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.

Review 7-7-03: Lockheed Martin and Boeing Scandal

This article: Lockheed Martin Sees Opportunity in West Coast EELV Launch Business
By Jeremy Singer, Space News Staff Writer discusses Boeing Wrongdoing Allegations and Meaning.

www.space.com/spacenews/archive03/eelvarch_070703.html

Boeing admits no guilt in scandal

May 16, 2006
By Dominic Gates
Seattle Times aerospace reporter

The Department of Justice announced Monday the terms of a proposed global settlement with Boeing over recent procurement scandals. It levies a $615 million fine but lifts the threat of prosecution of the company.
"No charges will be filed," said Doug Bain, Boeing's top lawyer, in a statement.
While the government remains technically free to indict any individuals it has evidence against, prosecutors "are not contemplating any further indictments" against company executives, said a lawyer close to the negotiations, who asked for anonymity. "This case is over."
A senior Justice Department official said the fine is "an attempt to capture in numerical terms some of the money lost to the taxpayer and the government" through Boeing's misconduct. He said no one in the department could recall a larger financial penalty against a defense contractor.
Crucially though, Boeing admits no wrongdoing as a company. According to separate Justice Department and company statements, Boeing has agreed only "to accept responsibility for the conduct of its employees."
Convicted employees include former Chief Financial Officer Mike Sears and executive Darleen Druyun, both of whom have already completed sentences in federal prison.
Sears hired Druyun when she was still working for the Air Force and deeply involved in awarding contracts to the company. She later admitted favoring Boeing in a series of contracts.
Terms of Boeing settlement


$615 million fine: $565 million to resolve civil claims, $50 million as a penalty for criminal activity.
No criminal charges against the company. Cases against individuals already charged are not affected.
Admission of responsibility: Boeing accepts responsibility for the conduct of its employees but doesn't admit guilt as a company.
Ethics compliance measures: Boeing must maintain its agreement with the Air Force to monitor contract awards; it must also follow through with its new internal ethics effort.
Two years' probation: The charges can be prosecuted if a senior executive is indicted in that period.
Source: Department of Justice
Two lower-level Boeing employees, engineer Kenneth Branch — a former Lockheed Martin employee — and his one-time supervisor at Boeing, William Erskine, remain under indictment in U.S. District Court in California. They're accused of stealing proprietary Lockheed documents used to win contracts for Air Force and NASA space rockets.
Thom Mrozek, spokesman for the U.S. Attorney's Office in Los Angeles, said the government settlement with Boeing as a company "has no bearing" on that case, which is scheduled to go to trial June 27.
Boeing has argued throughout the scandals that these individuals acted against company policy and without authority. The government essentially has agreed not to dispute that argument.
But prosecutors could have decided differently. John Coffee, professor of corporate law at Columbia Law School, said a corporation is liable for the acts of any official, providing the officer is acting to benefit the company rather than himself.
"This wasn't an officer off on his own personal frolic," said Coffee. "To the extent this behavior was trying to maximize profits for Boeing, corporate liability would seem obvious."
Yet the government had to weigh the impact of an indictment. In January, Bain, who is to retire July 1 as Boeing's top counsel, warned executives at a private retreat in Orlando, Fla., that conviction could lead to being barred from all government military contracts, which would have devastated the company.
According to the lawyer close to the negotiations, the government chose not to indict based on the so-called "Thompson Memo" guidelines for prosecution of corporations.
The memo was drawn up in 2003 following the collapse of accounting firm Arthur Andersen after it was indicted in the Enron scandal.
The memo, named after its author — Deputy U.S. Attorney General Larry Thompson — laid out nine mitigating factors in deciding whether to push for prosecution, including "voluntary disclosure of wrongdoing" and "any efforts to implement an effective corporate compliance program."
"Boeing scored very well in those factors," the lawyer said.
On a conference call with reporters, a senior Department of Justice official who asked not to be named said: "We looked at all that and we felt this was an appropriate resolution of the case."
By avoiding an admission of corporate guilt, Boeing will make it difficult for others to pursue claims against the company on the same matters.
One outstanding claim is a civil suit brought by Lockheed Martin alleging damage from Boeing's use of the stolen proprietary documents.
But that racketeering lawsuit brought in Orlando, Fla., is stayed. It will remain so, said a Lockheed spokesman, pending approval by the government of an agreement announced a year ago between Lockheed and Boeing to merge their space-rocket businesses. If that approval is granted, as expected, Lockheed will withdraw the suit.
Technically, Boeing is on probation. A government prosecution could be resurrected, according to the Justice Department statement, if within the next two years an executive commits federal crimes and Boeing fails to report the misconduct.
But provided it keeps clean for that period, the dark clouds over Boeing will be lifted. Chief Executive Jim McNerney is "real pleased," said a person who talked with him about the agreement.
The tentative settlement is expected to be finalized in the next few weeks. The Department of Justice said the final agreement will include appendices "that lay out the facts and put the culpability of Boeing in perspective."
Dominic Gates: 206-464-2963 or dgates@seattletimes.com

Price of Boeing scandals: $615 million U.S. penalty
By Seattle Times staff
May, 2006
Boeing has agreed to pay $615 million to settle the federal investigations into contracting scandals at the company, The Wall Street Journal reported online Sunday night.
Details in The Journal story were confirmed to The Seattle Times by a person familiar with the proposed settlement. A Boeing spokesperson declined to comment.
Boeing will pay what The Journal termed "the largest financial penalty ever imposed on a military contractor for weapons-program improprieties," but it will not face criminal charges or make any admission of wrongdoing.
The deal would bring to a close government investigations the company has faced on two fronts.
One involves contracts tainted by the illegal recruitment of Air Force procurement official Darleen Druyun, which led to the 2003 firing of both Druyun and Boeing Chief Financial Officer Michael Sears and the resignation of CEO Phil Condit. Druyun and Sears served prison time.
The other scandal involved Lockheed Martin documents improperly acquired by Boeing when the companies were competing for government rocket launches in the late 1990s.
In the pending settlement, The Journal said, prosecutors have agreed not to move against Boeing or executives as long as the company and senior management don't break the law in the next two years.
The agreement doesn't cover certain midlevel employees of Boeing's rocket-making unit.
The Journal story said Boeing and the Justice Department have agreed on major points of the settlement, though the details have not been formally approved yet.
Boeing, The Journal said, will acknowledge improper behavior by a few employees but won't acknowledge that prosecutors have evidence to justify seeking felony charges against the company. And the final agreement will not use the phrase "criminal penalty," but rather "monetary penalty."
Aside from ending a set of investigations that loomed over Boeing's federal contracting efforts, the settlement will make it more difficult for Lockheed to pursue its separate civil claims against Boeing.
Any admission of wrongdoing on Boeing's part would have benefited Lockheed's case, which is pending. And the federal settlement means the government won't be filing any more documents that could be useful to Lockheed's case.
Seattle Times aerospace reporter Dominic Gates contributed to this story.