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EPA official says staffer was moved to prevent 'leaks'

July 31, 1999

The Ohio Environmental Protection Agency pulled its chief investigator off a high-profile cancer case in Marion, O., last summer because it feared the type of information he might leak to the public, according to testimony yesterday from one of the agency's supervisors.

Bruce Dunlavy, manager of the agency's division of emergency and remedial response division for northwest Ohio, testified in a Perrysburg courtroom that one of his superiors, Jeff Steers, said during a meeting last summer that they needed to reassign Paul Jayko because he was a "potential pipeline to the media in the Marion case."

Mr. Dunlavy is third-in-command of the Bowling Green district office. Mr. Steers, the district's assistant director, is second-in-charge.

Mr. Jayko, a Toledo resident who has been employed as an Ohio EPA site coordinator since 1991, claims the agency violated federal whistleblower laws by suspending him for 10 days and taking him off the case in Marion, where an unusually high rate of leukemia has been reported among graduates of River Valley High School.

The school was built on a former military dump. Mr. Jayko was the agency's lead investigator on the case until last summer.

Several Ohio EPA managers testified during a nine-day hearing that Mr. Jayko was disciplined because of a failure to communicate. Yet other people in the agency said Mr. Jayko was one of their most-respected employees, and that charges of drinking two beers before a night meeting and falsifying an expense report were drummed up to justify the decision to reassign him.

Mr. Dunlavy's testimony was crucial, because he had access to management meetings, according to Mr. Jayko's attorneys, Dennis Muchnicki of Cincinnati and Michael D. Kohn of Washington.

Mr. Steers suggested toning down Mr. Jayko's involvement in the case, although the decision to reassign him ultimately was made by the district director, Ed Hammett, witnesses said.

"The expectation was that [Mr. Jayko] would know less about what was going on at the site, that he would be going to fewer meetings, that he would be deprived of chances of talking to the public and the media," Mr. Dunlavy said.

Mr. Steers, on vacation until Aug. 9, was not available for comment

Mr. Hammett testified that Mr. Jayko was reassigned because of his performance and style with supervisors.

Carol Hester, Ohio EPA spokeswoman, said the agency believes it has been forthright with Marion residents, and that Mr. Jayko's reassignment has been misinterpreted.

The case was heard by Judge Thomas Phalen of Cincinnati, an administrative law judge for the U.S. Department of Labor. He said he plans to issue a ruling in late fall.

Mr. Dunlavy said morale at the Ohio EPA's district office in Bowling Green is "the lowest it's ever been" since the action was taken against Mr. Jayko.

Communication among employees has become fragmented, he said.

"The real problem with the unit, as I see it, is that everyone feels there are things going on that they don't know about," Mr. Dunlavy said.

Whistleblower laws were written to protect people from their employers when they bring a safety-related issue to light. Mr. Jayko's case is the first by an Ohio EPA employee to test those laws.

Judge Phalen said they are not easy cases to prove. "The hard part is separating management prerogative and whistleblowing," he said.

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