below of suggested questions about groundrules for working with the attorney is probably too comprehensive for an initial interview. Prospective lawyers may be wary of someone who immediately cross- examines them on too wide a range of topics. First they want to make up their minds about you. Before you get serious about signing a retainer, however, you need to know where you both stand on these matters. And some of the first suggestions below obviously must occur at the initial interview. * Find out in advance if there is a fee for the initial consultation with the lawyer, and if so, how much it will cost. * Before you share your life and problems with the lawyer, confirm that the attorney-client privilege applies to what you discuss and that the information will not be revealed without your consent. * Even if you have confirmed the confidentiality of the discussions, don't take any chances. Learn whether the attorney has any other clients related to your dispute. Before your introductory meeting, check the list of "representative clients" in Martindale Hubbell. (Old copies may have more complete listings.) Then ask the attorney before you disclose confidential information. For example, one whistleblower at a poultry slaughter plant later learned that his powerful lawyer represented the state's poultry trade association. Not surprisingly, the lawyer allowed the statute of limitations to lapse on the whistleblower's case. Also not surprisingly, the employee could not find anyone to take a malpractice case against the lawyer in the state, which was dominated by the poultry industry. * Make clear your goals or objectives, both with respect to the attorney's representation, as well as the larger context of the public policy dispute about which you're blowing the whistle. For example, some lawyers will be uncomfortable if you continue to dissent publicly during the lawsuit. Other lawyers, who are advocates for the values you were defending with your dissent, will be uncomfortable if you do not. Similarly, different firms are appropriate for those who wish to settle a dispute quietly, compared with those whose goal is to have their day in court. For example, GAP now has a policy not to accept clients who are willing to accept financial settlements that gag them from cooperating with ongoing government investigations of their dissent. * Determine the attorney's willingness to work with groups helping to champion your dissent, if you want to continue making a public policy contribution. Some attorneys are unwilling to relinquish control of valuable information they learn from depositions or subpoenaed documents until the lawsuit is over, which might be many years and when that evidence could have prevented needless scandals or tragedies. There are valid reasons to keep significant evidence secret. For example, premature disclosures may cut out future voluntary cooperation by your former employer or colleagues in pretrial work to discover necessary facts for the trial. Alternatively, it may preclude settlement as an option by forcing an employer to neutralize your newest attacks through discrediting you in the lawsuit. These are tough choices and ultimately they are your choices. But you should pick an attorney on a similar wave length at the beginning, to avoid the possibility of serious conflicts when they would be highly damaging, at a critical point in the case. * Work out what your financial burdens and options are. Disgruntlement with a client for failing to keep up with expected payments is a major reason why lawyers reduce the time and energy they put into a case. * Pin down who will handle the case. Frequently it is not the lawyer who discusses it with you initially. Don't make a decision until you meet and have confidence in the specific attorney who will be responsible for defending your rights. * Find out how much time the attorney has and will commit to your case. Even the best lawyers are inadequate if they are so burdened by an overextended docket that they can't give you the priority you may need. On the other hand, many clients have an unrealistic expectation of how much time truly is needed in a particular case. * Determine how much time and effort the attorney wants and/or expects from you as a participant in preparing your case. Some attorneys prefer their clients to be functional partners, while others view the same client initiatives as interference. Whistleblowers, too, range from those who can't stay away from their cases to those who prefer to get on with their lives and not be bothered unnecessarily. * Get a commitment as to how much notice you will receive of developments, information and decisions that make a difference for your case. * Learn the attorney's track record in handling cases similar to yours, such as won-loss record and significant precedents or benefits obtained for other clients. One way to find out is by reviewing public court documents, such as briefs and relevant judicial decisions in similar cases that the attorney has handled. * Pin down your role in any potential settlement negotiations, including advance notice of proposals before they are made or of offers from the other side before any response is issued, and the attorney's willingness to respect your authority as the final decisionmaker in the settlement. A client is in a position of comparative weakness if an attorney threatens to quit unless settlement terms are accepted on the eve of trial. Be careful to remember, though, that your lawyer is the partner on your team who has unique expertise. Most of us have an unrealistic expectation of what we deserve to achieve in a settlement, which definitionally is a compromise where both parties are partially disappointed. Also, remember that the great majority of cases settle before trial. 