Whistleblowers and the Law
By Robert Pack
Photographs by Howard Ehrenfeld

whistleblower-An employee who refuses to engage in and/or reports illegal or wrongful activities of his employer or fellow employees.
     Black’s Law Dictionary

The presence of the federal government in the District of Columbia has made Washington ground zero for an unusual type of practice: whistleblower law.

In addition to a small coterie of private lawyers who take on whistleblower cases, Washington is home to a federal agency, the U.S. Office of Special Counsel, which is charged with the responsibility of attempting to resolve disputes that arise from whistleblower allegations within the federal government before they go to court. The District is also home to the National Whistleblower Center, a nonprofit advocacy organization committed to protecting the rights of employee whistleblowers in both the private and public sectors.
     "While I was in law school in 1982," says Steve Kohn, founder of the National Whistleblower Center, "I worked on a whistleblower case for a public interest community organization. That was when I learned there was such an area. It was a very new area then, and it’s still a new field today. I thought it presented a tremendous opportunity."

Every year thousands of complaints are registered by employees who believe their employers are engaged in some sort of wrongdoing. By making their voices heard, these "whistleblowers" frequently risk retaliation. There are statutes designed to protect employees who blow the whistle on what they believe to be employer misconduct, but those statutes are often ignored by wrongdoers eager to protect themselves and cover up their misconduct. As a result, whistleblowers are often forced to sacrifice their own personal self-interest, and wage long, lonely fights in order to do what they believe to be the right and honorable thing.

"What you learn in a good whistleblower case," says Kohn, "is that these clients can be the catalyst for major social change. They can generate major investigations, and expose gross criminal misconduct and wrongdoing. By speaking up, they can accomplish a lot."

In order to learn more about this fascinating, occasionally high-profile, yet little known area of the law, The Washington Lawyer sought out five lawyers with extensive experience in whistleblower law. They include, in addition to Kohn, who is also a partner with Kohn, Kohn & Colapinto, P.C., Lynne Bernabei of Bernabei & Katz, PLLC; Ericka A. Guthrie of the American Federation of Government Employees; Elaine D. Kaplan, head of the U.S. Office of Special Counsel; and William L. Bransford of Shaw, Bransford, Veilleux & Roth.

The Primary Motive
Whistleblower law is not a specialty attorneys should migrate to with the hope of getting rich. "This is not a very profitable practice area," says Lynne Bernabei. "That is why there are so few people doing it."

Most whistleblowers are not wealthy, and they do not have the resources necessary to sustain protracted litigation; yet the cases are often complex and can take years to resolve. Most individual plaintiffs can only afford to hire a lawyer on contingency, which, Bernabei points out, means that "you have to wait years to get paid-assuming the lawyer gets paid at all."

In reflecting on her initiation into whistleblower law, Ericka Guthrie talks of working "very long hours," staying in budget motels, and subsisting on packages of instant noodles because her client could not afford to pay for upscale accommodations. There were times when she drove all night rather than fly because the cost of airfare was prohibitive. The client in this case was a lone individual who was challenging the nuclear power industry, and the disparity in resources was enormous. Such sacrifices, Guthrie says, are "part of fighting for your client."

And she is quick to add, "I never hated going to work. I was always excited. I loved my job."
    That is a common sentiment among lawyers in the whistleblower community. Despite the uncertain pay, the personal rewards of representing whistleblowers can be enormous.

Lynne Bernabei is a former journalist who describes herself as "an activist at heart," and she has discovered that whistleblower law satisfies her yearning to do cause-oriented work. "In many respects," she says, "it’s a lot like investigative journalism because you’re committed to finding the truth. Whistleblowers are people who will not let the obfuscations and the distortions slide by. They are demanding the truth.

"Usually," she continues, "whistleblowers are disclosing something that is of significant public importance. They’re disclosing an illegality, or a gross waste of public money, or mismanagement that has created a serious safety problem. In talking about nuclear whistleblowers, you’re almost always dealing with some sort of serious public hazard."

And therein lies the reward. The primary motive is protecting the public interest and "doing good," not getting rich.

