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State still fighting whistle-blower law
Monday, March 5, 2001
The Ohio Environmental Protection Agency wants to make sure no employee wins the same whistle-blower protections awarded an EPA investigator punished after he criticized a probe of leukemia cases among graduates of a Marion school.
Last month, EPA Director Christopher Jones settled a 3-year-old legal battle by reinstating Paul Jayko as coordinator of the investigation at River Valley schools. The school buildings are on the site of a former military depot where cancer-causing chemicals were dumped for decades.
"We're putting this behind us and moving forward,'' Jones said.
But the state will continue to argue in court that it is immune from federal lawsuits filed on behalf of state employees who think that they have been targeted for criticizing the actions of their supervisors.
Jones, a lawyer who worked for the Ohio attorney general's office before Gov. Bob Taft named him EPA director in 1999, argues that the Jayko case could encourage other state employees to sue any time they disagree with a supervisor's decision.
"That somehow becomes protected activity actionable under the whistle- blower statutes,'' he said. "That's a real problem for us.''
In a case pending before the 6th U.S. Circuit Court of Appeals, the state is arguing that it has "sovereign immunity'' from federal lawsuits under the U.S. Constitution.
Backers of whistle-blower laws fear that the outcome of the case, as well as similar cases pending in Florida and Rhode Island, could discourage state employees from raising concerns about investigations of public-health threats.
At least one case is expected to end up before the U.S. Supreme Court, where a 5-4 majority repeatedly has favored the rights of states. For instance, the high court recently ruled that state employees can't use a federal disability- rights law to sue for discrimination.
"These employees are being punished for doing their jobs,'' said Jeff Ruch, executive director of Public Employees for Environmental Responsibility, a national group that represents the Rhode Island whistle-blower. "Somebody needs to step in and make sure the laws are being enforced.''
Three legal decisions favored Jayko's status as a whistle-blower and ordered the state to return him to the River Valley probe.
Shortly after the EPA was notified in June 1997 of unusually high rates of leukemia in Marion, then- Gov. George V. Voinovich ordered the agency to "leave no stone unturned'' in its investigation.
Jayko testified that he tried to kick-start the process with a series of memos recommending several air, soil and water tests be conducted before students returned from summer break that year.
His superiors didn't sign off on Jayko's recommendations until shortly before school began. Tests later revealed contamination under playing fields that have since been closed off with a chain-link fence.
Although the EPA later followed many of Jayko's recommendations, the cancer cases haven't been linked to specific causes.
Jayko was moved to other jobs in the EPA's Bowling Green office and was suspended for 10 days in 1998 for drinking two beers before a public meeting.
Thomas F. Phalen, a federal administrative-law judge based in Cincinnati, ruled in October that the punishment was retaliation for Jayko's criticism of the EPA for focusing on immediate causes of leukemia instead of studying long- term sources of contamination.
"Mr. Jayko knew that this was both disingenuous and in opposition to what the public was being told about the investigation,'' Phalen wrote.
As part of the settlement, Jayko will get $80,000 in compensatory damages and lost wages and $20,000 for court costs. His two attorneys will receive $285,000 in legal fees.
Jones also sent an e-mail to all 1,300 EPA employees that said he would not have disciplined Jayko if he had been EPA director at the time.
Michael Kohn, general counsel for the National Whistleblower Center, scoffed at Jones' statement that Jayko's case could encourage any disgruntled state employee to claim whistle-blower protection.
"If somebody writes a memo about the shortage of paper clips at the office, they aren't going to be protected,'' said Kohn, one of Jayko's attorneys. "But if somebody writes a memo accusing his superiors of ignoring cancer cases at a school, they deserve some kind of protection.''
Students at River Valley high and middle schools are expected to be moved to new schools on another site by 2003.
The new schools are being built with money from the state and federal governments.
Mike Griffith, a member of a community advisory group that wants the children moved immediately, said the state should concentrate on its investigation instead of pursing more legal appeals.
"That concerns me greatly,'' said Griffith, who took his son out of River Valley two years ago. "If they just did their jobs and stopped worrying about their image, they might get to the bottom of what's going on out there.''
Copyright © 2001, The Columbus Dispatch