27th Annual Meeting and Symposium of the
Desert Tortoise Council, March 22-24, 2002
Abstracts

Professional Ethics Within Public Service: The New Incompatibility

Jeff Ruch
Executive Director, Public Employees for Environmental Responsibility (PEER), 2001 S. Street, NW, Suite 570, Washington, D.C., 20009

Introduction 

Public Employees for Environmental Responsibility (PEER) is a service organization for state and federal employees who are struggling with natural resource-related issues. PEER assists public employees in removing or resolving obstructions to environmental protection, especially when those obstructions are lodged within the employee's own agency.

PEER has worked on desert tortoise issues but, unlike the Desert Tortoise Council, we are not focused on a particular species or a habitat or a physical ecosystem. Our target ecosystem is the inner workings of public agencies - their culture, operations and ethics.

To be healthy, an agency "ecosystem" needs to be penetrated by light, that is, to be transparent. It should be ventilated by new information, accommodating the wafting flow of both good and bad news in to its management and out to affected publics. It should also foster diversity and be tolerant of a healthy range of opinion within its professional staff.

In short, PEER's mission is to help employees restore or maintain a healthy agency ecosystem.

The New Challenge 

Without harping on the changes occasioned by the Administration of George W. Bush, especially in the Interior Department, it should be noted that the transition is only now just beginning. The events of September 11, the slow pace of nominations and the clumsy handling of early issues have all slowed the pace of new policy formulation and key personnel changes.

In the Bureau of Land Management (BLM), for example, the removal from line positions of moderates such as Idaho Director Martha Hahn and California Desert Conservation Area Manager Tim Salt bode ill for the coming years. Notwithstanding the significance of the Bush transition, the underlying dynamic of growing political pressure on natural resource management is truly non-partisan, occurring at all levels of government - federal, state and local - and across the spectrum of disciplines.

Three factors drive this dynamic:

A. The environmental conflicts themselves are becoming both more common and acute. 
Recent NASA satellite photos evidence the extent that urban sprawl now dominates the American landscape. Those of you working in wildlife management know that human/wildlife contacts are becoming more frequent and are often the greatest threat to some species' survival. As a consequence of the inexorable human pressure on the natural world, your job as a natural resource manager is itself more under the gun, so to speak, that ever before. Looking ahead, the conflict between man and nature will only become more acute.

B. The battles are fought on administrative (rather than policy) turf. 
Few politicians propose the outright repeal of the environmental statutes; instead pro-development politicians advocate a different emphasis, interpretation or attitude in enforcing these laws (i.e., everyone, including developers, now claims to be an environmentalist). Consequently, the public portrayal of the conflict is not black and white but swathed in shades of gray.

The locus of controversy is the rigor of a resource statute's implementation - the very area inhabited by resource managers. The result is a pressure to undermine laws on the books; which, in turn, leads to a dysfunctional agency.

A prime example is the federal Endangered Species Act. Following the Republican takeover of Congress in 1995, then Interior Secretary Bruce Babbitt ordered the U.S. Fish & Wildlife Service (USFWS) to slow down or avoid implementing the law in order to save ESA from political backlash. Key listing decisions by Interior then became more the product of litigation from environmental groups whose most powerful weapon is the scientific data gathered by USFWS scientists who are forbidden from using this data in making honest management decisions.

C. The public's scientific ignorance limits political support for agency policies. 
To the layperson, the issues that dominate modern resource management often seem hopelessly technical and arcane. Some have referred to this as "the snail darter syndrome" for the little fish which held up (but, significantly, did not block) a massive and, in retrospect unwise, dam. Mobilizing public support for agency policies rooted in protection of un-charismatic creatures, like insects, or complex natural phenomena can prove especially daunting.

The principal considerations that should govern the resource decisions are scientific. Since biologists are not political scientists (or spin doctors), they often make poor public advocates. As a result, the technical expertise often remains locked inside agency cubicles and is not made part of the public debate. Meanwhile, in the absence of a persuasive scientific case, the advocate with the best slogan carries the day.

