http://www.pogo.org/p/government/ga-080428-whistleblower.html

April 28, 2008

Criminal Charges Against Boeing Whistleblower Set Dangerous Precedent: Jurors Disagreed on Earlier Charges Resulting in a Mistrial

For Immediate Release
Contact: Nick Schwellenbach (202) 347-1122

This weekend POGO learned that former Boeing quality assurance inspector Gerald Eastman is facing a second round of criminal charges for his whistle-blowing to the press. King County prosecutors will announce a new trial date on April 30th, 2008 according to an email from Senior Deputy Prosecutor Scott Peterson to Eastman's public defender, Ramona Brandes.

"The charges against Eastman are a message to all potential whistle-blowers at Boeing," said Nick Schwellenbach, an investigator at POGO. "The message from Boeing is clear: We'll try to send you to jail if you disclose information to the press."

Eastman was discovered accessing and downloading internal Boeing information, some of which he shared with reporters at the Seattle Times and Seattle Post-Intelligencer. Eastman's disclosures to the press mostly concerned quality assurance and inspection problems he perceived while working at Boeing, though many of the articles he sparked related to increasing outsourcing of Boeing's production.

After conferring with Boeing, the King County prosecutor's office last month pursued criminal charges against Eastman for "computer trespass," a charge normally used against hackers, not whistle-blowers. The first trial resulted in a hung jury because some of the jurors believed Eastman's activities were whistle-blowing and should not result in criminal prosecution. The judge in that case told jurors not to consider whistle-blower laws.

Several lawyers have told POGO that the Eastman case is part of a disturbing trend of whistle-blowers increasingly facing criminal prosecution. The First Amendment right of free speech is a typical and powerful defense in these cases. Although a company can often legally terminate an employee, it considered extreme for a government prosecutor to attempt to jail a whistle-blower for his activities.

Founded in 1981, the Project On Government Oversight (POGO) is an independent nonprofit that investigates and exposes corruption in order to achieve a more accountable federal government.

Juror #11 In Trial of Boeing Whistleblower, Gerald Eastman, Speaks to Comments About Trial in Seattle PI Reader Posts.

This comment was sent to me today by Juror #11 in Mr. Eastman’s March/April Trial in Seattle -GFS

New comment on your post #85 "Boeing Whistleblower Trial Ends With Hung Jury"

Comment: By Juror # 11:

zinger says "He needs a re-trial and the prosecuting attorney ought to pay a little more attention to whom ends up as a juror. The two no votes ought to have never happened."

You are out of touch with reality zinger. As a requirement of employment ,Eastman was obligated to access the Boeing mainframe and data bases. Once an authorized user gains access to the system or database, the "computer trespass" law, created to prosecute outsiders for breaking into a computer system, does not apply to that user. Anything an authorized user does after gaining authorized access to the mainframe (where ever it is located), is NOT subject to this law. Yes, Eastman violated company policy, but there is a huge difference between breaking company policy and committing a felony. Boeing abused it's power by filing a false theft report with the Seattle PD, which resulted in the Theft squad of the Southeast division to obtain a search warrant to raid Eastman's house and confiscated any device with a memory. This was the only way Boeing could recover the files Eastman had archived. Filing a false police report is a felony if memory serves me right. So why did Boeing do it?
In reading the emails Eastman sent to Boeing senior management, in Chigago, he used the letters R.I.C.O. If Eastman was telling the truth, and making false reports to the new owners of the planes and the government bodies is a felony, than Boeing was indeed engaged in a racketeering conspiracy to cover up fraud in the inspection reports. They went ballistic and used there considerable "juice" to get the Seattle PD (filed a theft report for something which is not against the law in the State of Washington)to recover the files on Eastman home computer and then pressured the elected king co. prosecutor (reportedly sponsored in the election by Boeing) to shop around for a crime they could stick Eastman with. It seems, copying and downloading files from a computer system is only a crime for outside (unauthorized) users. What Eastman did is NOT against the law in Washington State. That's what this whole trial was about. In fact, I came to believe this was an attempt to make copying and
downloading files a crime without going to the legislature to get a law created. Had you been on this jury instead of me, it is likely that today, every employee in the state of Washington would have to be in constant worry that some arbitrary company policy could be used to send the local police to raid their home and confiscate all devices, from cell phones to mp3 players, which contain a memory. This extra legislative attempt to empower employers to terrorize their employees with the threat of criminal treatment for violating company policy is corporate terrorism IMHO.

