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Article
published January 5, 2001
Toledo man
claims whistleblower status
U.S.
enters fray to aid Ohio EPA employee
BY JAMES
DREW
BLADE COLUMBUS BUREAU CHIEF
COLUMBUS - In
another setback for the Ohio Environmental Protection Agency, the
federal government has sided with a Toledo man who is fighting to
get his assignment back investigating possible links between
pollutants and leukemia in Marion.
In July, 1998, Paul Jayko
filed a complaint with the federal Occupational Safety and Health
Administration, accusing the state EPA of violating whistleblower
laws by removing him as site coordinator at the River Valley Schools
near Marion.
The schools were built in 1962 on 78 acres the
military used to burn or bury tons of highly toxic chemicals.
Graduates have higher than normal rates of leukemia.
A
supervisor testified that high-ranking EPA officials disciplined and
reassigned Mr. Jayko because they believed he was providing
information to reporters. EPA officials have denied the
accusation.
Since filing the complaint, Mr. Jayko has been
locked in a legal battle with the state. He continues to work as a
site coordinator in EPA’s Bowling Green district office, but the
state has fought an order to reinstate him to the Marion
case.
Late Wednesday, the federal government filed papers in
Washington, D.C., to intervene on behalf of Mr. Jayko, saying it
agrees that the state broke seven whistleblower statutes by
reassigning him.
The U.S. Labor Department took action after
Mr. Jayko’s attorneys filed a lawsuit asking a federal judge in
Washington to order the government to side with Mr.
Jayko.
"The Ohio EPA should be getting his desk ready so he’s
back on the job in Marion on Monday," said E. Dennis Muchnicki, Mr.
Jayko’s attorney.
Mr. Jayko, 44, declined comment, but his
supporters applauded the Labor Department’s decision.
"This
has renewed my faith that maybe the government will do the right
thing on behalf of River Valley and Paul Jayko," said Mike Griffith,
a geologist and member of an activist group called Concerned River
Valley Families.
"How many times does a man have to win? He
is just trying to do the right thing," Mr. Griffith
added.
Heidi Griesmer, an Ohio EPA spokeswoman, said the
agency didn’t know if the Labor Department had intervened on behalf
of Mr. Jayko.
Mr. Phalen ordered the state to reinstate Mr.
Jayko as site coordinator of the Marion probe and pay him $139,789
in damages and lost wages.
At the request of the state EPA,
the state Attorney General’s office appealed Mr. Phalen’s decision
to the Labor Department’s Administrative Review Board.
The
state also sued the federal government, asserting that Ohio has
constitutional protection - referred to as "sovereign immunity" -
that bars Mr. Jayko from pursuing his case.
U.S. District
Court Judge Edmund Sargus ruled in November that Mr. Jayko’s case
could advance if the Department of Labor intervened on Mr. Jayko’s
behalf. If the federal government did not intervene, sovereign
immunity shielded the state from Mr. Phalen’s order, Judge Sargus
ruled.
One option for the state is to appeal Judge Sargus’s
ruling to a federal appeals court in Cincinnati. That decision has
not been made yet, the Attorney General’s office said.
The
legal dispute could end up before the U.S. Supreme Court, said
Michael Kohn, general counsel for the National Whistleblower Center,
which has helped represent Mr. Jayko.
The next step is for
the Labor Department’s Administrative Review Board to hear the
state’s appeal of Mr. Phalen’s decision.
Mr. Kohn said he
will try to add the names of high-ranking EPA employees involved in
the Jayko case to the complaint, to make them personally liable for
punitive and compensatory damages.
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