published November 7, 2000
30 days to decide on whistleblower lawsuit
Whistleblower seeks $139,789 from
BY JAMES DREW
COLUMBUS - If the U.S. Department of
Labor sides with Paul Jayko, a state environmental regulator seeking
protection as a whistleblower, then the state may be forced to
reinstate him as site coordinator of the leukemia investigation in
Marion, O., and pay him $139,789.
But if the government does
not take up Mr. Jayko’s case, then Ohio will be shielded from the
decision of administrative law Judge Thomas F. Phalen,
U.S. District Judge Edmund Sargus yesterday gave the
Labor Department 30 days to decide whether to sue Ohio on behalf of
the state environmental investigator.
Last month, Mr. Phalen
ruled that Mr. Jayko was punished wrongly for his role in starting
an investigation of leukemia cases at the River Valley schools
complex near Marion.
The decision yesterday left attorneys
waiting for the next step.
Mark Quinlivan, senior counsel for
the Department of Justice, said the Labor Department has not decided
whether to intervene.
The issue before Judge Sargus was
whether the state of Ohio has constitutional protection - referred
to as "sovereign immunity" - from Mr. Jayko’s attempt to be
reinstated to his job as site coordinator of the leukemia
investigation and Mr. Phelan’s order that the state pay Mr. Jayko
The state attorney general’s office said the state
has immunity because Mr. Jayko sought damages as a private
individual. A state’s sovereign immunity does not bar a suit by the
federal government to enforce a federal law, state attorneys
But Mr. Jayko’s attorney, E. Dennis Muchnicki, said the
state waived its sovereign immunity because it appealed a decision
by the federal Occupational Safety and Health
Judge Sargus, appointed by President Clinton,
said Mr. Phelan’s decision cannot be enforced without action by the
Department of Labor. As a result, federal officials must decide
whether to take over Mr. Jayko’s case within 30 days, Judge Sargus
The issue would be moot, however, if the state
Environmental Protection Agency reinstated Mr. Jayko and paid him
$45,000 in compensatory damages and $45,000 in punitive damages, Mr.
"The state could comply with the law for
once. That’s how it’s supposed to be done. They’re lawless," he
Mr. Jayko filed a complaint in July, 1998, with OSHA,
accusing the Ohio EPA of discriminating against him by removing him
as site coordinator for the investigation at River Valley
The schools were built in 1962 on 78 acres the
military used to burn or bury tons of highly toxic
OSHA sided with Mr. Jayko, and the state appealed
to an administrative law judge who hears Labor cases. Mr. Phelan on
Oct. 2 ordered the state to reinstate Mr. Jayko as site coordinator
and pay him $139,789.
The state appealed the decision to the
Labor Department’s Administrative Review Board and sued the federal
government, claiming that sovereign immunity bars Mr. Jayko from
pursuing his case.
Mike Griffith, a geologist and member of
an activist group called Concerned River Valley Families, said he
was disappointed with yesterday’s decision by Judge
"I would encourage the U.S. Department of Labor to
get involved on Mr. Jayko’s side because someone has to make the
Ohio EPA do its job," he said.