Filing a false police report is just another example of Boeing's arrogant behavior that not only violated Eastman's State and Federal civil liberties, tried to expand an anti-hacker law to the rest of the employees in the State who have authorized access to their company computers, compromised the king County prosecutors office, while committing another possible RICO offence (filing a false police report). There is no doubt in my mind that a higher court would have reversed a "guilty" decision as the law being over broad. Justice would have been better served with a 12-0 verdict of not guilty. That was the outcome I fought for to send a message to the powerful that what they were doing was unacceptable, still, in the land of the free.

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http://gflorencescott.wordpress.com/2008/04/08/boeing-whistleblower-trial-ends-with-hung-jury/#comments

Bush Plan To Contract Federal Jobs Falls Short
Scope and Savings Have Not Met Goals
By Christopher Lee
Washington Post Staff Writer
Friday, April 25, 2008; A01
Joseph Wassmann thought he had a secure position producing videos for the U.S. Military Academy, but not long ago he found his job on the line because of a Bush administration plan to inject more efficiency into the federal bureaucracy.
Wassmann, 40, was among a group of information management employees at West Point who had to prove that they could do their jobs better and more cheaply than a private contractor. If they could not, they were told, the work would be outsourced. It was all part of President Bush's government-wide plan to reduce costs by inviting contractors to bid on about 425,000 federal jobs that could be considered "commercial" in nature.
The West Point competition dragged on for more than two years. In the end, Wassmann and most of his co-workers won, but only by agreeing to downsize from 119 employees to 88. And the mood has never been worse, he said.
"Tensions are at an all-time high," he said. "We have to cut ourselves to the bone to win these bids. . . . And morale is just destroyed afterward."
The public-private face-off at West Point illustrates just what Bush envisioned when he proposed the "competitive sourcing" initiative in 2001 as part of his management agenda. It turned on a simple idea: Force federal employees to compete for their jobs against private contractors and costs will decrease, even if the work ultimately stays in-house.
But as Bush's presidency winds down, the program's critics say it has had disappointing results and shaken morale among the federal government's 1.8 million civil servants.
Private contractors have grown increasingly reluctant to participate in the competitions, which federal employees have won 83 percent of the time.
The program fell short of the president's goals in scope and in cost savings. Between 2003 and 2006, agencies completed competitions for fewer than 50,000 jobs, a fraction of what Bush envisioned.
Moreover, the Government Accountability Office found that the administration has overstated the savings from some competitions by undercounting the costs of running them. Collectively, they cost $225 million, or about $4,800 per job, according to White House figures.
"The competitive sourcing initiative did little to improve management, produced a ton of worthless paper, demoralized thousands of workers and cost a bundle, all to prove that federal employees are pretty good after all," said Paul C. Light, a professor of government at New York University's Wagner Graduate School of Public Service.
"From a legacy perspective for the president, I think this will be seen as a costly failure on his part," said Colleen M. Kelley, president of the National Treasury Employees Union (NTEU), which represents 150,000 employees in 31 agencies. "They have not made any progress on what their stated goal was, and that's a good thing. It has been just an endless fight to slow them down and to derail them."
Bush officials acknowledge that they had hoped to put many more jobs up for competition -- as varied as janitorial services and computer management. Even so, they say, the competitions completed thus far have generated realized and projected savings of more than $7 billion.
"We've delivered real savings -- over $1 billion a year," said Clay Johnson III, deputy director for management at the Office of Management and Budget. "I thought we would have generated by now even larger savings than that. But anything that generates savings of that magnitude has to be deemed a big success."
Competitive sourcing dates to Dwight D. Eisenhower's administration, when the White House began encouraging federal agencies to turn to the private sector for certain goods and services. For decades, almost all such competitions took place in the Defense Department, the government's largest.
Bush entered office with a deep skepticism of government. He saw competitive sourcing as a way to improve agencies' performance.
Private companies loved the idea of vast new contracting opportunities. But federal unions feared the concept was simply a way to steer lucrative business to the administration's political backers.
From the outset, the program's rocky path illustrated the collective political power of federal workers. The initiative drew early criticism from politicians whose districts included many federal employees, including Sen. Barbara A. Mikulski (D-Md.) and Rep. James P. Moran Jr. (D-Va.). They argued that the White House was pursuing "arbitrary" numerical job targets.
In the end, the unions and their allies in Congress largely stymied the administration's efforts. They banned the use of numerical quotas. They inserted special provisions in annual appropriations bills that denied funding for some competitions. And they walled off certain federal jobs after declaring them "inherently governmental."
The unions, including the American Federation of Government Employees and the NTEU, also won legislative restrictions that removed health care and retirement benefits from the cost comparisons, wiping out an advantage for many private-sector bidders.
Many contractors threw up their hands and stopped participating, said Stan Soloway, president of the Professional Services Council, an Arlington-based contractor group.
A competition involving 258 administrative positions at the Labor Department, including 50 in the Mine Safety and Health Administration, illustrates why contractors lost interest, Soloway said.
In May 2007, the department awarded the work to GAP Solutions, a small, minority-owned firm in Virginia whose bid promised $62 million in savings over five years. But at the behest of unions, Sen. Robert C. Byrd (D-W.Va.) had the jobs declared inherently governmental, prohibiting the contractor from taking over the work.
The company had already hired some employees, but when Labor officials terminated the $71 million contract, they refused to reimburse the firm for its upfront costs, Soloway said. (GAP Solutions officials declined to comment.)
"It's unfortunate that it has effectively gone from being a management tool to really more of a political issue," he said.
The unions are not happy, either. They cite another troubled competition, this one at the Internal Revenue Service. In 2005, about 1,100 agency employees initially won in their bid to keep jobs to manage paper tax returns at seven IRS service centers. After a company protest, though, the agency reversed itself and hired IAP Worldwide Services.
Shortly before IAP was to take over in late 2006, it notified the IRS that it was not prepared to do the work at all locations. By then, federal employees were already moving to other jobs. The contractor did not get fully on board until late last year. Yet in a report issued last spring, the OMB claimed about $35 million in savings, said Kelley, the NTEU president.
"This, for me, is just an example that OMB's projections of savings from federal contracting are wildly speculative and they are completely unsupported by any evidence," she said.
The OMB's Johnson said agencies are doing more to validate savings claims.
"The bottom line," he said, "is the federal government can be more focused on its cost and its performance. We should always look at what it costs us to do everything -- IT, human resources, building maintenance, everything. And if we ever stop doing that, then we are being poor stewards of the taxpayers' money."
At West Point, the workers won, but they are not celebrating. Some displaced employees found other academy jobs. Some took early retirement.
Soft landings are getting harder to come by, and more competitions are on the way, said Don Hale, president of the AFGE Local 2367, which represents 1,600 workers at the academy.
"When we first started the competitive sourcing initiative, we had some fat here," he said. "Now it's at a point where we're going to start losing people because we can't gain any efficiencies."