3. Signing the retainer. The main advice here is remember that the retainer agreement is a contract. Treat this agreement with as much respect as you would any other contract. It may be one of the most important you ever sign. Read the terms carefully to make sure its provisions match up with any informal agreements reached on items listed above or from your own checklist. If you don't understand a term, ask the attorney to explain it and to replace the legalese with the English translation you understand. If the attorney balks, that is a warning symptom to consider. 4. Maintaining the working relationship. Like any other relationship, the attorney-client version requires regular tending. It is liable to sour if either party takes the other for granted. The tips below illustrate a few of the ways you can do your share to maintain a healthy partnership. * Pay your bills on time! If there is a financial crisis, give your lawyer as much warning as possible and conscientiously try to make alternative arrangements. This is a matter both of respect for your attorney's financial needs and to preclude a common excuse for tardiness or unenthusiastic advocacy. * Respect your attorney's time burdens and responsibilities to other clients. Don't cry wolf about emergencies, and don't demand instant gratification for non-emergencies. When possible, put developments in writing instead of demanding a phone or personal conference with your attorney. Confirm periodically, however, that the lawyer has read, understood and properly filed your written contributions. * View your lawyer as a human being who has a family, gets tired, etc. Attorneys understandably resent being perceived only as success objects and may get resentful periodically if they think that's your only interest in them. It's not to your advantage for your champion to resent you. * Make sure that you and your lawyer continue to be clear about your comparative responsibilities and divisions of labor. Sometimes adjustments are necessary during the course of a case. * Don't assume that progress is being made or that nothing has happened if you haven't heard from your attorney for an extended period. Communication gaps often are innocent but damaging lapses. * Don't insist on dealing only with the lawyer running the case. Get to know the junior attorney, administrative assistants and law clerks who are important parts of that attorney's team. Work through them whenever necessary. They may be putting in a majority of actual time spent on your case anyway. * Inform your attorney of any initiatives that you may wish to take for getting reinforcements or additional help. That way you won't surprise your attorney by letting the cat out of the bag prematurely on a sensitive matter, or end up either duplicating or working at cross purposes with your lawyer. The attorney-client partnership unites the whistleblower's values with the lawyer's expertise. Remember, your lawyer is working for you. But while you're the boss, your attorney is the expert guide to lead you through treacherous, largely-unknown territory. CONCLUSION This handbook is designed to tell you of all the risks in the slippery path of whistleblowing. If we have scared you from blowing the whistle, perhaps you weren't ready. If you are still determined to do so, we now hope that you will do it in a careful, planned and effective way. The Project on Military Procurement and the Government Accountability Project are happy to give you individual advice on your unique situation after you have read this handbook and know your alternatives. Please contact the Project on Military Procurement for whistleblowing about any aspect of national security, and the Government Accountability Project for legal assistance in all areas of whistleblowing. We hope that this handbook lets you do the right thing for your country while trying to protect your career and your personal life. Good luck. 浜様様様様様様様様様様様様様様様様様様様様様様様様融 SNAFU - LIBRARIES 麺様様様様様様様様様様様様様様様様様様様様様様様様郵 B - Browsing Library J - Research Library P - Defense Procurement, an Overview H - Help Q - Quit Options 藩様様様様様様様様様様様様様様様様様様様様様様様様夕 Enter an above letter then press return. Your choice? B 浜様様様様様様様様様裕SNAFU BROWSING LIBRARY突様様様様様様様様様融 A - About This Library and its Organization B - Weapons Testing C - Secrecy Issues and Black Weapons Programs D - Defense Contract Issues E - Ethics and Conflict of Interest F - Readiness, Force Structure, and Budget Issues G - Weapons That Don't Work Q - Quit 藩様様様様様様様様様様様様様様様様様様様様様様様様様様様様様様様夕 Enter the letter of an above library category. Your choice? A About the Browsing Library... ~~~~~~~~~~~~~~~~~~~~~~~~~ A TALE OF TWO LIBRARIES There are two major "library" facilities available on this computerized information system that we call SNAFU. These are the "Browsing Library", and the "Research Library", both of which are part of the "Library System". The Research Library is meant for the use of journalists or others who are already knowledgable on military procurement matters. This library is meant to give such a user "no-nonesense" access to a large volume of hard documentation. We know that reporters will want to have immediate access to the actual documents without having to sift through any layers of explanatory text written by us. Therefore, the presentation philosophy of this library is "just the facts..." The Browsing Library's presentation philosophy is somewhat different. Its purpose is to make possible a sort of educational journey through the issues of military procurement. This journey ultimately gives the user access to the same documentation that is available in the research library, but the documents are preceded and followed by our own explanatory text. Often this will be an anecdotal history of the material the user is being presented. Thus, the Browsing Library provides a more structured tour of our material. Hopefully the structuring will allow the uninitiated to access our material as more of a coherent whole, or mosaic, rather than a disjoint set of documents. We think both libraries will meet a distinct need.