the ART of Anonymous Activism: Serving the Public While Surviving Public Service POGO The Project On Government Oversight investigates, exposes, and seeks to remedy systemic abuses of power, mismanagement, and subservience by the federal government to powerful special interests. Founded in 1981, we are a politically-independent, nonprofit watchdog that strives to promote a government that is accountable to the citizenry. 666 11th Street, NW ❚ Suite 500 ❚ Washington, DC 20001-4542 202.347.1122 ❚ 202.347.1116 (fax) ❚ www.pogo.org GAP The mission of the Government Accountability Project is to protect the public interest and promote government and corporate accountability by advancing occupational free speech, defending whistleblowers and empowering citizen activists. We also advise public agencies and legislative bodies about management policies and practices that help government deal more effectively with substantive information and concerns, while protecting the jobs and identities of those who provide this critical information. 1612 K Street, NW, Suite 400 ❚ Washington, D.C. 20006 202.408.0034 ❚ 202.408.9855 (fax) 1402 Third Avenue, Suite 1215 ❚ Seattle, Washington 98101 206.292.2850 ❚ 206.292.0610 (fax) ❚ www.whistleblower.org PEER Public Employees for Environmental Responsibility is a private, non-profit organization that protects the government employees who protect our environment. PEER works with and on behalf of these resource professionals to effect change in the waygovernment agencies conductbusiness. PEER promotes environmental ethics and governmentaccountability. 2001 S Street, NW, Suite 570 ❚ Washington DC 20009 202.265-7337 ❚ 202.265-4192 (fax) ❚ www.peer.org the ART of Anonymous Activism: Serving the Public While Surviving Public Service Serving the Public While Surviving Public Service Contents Forward..............................................................................................................................................................i Introduction....................................................................................................................................................iii Blowing The Whistle May Be Hazardous To Your Professional Health..........................................1 Downsides are Apparent.........................................................................................................1 Check Your Parachute Before You Leap—A Checklist for Whistleblowers......................................................................................................................4 A Better Way..................................................................................................................................7 Deliver the Message, Not the Messenger..............................................................................................9 Advocacy Partners......................................................................................................................9 Collective Voice.........................................................................................................................12 An Anonymous Publishing House..................................................................................13 Pen Pals and Other Surrogates..........................................................................................16 Official Channel Swimming: Starting & Monitoring Agency Investigations.............................19 Inspectors General: Trivial Pursuits.................................................................................19 Shaking of Jowls: Congress and GAO............................................................................23 Official Disclosures...................................................................................................................24 The Freedom of Information Act (FOIA)...................................................................28 The Medium is the Message....................................................................................................................31 If It Bleeds, It Leads..................................................................................................................31 Reporters Are Not Your Friends.......................................................................................33 The Morning After—Yesterday’s News........................................................................36 The Law—Don’t Leave Home Without It!...........................................................................................39 Rights and Options..................................................................................................................40 The First Amendment................................................................................................42 Anti-Gag Statutes.........................................................................................................45 Civil Service Laws and Collective Bargaining Agreements.......................45 The Whistleblower Protection Act.......................................................................46 Environmental Statutes.............................................................................................50 The False Claims Act...................................................................................................53 Other Laws of Note......................................................................................................54 Danger Zones..............................................................................................................................55 Legal Lane Changes..................................................................................................................60 Conclusion...................................................................................................................................................65 Notes...............................................................................................................................................................66 Forward W hen Paul Revere rode to Lexington to warn Sam Adams and John Hancock that the British troops were coming to arrest them, it is said that a sentry asked him not to make so much noise. Revere responsed, "Noise?! You'll have noise enough before long." After successfully warning the citizenry, Revere was himself arrested. During this famed ride, Revere lit lamps and had them hung high in a local tower. I have always preferred the term "lamp lighter" to whistle-blower. We can holler and shout but it's the lamplight that shines on corruption, injustice, ineptitude and abuse of power. We reveal villains as they try to scurry into