Senators Seek Deeper Air Force Investigation
By Josh White
Washington Post Staff Writer
Friday, April 25, 2008; A07

The Senate Armed Services Committee has asked the Defense Department's inspector general to review the role of senior Air Force officials in a $50 million contract, seeking further investigation into possible criminal conduct, ethical violations and failures of leadership.
Sens. Carl M. Levin (D-Mich.) and John McCain (R-Ariz.) asked the inspector general on Monday to review the conduct of all current and former Air Force officials who were named in a 251-page investigative report released last week, noting that it "raises serious questions about the role played" by senior officials. The report provided a blow-by-blow account of how a company owned by a civilian friend of senior Air Force leaders and by a retired four-star general received a $50 million contract to update the Thunderbirds air show, despite a bid up to twice as high as other offers.
Investigators found that Maj. Gen. Stephen Goldfein steered the contract toward Strategic Message Solutions amid contracting irregularities and a stacked selection panel. Goldfein and four other officers received administrative punishment. The report named Gen. T. Michael "Buzz" Moseley, the Air Force chief of staff, as having potentially inappropriate contact with SMS owners but was spared punishment and has publicly defended his actions.
Yesterday, Sen. Claire McCaskill (D-Mo.), also a member of the Armed Services Committee, wrote a letter to Defense Secretary Robert M. Gates asking him to hold senior officers accountable.
"I am particularly concerned with the actions of Air Force Chief of Staff General T. Michael Moseley and the dismissive and demoralizing message it sends to subordinates when there is a lack of disciplinary action taken against the most senior leaders," McCaskill wrote.
McCaskill also wrote a stern letter yesterday to Air Force Secretary Michael W. Wynne, saying a telephone conversation they had regarding the matter left her concerned that he was not giving the botched contract enough attention.
"It is incomprehensible to me that no action has been taken to reprimand General Moseley or to evaluate his continued fitness to lead the Air Force," McCaskill wrote.
Moseley, in an interview last week, said he was aware of ethical and legal boundaries and never crossed them. E-mail records in the IG report show that Moseley wanted his contracting teams to follow the rules once instructed to look at the Thunderbirds proposal.