"When a whistleblower blows the whistle, it is often health and safety issues that are at stake," says Steve Kohn. "There’s no money in getting the Environmental Protection Agency or the Nuclear Regulatory Commission to do their jobs. That’s not the sort of action that’s going to bring a huge settlement. But you have to do it. You have to push the issue."
     Ericka Guthrie recalls the excitement she felt after passing the bar exam and going to a job interview at the National Whistleblower Center. "In law school," she says, "I knew I wanted to do some sort of public interest work representing plaintiffs. But it was not exactly clear to me how or where. I was interested in civil rights and social justice, but I didn’t have a clear, well-defined direction.

"Then I walked into the Whistleblower Center and it felt like I’d found my destiny. It was the perfect match. At some of the law firms I’d interviewed with, the attitude was ’Are you good enough to work for us?’ But at the Whistleblower Center the director, Steve Kohn, and a couple other lawyers were sitting together in a conference room and they explained, ’This is what we do, this is who we represent, and we love it!’

"There was this incredible commitment and camaraderie. I walked away thinking, ’Wow! This is exactly what I’ve been looking for.’ "

Even though Guthrie was lured away from the center for a stint at the White House and has since signed on with the American Federation of Government Employees (where she still has the opportunity to represent whistleblowers), her enthusiasm for the practice area remains vibrant. The variety of cases can include matters as diverse as environmental protection, civil rights, consumer safety, public safety, worker safety, and accountability for waste, fraud, and abuse in the government, all of which provide fulfilling work for lawyers seeking cause-oriented cases.

"The cases are fascinating," says Steve Kohn. "It’s an area that combines labor law and First Amendment law. The free-speech element is critical. You’ve got someone with an allegation who wants to be heard, who wants the proper authorities to know about wrongdoing that is going on. Then you’ve got the labor and employment law issues because the whistleblower has put his or her career in jeopardy."

Whistleblower Mentality
Attorneys who regularly represent whistleblowers have become familiar with what they refer to as "the whistleblower mentality." The clients tend to be earnest, well intentioned, and they expect the problems they have identified to be remedied, at least initially.

"A lot of whistleblowers think the system really works," explains Lynne Bernabei. "They think that if they can get to the right person and tell their story, then the company or the agency is going to do the right thing."

Steve Kohn concurs with Bernabei’s description. "Almost all of them," he says, "think they’re going to be congratulated with a handshake."

And when they discover that that is not the way things are going to work, they are shocked and surprised.
     Whistleblowers tend to have "a strong sense of right and wrong," says William Bransford. Whereas a weak personality might back down when confronted by powerful forces, a whistleblower is "not going to let management get away with endangering public safety, or polluting the environment-whatever the cause happens to be." Their strength of conviction, their sense of right and wrong, propels them forward.

Bransford notes that a lot of his clients had no intention of becoming whistleblowers. They fall into that category only with great reluctance. "They don’t know they are whistleblowers until I tell them so," he says with a laugh.

It is not uncommon, Bransford adds, for clients to come in for an initial consultation, and when he explains their right to file under the Whistleblower Protection Act, they don’t want to take that step because they don’t think of themselves as whistleblowers and "they’re afraid of being labeled" as such.

Yet they are also unwilling to back down in the face of threats and reprisals. Their strong convictions won’t let them walk away from the problem they have discovered. They want a resolution that not only protects their jobs and their livelihoods, but also protects everyone who has been endangered or exposed to unfair treatment.

David and Goliath
Attorneys who represent whistleblowers routinely find themselves caught in David-and-Goliath struggles in which they are cast in the role of David.

"The problem in a lot of the cases," says Lynne Bernabei, "is that to fix the problem the whistleblower has identified is going to cost the government or a corporation a lot of money, if the problem is fixable at all. We’ve represented people working on the space shuttle and nuclear whistleblowers, where huge sums are at stake. It’s very expensive to shut down or delay a space shuttle flight, and it might cost a million dollars a day to shut down a nuclear power plant."

Consequently, there is a financial incentive to blame the messenger and challenge the whistleblower’s credibility rather than fix the problem.

In cases where there is a huge disparity in resources, Ericka Guthrie has learned that attitude and determination can be every bit as important as money. Most of the clients she worked with were from nuclear power plants, and they had identified public health and safety violations.