The Endangered Agency Scientist

Caught in the middle of this tug of war are the agency scientists, land managers and law enforcement officers. The archetypal setting for political pressure that we see at PEER involves a multi-million dollar project hinging on the evaluation of a single field biologist. The field biologist, in essence, holds the future of the project in his or her hands. In this way, even field specialists can be found at the apex of intense political pressure. In a growing number of cases, that staff member cannot count on support from his or her chain-of-command in making a professional assessment.

Thus, agency professionals are increasingly at career risk simply for doing their jobs. Three examples from the U.S. Forest Service illustrate:

* The agency's leading goshawk scientist in Arizona had an up and coming career until his research on the amount of undisturbed land area required for a successful mating pair of the birds was used by local environmental groups as evidence in a lawsuit against proposed timber cuts. In order to defeat the suit, the Forest Service set about not only discrediting its science but its scientist. The researcher was forced to move to Alaska to save his job. Through no action of his own, except what he had been doing for years, this scientist went from "Golden Boy" to "Public Enemy Number One" in a twinkling solely because his work had become institutionally inconvenient;

* Similarly, a botanist on a North Carolina national forest ended her career by discovering rare plants in an area slated for a timber sale. After she refused to renounce her find, she was confined to doing all future plant surveys in the dead of winter until she finally quit in disgust; and

* Forest Service special agents who uncovered massive commercial timber theft in Oregon and California all lost their positions in a curious re-organization. Today, the Forest Service has no single unit dedicated to investigating timber theft on our national forest system. The agency explains that such a unit, of any size, is not cost-effective and deprives the agency of maximum flexibility in its use of investigative staff. Not surprisingly, the agency has stopped bringing multi-million dollar timber theft cases for prosecution.

None of these people considered themselves "whistleblowers." They were simply doing their jobs and get caught sideways in agency politics.

The Limits of Law

For employees caught in the undertow of these politics, the legal tools available are sometimes unreliable. By way of brief overview, the three principal areas of law involved in these cases are:

The First Amendment

Precisely because public employees work for government, the First Amendment protects them on the job in a way their private sector counterparts are not protected.

The First Amendment is not without limits and those limits are murkily defined. In a public agency context, employee speech is protected so long as it does not impair the efficient functioning of the public agency. See e.g., United States v. National Treasury Employees Union, 513 U.S. 454 (1995); Pickering v. Board of Ed. Of Township High Sch. Dist. 205, 391 U.S. 563 (1968); Sanjour v. EPA 56 F. 3d 85 (1995).

First Amendment cases generally provide only injunctive relief not monetary damages and thus have restricted utility. In order to vindicate First Amendment rights the employee must file formal litigation (literally "make a federal case out of it"), a step that usually requires legal counsel and can entail considerable time and expense.

For employees undergoing daily, low level harassment due to the circumstances of their jobs rather than speaking out, First Amendment litigation may not be at all a practical avenue.

Whistleblower Laws

There are two basic types of whistleblower statutes: those protecting civil servants and those rooted in a particular statute, such as the Clean Air Act or the Clean Water Act.

Civil service statutes generally limit employees to an administrative forum with circumscribed remedies. California is a notable exception: state employees may bring civil actions for monetary damages under legislation PEER drafted that became effective January 1, 2000. Consequently, California has one of the strongest state employee whistleblower laws in the nation. See Cal. Gov. Code §§ 8547, et. seq.

Civil service statutes also require that the employee report some form of misconduct and limit protection only to retaliation caused by management knowledge of that disclosure. Most civil service whistleblower laws do not protect employees for -

• Merely doing their jobs;

• Expressing reasonable scientific conclusions; or

• Adhering to professional ethical standards.

By contrast, statute-based federal whistleblower laws broadly protect employee disclosures that further the enforcement or the administration of that particular law. See, e.g., the Clean Water Act provisions at 33 U.S.C. § 1367. Seven major federal environmental laws have similar provisions; all are enforced by the U.S. Department of Labor. While these statutes are broad there are drawbacks:

• Patchwork Protections. Protected speech is limited only to those disclosures furthering the particular statute. Thus, a disclosure relating to the Endangered Species Act (which lacks a whistleblower provision) would be outside the scope of the Clean Water or Clean Air laws.

