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WASHINGTON TODAY: Whistle-Blower’s Victory May Not Bode Well For Others

September 6, 1988

WASHINGTON (AP) _ A victory that could give $800,000 to a fired government whistle-blower sets precedents that he and his lawyers fear will make it riskier for other federal employees to expose waste and hazards.

Bertrand G. Berube, fired in 1983 after he accused the General Services Administration of becoming ″the nation’s slumlord,″ said he will take early retirement in a settlement with the agency. He had been GSA’s top regional director, overseeing all major government buildings in the Washington, D.C., area.

Despite the settlement ordered by the Merit Systems Protection Board, Berube said laws are needed to prevent the government from punishing other employees who disclose overspending and dangerous conditions and that the federal system to protect such whistle-blowers actually worked against him.

Berube, who says he is the highest ranking civil servant ever fired for whistle-blowing, said federal employees should not think they can duplicate what he did unless they have several hundred thousand dollars to spend on attorneys. He was defended by a public interest group that can afford to back only a fraction of those who go against government employers, he said.

″If a government employee has that kind of money, they’re usually not working for the government,″ said Berube. Those who think they can get help from the special government counsel set up to protect whistle-blowers may find ″they’re going to the executioner when they think they’re going to the doctor,″ he said.

The special counsel for the merit board refused to take his case and ended up testifying in Congress against him, saying there were other grounds for firing him besides his criticism of waste, fire danger and health hazards in federal buildings, Berube said.

The GSA had claimed that Berube, who earned $64,000 a year overseeing 7,000 employees, engaged in ″irresponsible sensationalism″ in describing GSA’s problems.

Herb Koster, a spokesman for Gerald Carmen, former GSA administrator who fired Berube, said Carmen would not comment on the settlement signed Aug. 18. Carmen now heads the Federal Asset Disposition Association.

GSA spokesman Paul Costello said GSA officials also had no comment on the agreement.

Thomas Devine, legal director for the Government Accountability Project which represents Berube and other government and private industry whistle- blowers, said rulings by the merit board during its consideration of Berube’s case further inhibit whistle-blowing.

″Under the Berube standards, agencies have everything to gain and nothing to lose by opening up a witch hunt on a whistle-blower,″ he said.

Devine said that under the precedent, government agencies are allowed to look after-the-fact for reasons to justify a dismissal.

The Berube settlement agreement with GSA precludes further appeal by either side and says the settlement does not assume any ″unlawful personnel practice, discrimination, reprisal or any other unlawful or illegal acts″ by the agency or its officials.

Devine said neither the merit board nor the courts have done anything to discourage government reprisals against whistle-blowing employees.

The merit board’s office of special counsel, which was set up to represent whistle-blowers, ″actually has been a Troan horse for civil servants who commit the truth,″ he said.

Berube said in a telephone interview over the weekend that problems with government buildings have gotten ″worse rather than better″ since he was fired, with many buildings in serious disrepair while money is wasted. In a May 1983 memo, he had said 25 percent of GSA buildings were unsafe and ″for all practical purposes, we’re becoming the nation’s slumlord.″

Berube said he agreed not to go back to the agency so he could continue his successful woodworking business in Washington and continue to fight for whistle-blower legislation.

GSA spokesman Costello said Friday that a check for $530,000 would shortly be made out to Berube and his lawyers.

Berube, 55, said that after legal fees he will get about $350,000, along with up to $430,000 in additional retirement pay based on his normal life expectancy. Lawyers said GSA also will have to pay $24,000 into Berube’s retirement account and reimburse the $6,000 paid him in unemployment compensation.

Berube said he would retire with a $32,500 annual pension, based on 26 years of government service, including the five years since he was fired. Berube said that without the settlement he would have received annual retirement pay of $18,000 when he turns 65.

A whistle-blower protection bill has passed the Senate. House leaders are discussing whether to consider similar legislation passed by a House committee or a Reagan administration bill opposed by whistle-blowers.

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