GSA inspector general cleared of whistleblower complaints
By Robert Brodsky rbrodsky@govexec.com April 25, 2008

The General Services Administration inspector general has been cleared of all allegations of misconduct in a pair of wide-ranging complaints filed by four of the office's former attorneys.
The inspector general for the Corporation for National and Community Service found that GSA IG Brian Miller had not violated any statute, rule or regulation, according to an April letter from Sen. Charles Grassley, R-Iowa, to GSA Administrator Lurita A. Doan.
A similar opinion was offered in January by the President's Council on Integrity and Efficiency's Integrity Committee, which is responsible for probing complaints against inspectors general.
But, despite calls for an immediate cease fire, the closure of the whistleblower case appears to have only inflamed the fury of Doan, who has feuded with Miller virtually since the day she took office.
The Corporation for National and Community Service IG, which agreed to review the case after the integrity and efficiency council ruled that some of the complaints did not fall within its purview, was looking specifically at whether the nonreimbursable detail of a GSA IG employee violated the Anti-Deficiency Act. The employee had been detailed to the Office of the Chief Information Officer at the Housing and Urban Development Department.
Vincent Mulloy, counsel to the community service IG, conducted a full breakdown of the complaint, reviewing the allegations, relevant laws and court decisions, according to Grassley's letter, which was obtained by The Washington Post's Government Inc. blog.
"The complaint should be considered without merit, and closed, to end the distraction of GSA OIG personnel from their duties," Mulloy wrote.
All additional complaints filed by the former attorneys, including former counsel Kevin Buford, were decided to be "personnel management" concerns that should be addressed by the agency's IG and his staff, the letter said. In two separate complaints to the integrity and efficiency council, the whistleblowers had charged Miller and his top deputies with intimidation, harassment and a host of retaliatory actions.
"We are satisfied that this matter has been put to rest," Miller said. "Multiple independent reviews showed the allegations to be false. Let's all get back to work."
Grassley, who has attempted to mediate the fractious relationship between Miller and Doan, encouraged the two to put aside their differences and work together for taxpayers.
"The PCIE review and the CNCS-OIG analysis should convince you the Buford PCIE complaint has been addressed and closed," Grassley wrote to Doan. "As such, I encourage you and IG Miller to demonstrate to all GSA employees the professionalism and character we all expect of top administrators in the federal government. I trust that you will move past this matter and will work cooperatively with the GSA OIG."
Grassley's optimism, however, could be misplaced.
In a statement to Government Executive, Doan made it clear that she is not ready to drop the whistleblower complaint -- or her scrutiny of Miller.
"I am, and will continue to be, a fierce advocate for GSA employees and will not allow any form of improper harassment and intimidation to create a hostile workplace at our agency," she said. "I find it remarkable that none of these whistleblowers has yet been interviewed. Instead, their core complaint about harassment and improper intimidation and retaliation is being ignored. This issue will not be put to rest until their complaints are investigated and a finding of fact is made. Ignoring these complaints and pretending the problem will self-correct is not going to work."
Doan further said the whistleblowers had their "reputations impugned and their careers interrupted after making these allegations, and all have sought transfer to other jobs."
As she has in the past, the controversial administrator once again portrayed the whistleblower complaints as an extension of her own long-running and public feud with Miller. Doan has filed numerous complaints against Miller, alleging improper contracting, leaking documents to the media, falsifying records and issuing excessive bonuses to his staff.
Miller has investigated Doan for her role in a contract with Sun Microsystems, her reported attempt to give a sole-source contract to a friend and her participation in a politically motivated conference. In 2007, the Office of Special Counsel found that Doan had violated the Hatch Act, which restricts political activity by executive branch employees.
Doan has denied the allegations and said Miller is retaliating against her for spending cuts and increased oversight she proposed for the IG's office.
She made it clear that peace with Miller is not in the cards any time soon. "I will stay on this issue like a dog on a bone until I am absolutely convinced that GSA does not harbor or tolerate behavior that creates a hostile workplace," Doan said.