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November|December 2002
The Strange Tale of Charlie Smoke By Michael Erard
Devine Intervention By Marci Alboher Nusbaum
Bear Market By Kim Todd
My Father's Lawyer By Joy Horowitz

Devine Intervention

Marci Alboher Nusbaum on the savior of whistleblowers.

By Marci Alboher Nusbaum

Tom Devine is a slight shaggy dog of a man with a goofy smile and a bouncy disposition. His rapid-fire speech is peppered with an odd mix of '70s-speak ("good vibes," "cool city") and perky expressions of disbelief. He answers his phone "howdy doody" and signs off "later, gator." He is perennially sunny.

It's an unusual temperament for his line of work. Devine is the legal director of the Government Accountability Project, a nonprofit organization based in Washington, D.C., that works to protect the rights of whistleblowers. GAP's clients—corporate and government employees who raise the alarm about waste, fraud, or abuse in their workplaces—are frequently branded as troublemakers and then fired or subjected to smear campaigns or other forms of harassment. They are often despondent by the time they find their way to Devine, but he draws his energy from them. "I get my inspiration from the individuals who make the tough choice to live their values, rather than continuing along in silence," he says.

A youthful 51, Devine has worked at GAP for 23 years, handling cases involving everything from food contamination to environmental hazards to breaches in national security. His work involves traditional, no-nonsense litigation, but he has distinguished himself as much for his warmth and kindness as for his advocacy skills and intellect. Though he is an uncompromising advocate for his cause, he handles his cases with the personal touch of a friend, not the pushy righteousness of a crusader. From the outset, he assures his clients that he won't blame them if they ultimately choose to back down. "He collects whistleblowers and takes them into his bosom like my wife takes in stray cats," says Rick Parks, an engineer and whistleblower whom Devine represented in a case involving the cleanup of the nuclear power plant at Three Mile Island in the 1980s. "He really takes the well-being of his client to heart. Their ability to survive mentally, physically, and monetarily becomes paramount to him. He's the ultimate big brother."

In addition to litigating, Devine spends much of his time lobbying on Capitol Hill. Over the past year, he and GAP have found themselves in the legislative spotlight. Riding the wave of interest in the corporate scandals—particularly the front-page attention to Enron whistleblower Sherron Watkins—GAP and other good-government groups lobbied successfully to include far-reaching protections for whistleblowers in the landmark Sarbanes-Oxley Act, which was enacted in July. Among other reforms, all publicly traded companies must now establish procedures for reporting complaints anonymously, and whistleblowing cases can now be heard in federal court. "Corporate workers have reached the promised land after wandering in a free-speech desert for 26 years," Devine says.

GAP's recent victory does not mark the end of the road for Devine, however. Unlike their corporate counterparts, government whistleblowers are, in his words, still "boiling in the sun." In fact, since September 11, GAP has experienced a surge in high-profile government cases relating to the terrorist attacks. Devine is representing clients such as Bogdan Dzakovic, a special agent who used to test airport security for the Federal Aviation Administration, and Robert J. Martin, the former national ombudsman at the Environmental Protection Agency, who alleges that the EPA downplayed concerns about air quality near the site of the World Trade Center disaster. "The challenge now," Devine explains, "is to take the corporate breakthrough and say, If it's good enough for the private sector, it's good enough for those trying to prevent the next 9/11."

Devine often meets with his clients at the GAP office after regular work hours, when they can talk freely about their cases. Founded in 1977 as a project of the Institute for Policy Studies, GAP's headquarters is in a charmless office heavily populated by law-student interns and volunteers. The budget is tight, even by nonprofit standards. The back wall of Devine's office is stacked floor-to-ceiling with cardboard boxes piled precariously in a crude filing system.

When Devine's client Bogdan Dzakovic arrived for a meeting on the day of my visit, the two men hugged like long-lost comrades. Devine set aside the lemon Coke he drinks from a Mason jar, removed his shoes, and curled up on one corner of his tattered couch, giving his guest the section where the springs are strongest. Dzakovic, the special agent for the FAA, laid down a backpack heavy with papers. (Devine requires his whistleblowers to do a lot of their own investigative work; it allows him to take on more cases and tends to weed out the crackpots.)

Dzakovic is a promising client. He claims that the FAA disregarded known security violations prior to September 11, and that, even after the attacks, the agency prevented him and other investigators from following up on airport checkpoints that had been identified as unsafe. Dzakovic suspects that FAA managers are so fearful of being blamed for failing to act on information they've acquired that they prefer to avoid acquiring it altogether. In February, his charges were reviewed by the Office of Special Counsel—the independent executive agency that investigates whistleblower cases within the federal government—which found it was likely that at least some of his allegations were correct. (The FAA and the OSC declined to comment on Dzakovic's allegations while the matter is under investigation.)

"Bogdan personifies why national security professionals proceed at their own risk when they warn the government that the public isn't being protected," Devine explained. "Since he filed his whistleblowing disclosure, Bogdan and the rest of the Red Team—the FAA's elite undercover unit that tested airport security through mock attacks—have been grounded, banned from doing any meaningful work to strengthen airports. He's now being paid to fill space, and that's typical."

Part of Devine's message to clients like Dzakovic is that they need not become martyrs when they become whistleblowers. He counsels cool, and urges would-be whistleblowers to think carefully about strategies that will allow them to remain employed while airing their concerns. Former clients testify to Devine's wisdom and foresight. "Tom told me my options and he told me exactly what would happen to me," Rick Parks remembers. "Either he was the most prescient person I'd ever met or he had a great crystal ball, because everything he told me would happen to me did."