"At the National Whistleblower Center there were a lot of times when we were up against these huge firms," she says. "Steve Kohn and I would go to a deposition, and he would say, ’They’re going to inundate us with 20 boxes of documents, and we’re going to go through every single page.’ Maybe we would be there all night, but we would look through every last piece of paper. Our attitude was, they may have the resources, but we have the determination. We believe in our client; we know the client was right to identify these safety violations. We owe it to the client to fight."

Retaliation
Despite statutes designed to protect whistleblowers from retaliation, some corporations take a hard line, believing that by doing so they are setting an example that will deter other employees from following in a whistleblower’s footsteps. Experienced plaintiff’s attorneys caution against such a policy because whistleblower cases are much easier to settle if the whistleblower has not been fired. This is true even if some other sort of discipline has been taken, such as a reprimand or suspension. Up until the moment of firing, each side has more room to give ground and settle on mutually acceptable terms.

"If the employer takes the whistleblower out, they’ve declared war," says Steve Kohn. "There is no place to retreat, and there’s nowhere for the whistleblower to go except to court. This is something that a lot of companies don’t understand."

Over the long haul, Kohn notes, damages won’t be nearly as large, and the litigation is not likely to be as difficult, if the whistleblower has not been fired.

In many instances, the result of termination for a whistleblower means not only losing a job, but also losing a profession, because whistleblowers are often unemployable in the industries where they have established their careers.

"It is," says Kohn, "like being disbarred for an attorney. Often these people go from having a secure job with a significant income to suddenly finding themselves with no income and no employment prospects."

As an example, Kohn cites the case of a client who was a high-level executive at a power company. After disclosing some abuses at a nuclear power plant the company operated, he was fired. He assumed he could find a new job because he had a lot of friends and contacts in the industry, but he quickly discovered that all his friends could tell him was "Sorry."

"After he went public," says Kohn, "that was it. He was finished."

Retaliation is directed not only at whistleblowers, but also at fellow employees perceived as siding with the complainant. This can make the litigation process psychologically difficult, because a whistleblower is often dependent on witnesses who must risk retaliation themselves in order to testify.

While working at the National Whistleblower Center, Ericka Guthrie noticed that some of her clients came to have regrets about having stood up. "Initially," she says, "the whistleblowers were concerned about safety and people’s health and protecting people’s lives. But as they got deeper and deeper into the proceedings, a lot of times they’d have second thoughts."

Some regretted that they would never be able to return to their former lives and jobs. They had discovered that standing up for principle had made them "toxic" to friends and coworkers, and they would inevitably go through periods where they would wonder, " ’Is it worth all this to be right?’ On the one hand, they would know they were doing the right thing, but on the other hand, they’d be unemployed and in danger of losing their homes. Their colleagues wouldn’t want to have anything to do with them, because just by associating with them they’d put their professional lives in jeopardy.

"As a lawyer, you not only want these clients to win their cases, you need to do whatever you can to help them psychologically and spiritually. These are people who have jeopardized their livelihoods for the safety of the rest of us. You need to help them get to the end of the road in their pursuit of justice."

False Allegations
Of course, not everyone who hurls an accusation of malfeasance at a supervisor or a corporation has a meritorious claim. In addition to the "good cases" where a serious wrong is in need of remedy, whistleblower attorneys routinely encounter people who, in the words of William Bransford, "are not really whistleblowers, but are trying to pretend that they are." Often those engaging in such behavior are problem employees who are trying to use the Whistleblower Protection Act "as a way of getting back at a supervisor or a manager who is holding them accountable."

Steve Kohn acknowledges that judgments have to be made. "The whistleblower blew the whistle for a reason," he says. "You have to look at the reason and decide whether the issue at stake should be championed."

More often than not, he declines. In fact, Kohn says that his law firm, which does approximately 50 percent of its work on a pro bono basis, takes only one or two cases out of every 100 potential clients who contact it. In order to engage the firm’s interest, the evidence of wrongdoing has to be clear and compelling, and the issue involved has to have a significance that goes beyond a personal dispute.

