March 17, 2007

House approves landmark whistleblower legislation with protection for scientific freedom.

Click link to read article

www.climatesciencewatch.org/index.php/csw/details/house_whistleblower_vote/

Federal doctors get whistle-blower shield
May 2, 2006
John Solomon Associated Press

WASHINGTON -- Reversing course, the government has concluded that thousands of federal doctors and medical researchers who receive higher-than-normal salaries deserve the same protection to blow the whistle on wrongdoing as other civil servants.

The decision by the U.S. Merit Systems Protection Board supersedes an earlier ruling that had denied National Institutes of Health safety expert Jonathan Fishbein protection from firing under the Whistleblower Protection Act.

The ruling is too late to affect Fishbein, who was reinstated by the government recently and settled a lawsuit alleging he was fired for blowing the whistle on safety problems with federal AIDS research.

But the board's conclusion has implications for thousands of other federal researchers and doctors brought in from the private sector to conduct important government research, medical work and safety reviews.

These so-called Title 42 workers were hired under a special provision of law that paid them salaries higher than the normal civil service to compensate them for what they could make in the private sector.

An administrative law judge in late 2004 concluded that the higher paid workers weren't entitled to whistle-blower protection.

The board, however, disagreed and last month concluded that nothing in the Title 42 law precluded those workers from enjoying the same protections as other civil servants.

"The board will construe its (the law's) provisions liberally to embrace all cases fairly with its scope," the ruling said.

Allegations by Fishbein and NIH colleagues of a hostile work environment and shoddy, unsafe research among vulnerable AIDS patients were highlighted in a series of Associated Press stories that led to several investigations and changes inside NIH.

The stories documented how a government-funded AIDS research project in Africa violated federal patient safety rules, how foster children were used to test powerful AIDS drugs without promised protections, and how female NIH safety experts reported being intimidated by sexual harassment from reporting safety problems.

Fishbein's lawyer on Monday said the new decision closed a "dangerous loophole" that could have kept researchers with knowledge of wrongdoing from coming forward.

"Dr. Fishbein took a courageous stand in demanding full whistle- blower protection in the face of a hostile federal bureaucracy," Attorney Stephen Kohn said. "Other Title 42 employees with information about wrongdoing can now blow the whistle and obtain protection."

Senate Finance Committee Chairman Charles Grassley, R-Iowa, who championed Fishbein's case, hailed the decision. "Any step that improves the environment for whistle-blowers to come forward is a step in the right direction. Whistle-blowers are patriotic Americans who stick their necks out and risk it all to commit truth. They deserve rewards, not reprisals," he said.

Fishbein was hired in 2003 under Section 42 by NIH, the nation's premier medical research agency, to help improve AIDS research practices at a salary of $178,000, slightly more than Cabinet secretaries at the time.

He alleged he was fired for uncovering concerns about sloppy research practices that might endanger patient safety, including a project in Africa that violated federal patient safety rules.

NIH said he was fired for poor performance but settled the case late last year after evidence emerged that Fishbein had been recommended for a performance award and may have been retaliated against.

The Department of Health and Human Services employs thousands of Title 42 workers in such key research agencies as NIH, the Food and Drug Administration and the Centers for Disease Control and Prevention.

Its lawyers originally opposed granting whistleblower protection to Fishbein, leading to the administrative judge's initial ruling. But the agency later reversed course amid a public outcry and sided with Fishbein's lawyers that Title 42 workers deserved the same protection as other civil servants.

A spokesman for the department did not immediately return a call Monday seeking comment.

The whistle-blower protection law was passed more than a decade ago to strengthen federal workers' protections when they raise allegations of federal wrongdoing, giving them outlets such as the board and the U.S. Office of Special Counsel to seek legal protection.
----------------------------------------------------------------------
So, ask yourself, why are Federal Doctors still struggling as Whistleblowers? VA?

Anyone know what the Senate did? -VM
----------------------------------------------------------------------
March 15, 2007

House Passes Historic Whistleblower Bill Protecting Federal Scientists
Statement by Dr. Francesca Grifo, Senior Scientist and Director, Scientific Integrity Program, Union of Concerned Scientists

WASHINGTON—The House of Representatives today overwhelmingly passed the Whistleblower Protection Enhancement Act, which would, for the first time, grant federal scientists and contractors the right to expose political interference in their research without fear of retribution. The bill passed by a 331 to 94 vote, with 229 Democrats and 102 Republicans voting in favor.The House soundly rejected an amendment from Rep. Bill Sali (R-Idaho) that would have stripped all protections for scientists from the legislation. Instead, the legislators included an amendment by Rep. Bart Stupak (D-Mich.) giving scientists the right to present their research at conferences and in peer-reviewed journals.Below is a statement by Francesca Grifo, senior scientist and director of the Scientific Integrity Program at the Union of Concerned Scientists: "Today, both Republicans and Democrats stood up to protect the brave scientists who expose political interference in their work. The resounding bipartisan support for this bill should embolden the Senate to pass similar legislation and send it quickly to the president's desk."Censoring scientists undermines our democracy and threatens public health. One stunning example: Vioxx. Fifty-five thousand Americans died because scientists at the Food and Drug Administration couldn't speak out. If this law had been in place at the time, those people might still be alive today."

