Judge Limits Protections Allowed to Federal Whistle-Blowers

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http://www.nytimes.com/2004/12/25/politics/25whistle.html?

ex=1105062465 & ei=1 & en=e766953faffba468

Judge Limits Protections Allowed to Federal Whistle-Blowers (AP)

WASHINGTON, Dec. 24 (AP) - Some federal doctors and medical

researchers do not enjoy the same protections to blow the whistle on

wrongdoing as other government employees, an administrative law

judge has ruled.

The Nov. 9 decision, by Judge Raphael Ben-Ami of the United States

Merit Systems Protection Board, held that Dr. Fishbein, a

specialist for the National Institutes of Health, could not invoke

the Whistleblower Protection Act to keep from being fired.

Dr. Fishbein was hired by the institutes in 2003 to help improve

AIDS research practices.

He told the protection board that he was being fired because he had

raised concerns about sloppy practices that might endanger patient

safety. The institutes said that he was being fired for poor

performance and that he had failed to complete his two-year

probationary period successfully.

The whistle-blower law was enacted more than a decade ago to

strengthen federal workers' protections when they make accusations

of government wrongdoing. It gives them outlets like the board to

seek legal protection.

But Judge Ben-Ami ruled that Dr. Fishbein was not covered by the

law, because he was a so-called Title 42 employee and therefore

enjoyed " no appeal rights " during his probationary period.

Dr. Fishbein was hired under Title 42 of the federal code, which

allows the government to pay research and medical experts as special

consultants, giving them salaries higher than the civil servant

maximums. The law is intended to help the government compete against

high-paying private industries. Dr. Fishbein was paid $178,000 a

year, slightly more than the $175,700 that members of President

Bush's cabinet receive.

Dr. Fishbein was among several employees of the national institutes

who had raised concerns about a study in Africa involving the AIDS

drug nevirapine.

Documents showed that the way the research was conducted violated

federal patient safety rules and suffered from record-keeping and

patient monitoring problems. But the study's general conclusion that

the drug could be used safely in single doses to protect babies from

H.I.V. was approved.

Dr. Fishbein's lawyers are now appealing Judge Ben-Ami's decision to

the full board.

One of them, Steve Kohn, said federal agencies like the national

institutes had markedly increased their recruitment and hiring of

employees under Title 42 in recent years, leaving an entire class of

federal workers without whistle-blower protections.

Kris Kolesnik, executive director of the National Whistleblower

Center, an advocacy group in Washington, said of the judge's

ruling: " This is a major setback for drug safety. Many of these

employees, such as Dr. Fishbein, hold sensitive health- and safety-

related positions. Without protections, these employees will not

blow the whistle. "

More than 3,900 Title 42 employees work for the national institutes,

according to the Department of Health and Human Services, the

agency's parent.

In February, a House subcommittee chairman, Representative C.

Greenwood of Pennsylvania, expressed concern that Title 42 was being

used inappropriately by the institutes to raise administrators'

salaries to as much as $225,000 a year.

The law should be reserved for " limited scientific hires, " Mr.

Greenwood said, " not an alternative compensation scheme that permits

high-level N.I.H. officials to continue exercising broad-based,

inherently governmental functions while being paid significantly

higher salaries than if they had remained in the federal Civil

Service system. "

http://www.nytimes.com/2004/12/25/politics/25whistle.html?

ex=1105062465 & ei=1 & en=e766953faffba468