• Very Short Statute of Limitations. Claims must be made within a very short period, ranging from 15 days to 6 months, depending on the statute, following the act of discrimination or retaliation from which the employee seeks relief.

• State Employees May No Longer Be Protected. Due to a string of U.S. Supreme Court cases during the past two years, an expanded doctrine of state sovereignty rooted in the Eleventh Amendment may preclude state employees from citing state agencies under federal law. PEER is litigating the lead case in this area on behalf of Rhode Island's top state hazardous waste scientist. That case is now pending before the federal First Circuit.

The Appearance of Impropriety 

This final area is the least defined and most slippery of the lot. In many cases, resource agency employees are counseled that they cannot be involved in environmental issues or organizations in their off duty time because it would create the appearance of a conflict.

As the employee has no financial interest in these matters, in a strict sense there can be no "conflict of interest." Instead, the agency contends that the employee who is an off duty activist is guilty of the appearance of impropriety or partiality. At the federal level, the statutory bulwark of this prohibition can be found in 18 U.S.C. § 205 which bars a federal employee from acting as "an agent or attorney" against the United States in any "case or controversy."

In February of 2000, the limits of this statute were decided in the case of Jeffrey van Ee, an EPA electrical engineer based in Las Vegas who, on his own time, became an advocate for the desert tortoise. Many of you probably know his story. After ten plus years of litigation, the U.S. Court of Appeals for the District of Columbia ruled that van Ee had a constitutional right to advocate, belong to advocacy groups, serve as a spokesperson and on boards of organizations concerning matters of public interest.

The Court, however, declined to strike down 18 U.S.C. § 205 as unconstitutional and only struck down EPA's interpretation of the statute as overly broad. Thus, there remains more of this legal swamp to drain.

Delivering the Message Without the Messenger

As a practical matter, few agency scientists want to invest the time, emotion and often the sizeable expense of being a legal test case. At PEER, we constantly remind public employees that if they must fight their agency try to pick a terrain other than their own personnel jackets.

Moreover, even employees who win personnel litigation against their agency often cannot truly be restored to the same career path, professional standing or peace of mind, prior to the matter arising. The very employees conscientious enough to take career risks over ethical issues are precisely the people who need to stay in public service.

PEER is not trying to create martyrs; we are trying to solve the environmental conflicts facing conscientious civil servants. To fill this role, PEER has developed a number of techniques designed to deliver the message to the agency while masking the identity of the messenger:

• Anonymous Activism. Under this technique, PEER, a professional society, employee union or environmental organization serves as a vehicle for employee disclosures. With painstakingly careful planning and by using tools of collective disclosure, such as all-employee surveys or anonymously authored white papers, the identity of the true source can be protected;

• Pen Pal Privileges. PEER allows employees to use or organizational stationery to communicate back with their own agency. Thus, many of our Freedom of Information Act (FOIA) requests are actually drafted by the employee who is the custodian of a critical document but are signed by a PEER staff attorney. Through this technique, employees can file comments under the National Environmental Policy Act (NEPA) or under a counterpart state act. Any form of administrative interaction that a citizen can have with a public agency, a public employee can have as well; and

• Litigation. While PEER does provide legal representation in the form of legal defense for whistleblowing or other protected speech, our preferred approach is to play legal offense, if you will, rather than employee defense. Since public employees are discouraged (and often legally prohibited) from suing their own agency for environmental malfeasance, PEER files citizen suits or other environmental enforcement actions in their place with the public servants as the unnamed but nonetheless quite real parties in interest.

In our experience, if the public agency is forced to confront the substance of an issue, without the ability to divert the debate or change topics, half the battle is won because in the clear light of day with focused public attention on the issue, most public agencies will do the right thing - only so long as the spotlight is squarely on them. 

Conclusion

PEER is premised on the belief that, despite appearances to the contrary, public employees retain the full rights of citizenship. As such, public employees have the right as well as the ethical duty to be activists in the public interest. The role of PEER is to provide employees with ways to safely exercise their free speech rights by using their freedom of association - and to defend them when those rights are threatened. The acronym PEER connotes public servants as equals not relegated to a neutered, second class status.