National Whistleblower Center
3238 P Street, NW
Washington, D.C. 20007
(202) 342-1903

For release: October 5, 2000
For more information, contact:
Michael D. Kohn
(202) 342-6980

Ohio EPA misrepresented the
public about possible health threats;

Judge order payment of exemplary damages;

Ohio EPA appeals

        United States Department of Labor Administrative Law Judge (ALJ) Thomas F. Phalen, Jr., issued a 106 page stinging decision against the Ohio Environment Protection Agency (OEPA)  The decision was issued in favor of Paul Jayko, who had been named the site area coordinator of EPA’s investigation of the cause(s) of a leukemia cancer cluster appearing in the vicinity of Marion, Ohio.  The decision exposed how the agency sought to control information and silence Jayko’s efforts to document deficiencies in OEPA’s investigative efforts.  Judge Phalen specifically found that the agency sought the “deliberate exclusion of Mr. Jayko from important elements of the investigation,” and to  have issued public statements that “constitute a misrepresentation of possible threats to human health that might be found to be present in tests yet to be performed.”  The ALJ went on to note “It is clear . . . that OEPA held him [jayko] in particular disfavor for reasons that may only be attributed to his vigorous prosecution of the Marion Investigation . . . while OEPA management wanted to do something graduated and far less effective.”    

        The ALJ concluded that OEPA’s then Director, Donald Schregardus, along with OEPA’s current Chief of Employment Services, William Kirk, and current Northwest Office District Chief, Ed Hammett, discriminated against Jayko in a manner that was “so contrived, unwarranted and without merit” that it constituted a “deliberate”  violation of law.   The ALJ found Hammett’s testimony to be “deliberately evasive, and lacking in the presentation of any reasonable basis for the transfer of Mr. Jayko from this critical position in the Marion investigation.”   Schregardus’ candor and truthfulness was likewise found to be lacking, as the ALJ found his testimony “to be implausible, and an unwarranted attempt to shield himself” from responsibility.

        The ALJ ordered OEPA to reinstate Jayko as the Marion Ohio Site Area Coordinator; to post the decision through-out its offices; and to pay Mr. Jayko $135,000 in damages, including exemplary damages of $45,000 “due to the willful misconduct and intent to harm him that was apparent” by the agency attempt to falsely accuse Mr. Jayko of theft and drinking while on duty, both of which were found to have been maliciously contrived by the agency to discredit Mr. Jayko.  The ALJ ordered OEPA to pay another $45,000 for the emotional stress the agency exacted on the whistleblower by going as far as referring theft charges to the Ohio State Highway Patrol and for embarrassment and humiliation and harm to his reputation resulting from the deliberate misconduct of tha agency. 

        The current head of the agency, Chris Jones, has decide to appeal the decision, claiming that Mr. Jayko must establish a violation of an environmental statute.  According to Michael D. Kohn, General Counsel of the National Whistleblower Center, a recognized expert in the field of whistleblower law, exclaimed that the legal basis for the appeal stated by Mr. Jones is:
“frivolous in the extreme and contrary to well established case law.  A greater waste of tax dollars is hard to imagine”   
and that: 
“OEPA’s rush to file an appeal is arrogance incarnate.  People should pick up the phone and give Governor Taft an earful.”   

Michael D. Kohn