the woodwork in hiding. We're often told: "Don't make so much noise," but we can reply, "you'll soon hear noise enough before long." As a plainclothes cop with the NYPD, I was threatened with arrest, detained unnecessarily, and repeatedly harassed by local and federal agents in the U.S. and overseas. This was part of the price I paid as a whistleblower. Government oversight means dealing with "the little big guys." I say little big guys, because I remember when big shots were exposed, they broke down like little babies. Without the protection power affords, they stood as naked as the fabled emperor. Cornel West says it takes more courage to muster the exercise of critical intellect than to fight on the battlefield. At a time when Americans are coming dangerously close to losing our individual freedoms in the name of security, I shudder at the thought of living in a country without lamp lighters to ignite the torch of liberty as a beacon, welcoming the assembly of freedom loving people. We must support and inspire each other. Whistleblowing is no small task we undertake. The Art of Anonymous Activism gives us the tools and guidance necessary to "make noise" in defense of our fellow citizens while protecting ourselves from harm. Read it carefully, and light those lamps. —Frank Serpico Frank Serpico was a former New York City police detective who revealed widespread corruption in the NYPD. Serpico's efforts to uncover bribery and kickbacks nearly cost him his life, but his testimony at hearings held by the Knapp Commission underscored their findings of institutionalized corruption throughout the police. the ART of Anonymous Activism i Two roads diverged in a wood, and I- I took the one less traveled by, And that has made all the difference. —Robert Frost, The Road Not Taken Introduction T oday, more than ever, institutions that break the law, commit fraud, harm public health, or pollute the environment have good reason to fear the whistleblowing of a conscientious employee. Depending on the severity of the corruption identified and the skill with which that corruption is presented to the public, a knowledgeable individual can precipitate damaging Congressional hearings, front-page newspaper stories, and major television coverage. Deciding to blow the whistle—either publicly or as an anonymous source— can be the single most important decision an individual ever makes. It can certainly seem glamorous in light of such publicly-aggrandized individuals like FBI agent Colleen Rowley, Enron executive Sherron Watkins, and tobacco industry insider Jeffrey Wigand. But beyond the limelight of these public icons lies a darker and more likely reality for those who choose to follow their conscience. Retaliation against federal employees who blow the whistle is widespread and poses a significant barrier to the free flow of information about govern- ment operations to the public. According to government surveys, since 1992, one in fourteen federal employees reported being retaliated against in the previous two years for making disclosures concerning health and safety dangers, unlawful behavior, and/or fraud, waste, and abuse1. Other surveys of govern- ment workers reflect a significant non-reporting of problems due to percep- tions that such reports will not do any good or will merely trigger reprisal. In the 1994 amendments to the Whistleblower Protection Act passed by Congress, the director of each federal agency was directed to ensure that “agency employees are informed of the rights and remedies available” under law2. Today, more than eight years later, that mandate to educate federal employees about their rights and options largely remains unfulfilled. Conse- quently, information like that contained in this publication is made available to very few federal employees as part of any post-hiring orientation, supervisory training or in-service training. the ART of Anonymous Activism iii However, a more significant problem is that whistleblower laws for federal workers have degenerated to the point that they are counterproductive. For all practical purposes, due to hostile judicial activism they have become a trap creating more victims than they help. Groups that fought for years to pass these laws now must warn whistleblowers that attempting to defend themselves with legal rights may be as dangerous as risking reprisal by blowing the whistle in the first place. As government institutions and private companies grow larger and less accountable for their actions to the public, the very health of democracy in the U.S. and the long-term viability of its economy depend upon these truth-tellers to shine light on corruption. The Art of Anonymous Activism is intended to help employees confronting these difficult ethical issues in their work places. The classic confrontation that this publication addresses is the public servant being forced to choose between conscience and career. At its most stark, the public employee is confronted with a direct order or unmistakable intimation to violate the law or to overlook violations of law. This imposes unpalatable choices between the threat of discipline for insubordination, potential liability for knowingly sanctioning violations of law, or violating the Code of Ethics for Government Service by remaining a silent observer who passively acquiesces to betrayals of the public trust. This publication provides useful guidance to public employees in order to prevent the occurrence of these irreconcilable conflicts or, in the event that these conflicts arise, to make the best choices available. Thus, The Art of Anonymous Activism is a survival guide for public employees. Its most important point is that it is possible to fight wrongdoing from within government agencies without sacrificing your career. At the same time, the need for public employees to have this information has never been greater. There is a growing movement to repeal civil service protections coupled with a deteriorating appreciation for the underlying values girding the merit system among our nation’s top political leaders. Exposing and resolving problems caused by political pressure within government agencies should not be a job only for those willing to risk their careers. There is a vibrant community of concerned citizen activists who seek to aid these patriots who struggle to serve the public good. The Art of Anonymous Activism is an attempt to connect conscientious public servants laboring in office cubicles, field stations and laboratories across the country with their true employers, the American taxpayer. Three organizations with many years of experience supporting whistleblowers have contributed to this manual—Government Accountability iv the ART of Anonymous Activism