Energy & Environment

Whistleblowers Anonymous

The tactics of a national group representing dissident environmental employees are alarming many pollution-control chiefs.
by | June 2000

Kevin Keenan's epiphany came on an October morning six years ago. At the time, he was Montana's chief water-quality regulator and had worked in the state's water-pollution program since earning his chemistry degree in 1972. He knew, going into a meeting with the Montana Environmental Quality Council, that state legislators and other members of the panel expected the rote testimony he'd delivered many times before. Instead, he says, "I decided while I was standing in front of them that I would tell them the truth about the corruption in the program I was administering."

He told the startled advisory council that although environmental statutes re-quired that penalties be calculated to fit the crime, his bosses preferred to give big polluters a slap on the hand. After corporate executives asked the governor's office to inquire about a case, Keenan's supervisors negotiated lenient settlements. When a Bozeman developer openly defied the state's subdivision regulations, two successive pollution-control directors misplaced the file after Keenan recommended prosecuting. As he recalls it now, he told the board that "the political people who control state environmental agencies think environmental law is something you wink and nod about."

Keenan then called his bosses to alert them to his revelations. That was the beginning of the end of his government career. During the next two years, he says, supervisors took away his staff, left him out of meetings and forbid him to meet with legislators. Finally, thoroughly frustrated, he decided to take early retirement at age 46. "They forced me out of something I'd wanted to do all my life," he says. "By the time I retired, I thought we would have cleaned up the entire country."

Despite all of his disappointments, Keenan remains as militant about Montana's environmental issues as he ever was. He stayed in Helena and set up the first state capital office for a feisty whistleblowers' organization called Public Employees for Environmental Responsibility. Keenan says he took the PEER job in 1996 "to give ethical employees still inside the agency a way to get information into public hands" without making the sacrifice that he himself endured when he could no longer hold his tongue.

The organization, which was founded a decade ago by a former U.S. Forest Service employee and is based in Washington, D.C., has opened chapters in Helena, Sacramento, Austin, Tallahassee and five other state capitals, as well as popped up in other states from time to time to work with dissident employees. PEER's stealthy brand of advocacy is increasingly alarming pollution-control commissioners around the country.

In the past few years, top-level administrators have concluded that governments need to do more to help businesses comply with emission standards, so they've shifted resources away from relying primarily on old-school, command-and-control-type enforcement. The way many of their lieutenants still look at the world, however, that's getting too close to the polluters they should be cracking down on. Every state agency has still got gung-ho regulators on its staff. Most are lawyers, engineers, biologists and other scientific specialists who came to work for pollution control agencies in the 1970s and '80s as governments geared up to enforce newly enacted environmental statutes. Some have risen to become bureau and division chiefs, and they share Keenan's deeply held conviction that tough by- the-book enforcement of pollution control laws is the only way to clean up the environment.

And that's whom Keenan and his PEER colleagues say they speak for. Its operatives usually oppose "customer friendly" regulation in apocalyptic good-versus-evil terms, contending that it stands with righteous public servants to combat sleazy political manipulators. In Rhode Island, Jan H. Reitsma, the state's Department of Environmental Management director, says, "people trying to make changes have been attacked in a very ferocious way" by PEER.

Although PEER doesn't compile membership lists, Jeff Ruch, the national executive director, says its supporters tend to be veteran employees "who have gone through a journey of disillusionment and are motivated by what's happening to their life's work." To enlist these regulators in the cause, PEER guarantees them confidentiality. It's just too easy, PEER's leaders explain, for agency managers to devastate a subordinate's career through transfers, formal rebukes and more subtle personnel decisions. "These people are scared to death," Ruch says. "What happened to Kevin Keenan is emblematic of the problem."

But the clandestine methods that PEER practices to provide allies with cover are irksome to their superiors. Sometimes PEER passes mid- level state regulators' complaints along to the U.S. Environmental Protection Agency in the hope that the feds will intervene. In other cases, state workers have turned internal agency documents over to PEER, which then gives them cover by filing federal Freedom of Information Act requests to obtain the same papers itself. PEER officials frequently pass damaging documents along to major newspapers in a state, helping reporters research investigative stories built around employee allegations. The organization also drums up controversy by publishing snappily titled "white papers," often authored anonymously by agency workers. PEER draws considerable public attention by distributing surveys that invite employees to vent dissatisfaction without giving out their names.

So far, however, PEER has generated far more public controversy than real change in environmental policy. "PEER hits the headlines, but they never follow up and pinpoint things that are illegal," says Mark Simonich, director of Montana's Department of Environmental Quality and Keenan's former boss. "The other thing they never do is bring forward proposed solutions."

In Connecticut, PEER conducted what turned out to be brief assaults on Governor John G. Rowland's environmental policies. Two years ago, with Rowland up for reelection, the group published an anonymous white paper, authored by Department of Environmental Protection employees and called "A Friend in High Places." It contended that the agency was going easy on big polluters who were important Rowland supporters. Among other charges, PEER alleged that the governor had assigned a former campaign fundraiser as the DEP commissioner's executive assistant to watch out for corporate interests. The group contended that agency directors refused to pass cases along for Connecticut's Democratic attorney general to prosecute.

A month after Rowland was reelected, a state General Assembly investigations committee released a report concluding that the DEP had been indifferent to "staff confusion and concerns." The report didn't confirm the most sensational charges, however, and PEER thereafter "departed the same way they arrived, in the dead of night," says Arthur Roque Jr., Rowland's environmental commissioner.

