When executives blow the whistle, the echo is apt to be shrill. Those who toot on flab or fraud need strong ears and finances
Beltsville, Md. — `IF you blow the whistle on the government,'' says Bertrand Berube, ``you're going to lose.'' Three-and-a-half years ago, Mr. Berube was effectively the No. 3 man at the General Services Administration. He managed a $2 billion budget and 7,000 employees. He rode in a limousine and traveled around the country each month, making speeches about construction management.
Today, Berube, a compact, silver-haired man, owns a woodworking company. He claims he was illegally fired for identifying waste and mismanagement at the GSA, and he'll go all the way to the Supreme Court to prove it.
The stories of Bert Berube and whistle-blowers like him suggest that the price of bucking the government - the price to one's career, life style, and emotional peace - is prohibitive indeed.
Over the past few years, whistle blowing has developed a certain mass appeal, a David-vs.-Goliath image that has been enhanced by public and congressional outcry against government waste, fraud, and mismanagement. With the explosion of the space shuttle Challenger, the cost of governmental mistakes and misjudgments became tragically clear.
But if whistle blowing is good for one's conscience, it can be deadly for one's career. After two engineers at Morton Thiokol testified before Congress about problems with the Challenger, they found themselves in menial jobs. They were reinstated after adverse publicity. But their case is not typical: Rarely are whistle-blowers in public view thus protected. `No openings at this time'
If the whistle-blower does leave or lose his job, he often has trouble finding another. Berube received several tentative offers from private companies after leaving the GSA, ``right to the point we were talking about vacation and health benefits,'' he says.
``I wouldn't hear from them for a week. Then I'd get a letter: `We have no openings at this time,' and I'd know what happened. They'd checked with the GSA.'' He finally realized he'd never get a job in private industry.
Such examples have made people in government wary about speaking up. In 1983 (the last year the survey was done), 69 percent of federal employees who claimed personal knowledge of some sort of wrongdoing chose not to report it, according to the Merit Systems Protection Board.
Some 37 percent gave ``fear of reprisal'' as a reason for failing to report, up from 20 percent three years earlier.
A.Ernest Fitzgerald, the Air Force auditor who identified cost overruns on a Lockheed cargo plane and is now perhaps the nation's most famous whistle-blower, told a group of senior government executives at a recent conference that ``government employees have fewer rights than mobsters.''
He and others say government watchdogs are operating in an increasingly hostile environment. Recent court cases have undermined their free-speech rights. The cost of fighting the government in court to retain one's job is out of reach of most bureaucrats. And the system that protects federal employees from reprisal, critics say, is simply ineffective.
That system was set up in 1978, under the Civil Service Reform Act. The Merit Systems Protection Board, a bureaucratic court, was created to hear cases of wrongdoing in government, including those in which employees believed they were being punished for speaking up. The law set up an Office of Special Counsel (OSC) to investigate such cases, and, if sufficient evidence exists, to represent the employee before the board, prosecute the manager, or both. What is a whistle-blower?
But this office rarely sides with the whistle-blower, says Tom Devine, legal director of the Government Accountability Project (GAP), a nonprofit law firm that represents whistle-blowers. If it does bring a case before the board, he says, ``it's a near-miracle for the whistle-blower to win.''
Since its inception, says Mr. Devine, the OSC has turned down 99 percent of the whistle-blower cases without attempting disciplinary or corrective action. And the two major cases in which the office did prosecute a manager for reprisal and the Merit Systems Protection Board agreed with the OSC have been overturned by federal district courts.
``Many people who make complaints and seek the protection of whistle-blowers are not whistle-blowers,'' notes Mary Wieseman, the special counsel.
She says the percentage of cases that are worthy of bringing before the Merit Systems Protection Board is small. ``You have to be able to prove [reprisal] in an adversary proceeding.'' That means showing that someone is protecting misconduct and retaliating against the whistle-blower - harassing, demoting, firing, etc. - for calling attention to the wrongdoing.
Even among government employees, there is the feeling that some of those calling themselves ``whistle-blowers'' are merely trying to cover up for poor performance.
David Martin, head of the Office of Government Ethics, says he tells high-level supervisors in federal government that when there are budget constraints, cutbacks, or a change in mission, misconduct allegations increase.
At these times, he says, ``You had better carry out your duties with all the ethical conduct that you can muster, because when things go wrong, when people get fired, you will be looked at and there will be allegations against you.'' Whistle blowing on a shoestring
Support systems for legitimate whistle-blowers are few - and working at capacity. The most recognized organization is GAP, whose five full-time lawyers, two part-time lawyers, and a number of legal aides provide free legal assistance for whistle-blowers. This year GAP will get 600 to 700 requests. It can handle only one-sixth of them, and after seeing GAP's snug office in Dupont Circle, one wonders how its staff keeps track of those. The rest of the cases will be referred to private lawyers.
GAP is also training lawyers around the country to handle regional issues. It worked with lawyers near the Seabrook nuclear power plant in New Hampshire on the finer points of the nuclear and environmental law.
Increasingly, foundations such as the Babcock Foundation, the Fund for Constitutional Government, the Veitch Fund, and the Mott Warsh Foundation are opening their checkbooks to GAP, whose budget has gone from $12,000 a year to $450,000 since 1979. For other groups, however, these are lean times.
``The whistle-blower protection movement is bankrupt right now,'' says Loebe Julie, head of the Coalition to Stop Government Waste. He and two co-workers are lobbying for the Whistle Blower Protection Act, which passed the House last session but stalled in the Senate.
If money is scarce, moral support is not.
Don Soeken, a social worker and onetime whistle-blower on the issue of psychiatric tests for government employees, gives advice to whistle-blowers on keeping their jobs, and he is trying to set up a hot line.
Among his tips: Don't go public with the information, but give it to someone who can give it to your agency's inspector general. If you go public, have money saved up for legal bills, and don't leave your position until you bargain with the agency about your references.
He suggests extra caution for those with access to classified information, since a court case last year ruled that leaking to the press information that relates to national security - even if such information is already public - can lead to a prison sentence. Patches of change
For some whistle-blowers, particularly state employees, there are signs that protection from reprisal is being beefed up. Twenty-six states have passed laws that allow employees to sue their employers for punitive damages if they can prove that they were harassed or fired because of legitimate whistle blowing.
Earlier this year, Congress amended the False Claims Act to allow whistle-blowers to get as much as 30 percent of the damages when the government sues a company for fraud. The amendments also bolster protection against reprisal.
Lawyers are beginning to apply laws generally used for corporate whistle-blowers, and this is helping to get cases that involve federal employees heard by the Department of Labor instead of by the less receptive Merit Systems Protection Board.
There is, of course, a social and emotional toll that legislation cannot ease. Strain on one's family and friendships can be great, and the divorce rate among whistle-blowers is high. Mr. Berube eventually found he was ``tolerated'' by his friends, but ``intellectually ostricized; they couldn't understand why I'd jeopardize my wife and family for my ethics.''
When he couldn't find a job, he worked for his son repairing boats. His wife got a job at a gift store, but they still had money only for food and mortgage payments. He laughs about the old Ford he drove, which was recently in a demolition derby.
After having photocopied some papers recently, Berube paused at the door of his building. ``If you told me three years ago that I'd be running a woodworking shop,'' he said, ``well, I don't think I would have believed you.''