In his practice William Bransford represents both respondents and plaintiffs, and he points out that a whistleblower case can be every bit as traumatic and expensive for a manager or a supervisor as for a whistleblower claiming retaliation. In the federal government a supervisor who has been accused of wrongdoing can go to the general counsel’s office and request advice and representation. But some agencies won’t provide legal assistance. In those cases "the supervisor will have to pay the full freight for his own attorney unless they have insurance coverage. Sometimes people just don’t have the resources to do that."

Bransford also notes that although many of the allegations made against supervisors prove unfounded, the charges can hang over them "for years and years," tainting their careers. Charges of retaliation, he says, "are very easy to make," but often the evidence is equivocal, pitting one person’s word against another’s.

Bransford offers simple, straightforward advice to supervisors who believe they have been falsely accused by a disgruntled employee claiming to be a whistleblower: "Get prompt legal advice and be very careful in how you respond to the probe. If you try to represent yourself, you’re probably going to get into trouble. Even unfair accusations can be career-damaging."

Office of Special Counsel
The federal government takes whistleblower allegations very seriously, and has an established special federal office-the Office of Special Counsel (OSC)-to investigate employee complaints.
     The great advantage of the OSC, says special counsel Elaine Kaplan, is that it provides "a secure channel for those who want to blow the whistle and also protects those who have already done so against retaliation." The OSC can keep the identity of government employees confidential, and it investigates and prosecutes their complaints of retaliation. "Our job is to conduct an impartial investigation, taking neither the side of the complainant nor the side of the agency," Kaplan explains.

Last year the OSC received more than 1,950 complaints from federal government employees, and the allegations covered a wide range of misconduct. Common areas of complaint include civil rights violations, sexual harassment, fraud, environmental protection, and safety concerns. Recent investigations have also included allegations of child abuse at a U.S. school overseas, the use of unsafe public tour boats in a federal park, and the failure to do criminal background checks in an expedited citizenship program.

"When a complaint comes in," Kaplan explains, "we have a screening process where our examining unit looks at the documentation and talks with the complainant to determine whether or not a prima facie case is present. If there’s enough there to merit a full field investigation, then we’ll proceed to the next step and initiate a full investigation."

In launching an inquiry the OSC does have subpoena power, and can compel cooperation from the federal agencies under its jurisdiction.

As a general rule, before federal whistleblowers can proceed to court, they must first give the OSC 120 days to try to resolve the matter. If, after that time, the whistleblower wishes to file an action in the court system, he or she is free to do so.

When the evidence obtained from an OSC investigation substantiates a whistleblower’s allegations of retaliation, the finding is forwarded to the head of the agency involved along with a request for voluntary corrective action. If the agency does not comply with the request, OSC can prosecute the case on behalf of the whistleblower before the Merit Systems Protection Board. OSC also maintains a disclosure unit through which federal agencies may be required to conduct investigations, with their reports forwarded for further action to Congress and the president.

"We can shine a light on misconduct that would otherwise go unnoticed," Kaplan says. "And we can also protect the whistleblower against retaliation."

Even though the system does not always work perfectly, and the OSC has to operate with the limited resources made available by Congress, Kaplan is confident that her office has accomplished a great deal of good by holding wrongdoers accountable and protecting those who have the courage to speak up. "The important thing I feel about my tenure here," Kaplan says, "is that we have gained a lot of trust from within the whistleblower community." And as long as the OSC maintains that trust, she feels it will be passing the acid test.

Satisfaction
The satisfaction derived from the pursuit of cause-oriented work and helping people in trouble is the primary attraction of whistleblower law.

"An employee should have a right to say that there is a safety violation in the workplace," says Ericka Guthrie. "They should have the right to protect themselves and others. The great thing about this field is you can help them protect that right. When people have been wronged for doing the right thing, you can step in and correct it."

That satisfaction, Guthrie insists, more than compensates for the financial sacrifices whistleblower attorneys often make. Reflecting on a truism preached by one of her law school professors, she says, "It’s hard to travel the road less taken, and sometimes it’s hard to take on the poverty that comes hand in hand with working in a public interest field." But, she adds, the satisfaction derived from "standing up for what is right" is a satisfaction that cannot be bought.

D.C. Bar member Robert Pack is the author of numerous books, including Edward Bennett Williams for the Defense.