The Freedom of Information Center
Federal whistleblower quits, alleges politicization of science

By DON THOMPSON
Associated Press
May 19, 2004

SACRAMENTO - A federal biologist who said his team's advice was illegally ignored prior to a massive 2002 Klamath River fish kill has resigned, accusing the government of politicizing scientific decision-making and misleading the public.

Michael Kelly had sought federal whistleblower protection after he complained the Bush administration violated the Endangered Species Act by pressuring for altered scientific findings by the review team he led for the National Marine Fisheries Service, now NOAA Fisheries.

"My efforts were ultimately unproductive," Kelly laments in his resignation letter, released Wednesday through Public Employees for Environmental Responsibility, which represented Kelly in the whistleblower case first reported by The Associated Press. "Threatened coho salmon in the Klamath basin still do not have adequate flow conditions to assure their survival."

Kelly alleged his team's recommendations were twice rejected as the U.S. Bureau of Reclamation imposed lower water levels than were scientifically justified.

California wildlife officials, environmentalists, fishermen and Indian tribes blame low water levels for the death of 33,000 salmon that fall, amounting to nearly a quarter of the projected fall run in the river flowing from south central Oregon through northwest California.

The U.S. Office of Special Counsel declined to investigate Kelly's complaint, saying it could neither prove "gross mismanagement" by NOAA Fisheries even if the agency relied on conflicting science nor prove a cause-and-effect relationship between the low water decision and the subsequent die-off.

Kelly's testimony has since been key in a federal court ruling overturning the agency's long-term water flow plan for the Klamath, though a decision allowing the government to proceed with its plans through 2008 is under appeal.

Kelly resigned from the agency's Arcata, Calif., office Friday after nine years, saying Regional Manager Jim Lecky had again intervened in overturning his finding in the latest project to which he was assigned. He feared a repeat of his ethical predicament two years ago.

NOAA Fisheries officials had no immediate comment.

The latest project is a proposal by the California Department of Fish and Game to rebuild a collapsed levee and re-establish a freshwater pond in what has become a salt marsh at the mouth of the Eel River. Kelly found that the marsh has become an important rearing area for young threatened chinook salmon and other species.

He objects in his letter that the state agency appears to want to turn it back into a freshwater pond mainly to concentrate ducks for convenient hunting. Karen Kovacs, a senior state biologist supervisor, said the state manages the 2,200-acre Eel River Wildlife Area for all aquatic wildlife - freshwater and saltwater - and to that end wants to re-establish a 120-acre pond that collapsed six years ago, while leaving 200 acres as a salt marsh.

As a result of Kelly's finding, PEER called on the state to drop the proposal.

Kelly is the latest in a recent string of scientists to accuse the Bush administration of substituting policy for science, charges the administration denies.

In his Tuesday resignation letter, he accuses his agency of doing so in recent decisions not to list the green sturgeon under the Endangered Species Act; counting hatchery raised salmon along with wild salmon in protection decisions; and an attempt, since blocked by a judge, to alter the definition of dolphin-safe tuna.

"My particular case is just symptomatic of this agency's failure to correctly apply science and caution to its decisions and public pronouncements. I speak for many of my fellow biologists who are embarrassed and disgusted by the agency's apparent misuse of science," Kelly wrote.

"Federal service has just lost another biologist with the integrity to speak up," said Karen Schambach, director of PEER's California office. "It is becoming increasingly difficult for self-respecting scientists to continue working in agencies where politics now routinely and flagrantly trump science."

Federal Whistleblower Office Accused of ‘Purging’ Staff
by Brian Dominick
www.newstandardnews.net

Gov't workers in charge of making sure other gov't workers are not punished for reporting agency abuses or for other illegitimate reasons say they are being squeezed out of their own jobs by the Bush-appointed special counsel.
Jan. 13, 2005 – The federal agency tasked with evaluating workplace complaints among US government employees is once again coming under fire for suspicious practices, this time from its own employees, who claim that the man President Bush appointed ostensibly to protect whistleblowers and other workers is engaged in punishing critics within his own office in order to stock it with friendly new hires.

According to public employee advocacy organizations and a lawyer representing staff of the US Office of Special Counsel (OSC), some twelve people -- more than a fifth of the office's investigative and legal staff -- face the choice of moving to a distant city within two months or losing their jobs.

Some of the affected employees have retained an attorney and complained to three nongovernmental organizations that specialize in advocating for the rights of government employees who bring allegations of misconduct against government agencies. The workers' representatives say the affected employees have reason to believe that the reassignments amount to an attempted "purge." They further suggest that Special Counsel Scott Bloch is gradually doing away with his critics while making way for pliant, fresh-faced replacements, fitting a pattern of "cronyism" they allege he has engaged in throughout most of his thirteen-month tenure as head of OSC.

Bloch did not issue the reassignments with the expectation that the employees would accept them, said Tony Vergnetti, a partner at the private practice Shaw, Bransford, Veilleux & Roth, P.C. and an expert in federal employment law. Vergnetti is representing "several" of the twelve employees who received transfer orders last week.