More recently, PEER has jumped into an ongoing fray in neighboring Rhode Island. PEER attorneys are now representing Beverly M. Migliore, the former chief scientist in the state's hazardous waste program, in an acrimonious legal case against the Department of Environmental Management, where she's worked for 13 years. After Migliore objected to a 1996 reorganization that split Rhode Island's enforcement and permitting operations, she contends that superiors excluded her from meetings, denied travel requests and threatened disciplinary action for disclosing agency data to PEER.

"I thought I was doing a good job, but all of a sudden everything I did was being second-guessed or just sitting on the shelf," Migliore says. Last summer, a U.S. Department of Labor administrative law judge awarded her $843,000 in damages for the harassment she alleges, although state officials have appealed the judgment. Meanwhile, Migliore is still working at the DEM, although the agency has rubbed some salt in the wounds by assigning her to a newly created compliance-assistance office. "I'm still here, but they won't let me do anything of substance," Migliore says. "This is not the career that I hoped for."

Reitsma, who took over Rhode Island's besieged agency last year, has tried to defuse controversies by appointing a department ombudsman to conduct independent, and in some cases confidential, fact-finding investigations when employees file complaints. Migliore says she came up with the ombudsman idea herself, but she doubts it will solve the problem. "If you're somebody like me," she adds, "there's nobody else to go to except PEER."

With the 2000 presidential campaign heating up, PEER, like other environmental groups, is taking aim at Republican Governor George W. Bush's record in Texas. In California, the Sacramento office is now preparing to challenge Democratic Governor Gray Davis for not following up on campaign promises to give environmental concerns high priority. To date, however, PEER has made its most substantive policy impact with the assaults it began four years ago on Florida's pollution agency.

PEER's initial target was Virginia Wetherell, Florida's Department of Environmental Protection secretary under the late Democratic Governor Lawton Chiles. Allegations revealed by PEER's employee surveys inspired a grand jury inquiry into DEP's Pensacola office operations and a state police investigation of pollution-enforcement efforts. No prosecutions resulted; but by the time Wetherell left her post, she'd grown so irritated that she withdrew permission for PEER to conduct lunchtime "brown-bag" discussions at agency offices.

On one issue, however, PEER's persistence in Florida paid off. In 1998, Steven A. Medina, a former Florida DEP attorney who now represents PEER's chapter in that state, petitioned Chiles' cabinet to tighten oversight on how the agency protects the state's submerged coastal and streambed lands against over-development. Internal department audits had suggested that the agency's district officials were approving damaging marina projects, but PEER contended that agency officials weren't alerting the governor to the problems.

When Republican Governor Jeb Bush took over last year, he named former Massachusetts environmental commissioner David Struhs to head Florida's agency. Struhs met with PEER leaders and quickly agreed to look into the submerged lands program. In addition, Struhs sent a memo to all DEP employees prohibiting managers throughout the agency from retaliating against staff members who question policy decisions. Although Medina says some mid-level Florida officials still try to intimidate dissidents, Struhs credits PEER for focusing attention on problems in the program.

There's nothing wrong with public employees belonging to advocacy groups, and some are long-standing members of industry-led trade associations. But state commissioners worry that PEER's abrasive style is damaging employee morale at a time when the agencies are struggling to transform their traditional culture and implement more cooperative regulatory approaches. "There's a need for whistleblowing here and there, but we better make sure it gets very carefully separated from dissatisfaction among people who have been in government a number of years and are not willing to go through changes," Rhode Island's Reitsma says. "When that distinction gets blurred, that means whistleblowing is stifling innovation."

Nonetheless, it's often difficult to walk that fine line. Keenan acknowledges that before leaving the DEQ in Montana, he allowed his concerns about policy to overlap with personal gripes about his bosses' conduct. "I had a million issues by the time I was done," he says, "but that only makes you look like you're crazy."

Simonich, who took over as DEQ director the year before Keenan made his exit, describes Keenan as "very much a true believer, but he's taken his personal beliefs to an extreme."

Helena's a small-town capital, and Keenan doesn't indulge in the holier-than-thou personal attacks that PEER has launched against other state administrators. Still, it rankles him that Simonich, a former timber-industry executive, has no formal education in the environmental field. Nor did Governor Marc Racicot's two previous DEQ directors come up through the ranks, and Keenan says they've all turned enforcement into a politically driven exercise "that disrupts the system that long-time employees are now attempting to defend." He is convinced that "the vast majority of classicially trained experts on the environment share PEER's belief" in traditional regulatory approaches.

In the eyes of Montana reporters and environmentalists, Keenan's exile makes him all the more credible when he contends that Montana's regulators have gotten too cozy with companies they should instead be punishing. That's because he knows the ins and outs of regulating water quality, and he's quick to pick up the rumblings when former colleagues aren't happy with agency decisions.

On average, Keenan gets a half-dozen or so calls a month from unhappy Montana employees. Before taking on somebody's cause, Keenan helps them weed out personality conflicts, then suggests ways to relay what he sees as legitimate concerns to the public. But Racicot administration officials say Keenan is too ready to assume the worst about the agency that once employed him.

For his part, the governor says, "Kevin and I have known each other a long time" and they've traded non-political elbows as opponents in Helena church-league basketball games. But Racicot defends the way Simonich has run DEQ and concludes that PEER hasn't proven the misdeeds that Keenan keeps alleging. Some disenchantment is inevitable in an agency that makes tough policy calls every day, the governor adds. "You could find the same thing within the environmental regulatory agency in any state. There are no easy decisions over there."

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