"Our clients feel very strongly that the reasons proffered by the OSC -- and we're seeing different ones each day -- are just completely unfounded," Vergnetti told The NewStandard, noting that the affected staff were offered just ten days to accept the transfer, two weeks to find new housing at least halfway across the country, and 60 days to report to their new assignments.

Contrary to a statement in a recent OSC press release that "extensive discussions with [OSC] staff" preceded the decision to transfer a dozen employees to OSC field offices in Detroit, Houston and Oakland, Vergnetti said that the relocation announcement "took everybody by surprise." The affected workers' advocates say that not one of them -- including senior OSC staffers who have served under Bloch's predecessors -- was consulted on the move.

Furthermore, no call for relocation volunteers preceded the decision, and Bloch has reportedly refused to allow other staff to voluntarily take the places of those ordered to relocate to new assignments.

Vergnetti said the relocation announcement was "very upsetting" to his clients. "Ten days to decide is completely unreasonable," he said, since many of the workers "have well-established family lives" and roots in the DC area.

Although Vergnetti stopped short of explicitly questioning the motives behind Bloch's move, Jeff Ruch, executive director of Public Employees for Environmental Responsibility (PEER), was more willing to speculate. PEER has long been critical of Bloch for what the group calls "crony" hiring practices and his refusal to release documents pertaining to personnel decisions.

Since assuming office, Ruch told TNS, Bloch has exclusively filled openings at OSC with non-civil service employees appointed without competition, including many fresh out of the Christian conservative Ave Maria Law School. Ruch also said Bloch has employed no-bid contractors, an unusual practice at OSC.

All of the staff directly affected by unilateral relocation orders are career civil service workers, according to both Vergnetti and Ruch. None of the Bloch's own appointees has been told to move. "The best we can figure," Ruch said, speaking for PEER, "is that if [Bloch] didn't appoint them, he suspects their loyalty."

Normally, federal employees concerned that they are being punished for speaking out on the job, or for any other illegitimate reason, would turn to the Office of Special Counsel for assistance in seeking redress. Staff of OSC themselves, however, have no direct recourse for registering such a complaint of their own within the system.

"Our biggest concern is [that] OSC… is not policed by any governmental agency other than Congress," Vergnetti told TNS. "So, to ensure that [OSC] complies with [workplace] laws, the employees are really left without any meaningful forum to question or challenge the legitimacy of these reassignments."

With no other agency to turn to, the employees are hoping for congressional intervention. "Their sole avenue to keep this train from leaving the station," Vergnetti said, "is that Congress will conduct some sort of oversight hearing or some sort of investigation into the reassignments."

Toward that end, three independent organizations have written a joint letter to Senators Susan Collins and Joseph Lieberman, heads of the Senate Committee on Government Oversight, the body directly responsible for the Office of Special Counsel.

In addition to PEER, the letter is signed by the Project on Government Oversight and the Government Accountability Project.

According to the groups, Bloch's actions threaten to "transform the OSC from an independent agency whose mission is to protect the merit system, into a role model for destroying it."

The advocacy groups also say they have "every reason to believe that the employees directly affected by the 'reorganization' have been deliberately targeted to make way for Mr. Bloch's own hand-picks. Virtually all of the employees affected are individuals who either work under, or have themselves dared to engage in even mild private discussions with Mr. Bloch over the advisability of management and policy decisions he has made over the last twelve months."

The letter goes on to state that OSC employees, "whose morale is now at an all-time low," have been "living in a culture of fear" since Bloch issued a gag order to employees, forbidding staff -- part of whose job, ironically, is to protect whistleblowers -- from discussing OSC policy outside the agency.

Two federal employees' unions joined the call this week. The American Federation of Government Employees, which represents 600,000 workers, issued a statement demanding an investigation. The National Treasury Employees Union made a similar call on Wednesday.

Bloch has faced considerable criticism from PEER and others in the past. When he was nominated to head the Office of Special Counsel, Bloch was helping run the Office of Faith-Based Initiatives at the Department of Justice. The special counsel is itself an appointed position with a fixed, five-year term of office. Ostensibly to protect the independence of the agency, the special counsel cannot be unseated unless convicted of a crime.

Last year even the Bush administration, under pressure from gay rights activists and members of Congress, rebuked Bloch's conservative ways, criticizing the special counsel's suggestion that discrimination against federal employees based on their sexual orientation is permissible.

But nearly a year later, and despite having issued an apparent retraction of the change, language protecting federal employees from discrimination based on sexual orientation remains absent from OSC literature.

Bloch's spokesperson, Cathy Deeds, failed to return several calls and an email on the matter of Bloch's relocation orders, but speaking to the Washington Post she called charges that they are punitive "outrageous and inaccurate."

OSC employees issued relocation orders on January 7 have been told they must give Bloch their answer by Monday. PEER and the other groups argue it would be more efficient to fill openings in the other workplaces, including the as-yet-unopened Detroit field office, with an allotment Congress recently gave the OSC to hire seven new employees, rather than shuffling so many settled workers around.