The natural reaction of an accused employer, according to Devine, is to treat the whistleblower as if she were committing a crime. "If you go into your boss's office and say, ‘You're a crook and I've got the evidence and you're not going to get away with it,' it would be a miracle not to have a scorched-earth conflict," he explained. "We coach whistleblowers how to beat bureaucracies at their own games." One of Devine's strategies, for instance, is to take advantage of situations in which multiple offices within a governmental oversight agency are competitive with each other: "We try to expand the competition to see who can do a better job of earning credit for solving problems that the other one should have taken care of."

Before taking on a case, Devine makes sure his client understands that your life is rarely the same after blowing the whistle. He advises prospective clients to read his book, The Whistleblower's Survival Guide: Courage Without Martyrdom, a slightly promotional summary of many of the cases GAP has championed, which serves as a primer on the various laws that protect whistleblowers from retaliation and an overview of the different strategies whistleblowers can use. Most important, Devine encourages his clients to have heart-to-heart talks with family members so that everyone involved is prepared for what will follow. "People who go marching off heroically alone may be alone when the heroism is over," he likes to say.

When Dzakovic was preparing to leave, he pulled me aside. "Can I just tell you that I'd be lost if it weren't for this guy?"

Devine admits that his bond with his whistleblowing clients is fuzzier, and more complicated, than the usual lawyer-client relationship. "It's not just about writing a good brief or conducting an effective investigation and getting evidence," he explains. It's also about "helping them to keep up their strength when they are feeling alone and their hopes up when everything seems dark and unrealistic." He likens himself to a doctor: "If your patient is in pain, you don't say, ‘I'm busy now.' "

Devine's devotion to whistleblowers has come at a cost. Over the years his commitment has led to many late nights counseling clients whose isolation and anxiety has turned to depression. Out-of-towners often find their way to his living room couch and crash for extended periods. To make ends meet, Devine has moonlighted over the years, doing legal research or writing projects for law firms. A self-confessed workaholic, he routinely logged 80-hour workweeks in the early part of his career; his family rarely saw him. In 1991, after years of Devine's broken promises, his wife Catherine (Kit) Wood gave up on the marriage and decided to leave him.

That event was Devine's wake-up call. "Kit saved my life by leaving me," he admitted, "because I was in the process of working myself to death."

Devine was raised in a working-class family in Elmwood Park, Ill. His late father, an inspector for the telephone company, gave him his earliest insight into the lives of many of his future clients. "A plurality of my whistleblowers have been inspectors," Devine says, "challenging phony approvals of food as safe or nuclear safety systems as reliable." His father's job was to make sure phones were installed properly, and he didn't cut corners. "It would drive him crazy that other inspectors would approve telephones without looking at them," he remembers.

In high school, Devine immersed himself in debating, and then attended Georgetown University, whose debate team was one of the best in the country. Though most of the Georgetown debaters of his day had their sights set on Ivy League law schools, Devine was intrigued by what he had heard about Antioch Law School from a debating pal named Thad Guyer. Guyer told Devine about a "radical new law school" in Washington, D.C., that had abandoned traditional grading and whose curriculum was based almost entirely on clinical work. "What captured us about Antioch," recalls Guyer, a litigator who spends part of his time working for GAP's West Coast office, "is that we were coming out of a mind-set of the antiwar movement of the '60s and had developed a case for activism."

Devine was sold on Antioch when he learned about Kitty Tucker, an Antioch student who had devoted much of her law school career to the case stemming from the death of the nuclear plant worker and activist Karen Silkwood (whose story was the basis for the 1983 film Silkwood, starring Meryl Streep). In 1978, during his second year as a law student at Antioch, Devine developed an externship program at the newly formed GAP for law students interested in working on whistleblowing cases for credit. "He created the possibility of us having a full clinic of law students," said GAP's executive director, Louis Clark. Devine was one of the first students in the clinical program he set up. Just a year and a half later, after he graduated, he became GAP's legal director.

Throughout his career, Devine has specialized in cases involving the potential for apocalyptic disaster. One of his first victories was In the Matter of Cincinnati Gas & Electric Company, a 1984 case involving faulty construction at the William H. Zimmer nuclear power plant in Moscow, Ohio. Devine became interested in the Zimmer plant after he was contacted by Thomas Applegate, a private investigator hired by Cincinnati Gas to spy on workers allegedly cheating on their timecards. In the course of his sleuthing, Applegate learned that the workers were upset that Cincinnati Gas had falsified records concerning the safety of the Zimmer plant's reactor vessel. According to Devine, Applegate became convinced that he had been hired to find pretexts to fire the workers who might expose the cover-up.

When Devine got involved in the case, he did his own investigation to confirm Applegate's findings. Once he had done his homework, he employed a little-known provision of the Civil Service Reform Act that lets private citizens file a whistleblowing complaint with the U.S. Office of Special Counsel. The special counsel ordered the Nuclear Regulatory Commission to investigate, and the agency opened up two investigations—one in its internal affairs unit, the other in the Midwest regional enforcement office. The dual nature of the investigation turned out to be fortuitous. "We learned that the two offices were bitter rivals, with each asking us for all the best evidence," Devine recalled. "So we played on that dynamic and developed a healthy competition to see who would be more aggressive in terms of getting good-government credit for the report."

The NRC fined Cincinnati Gas & Electric $200,000 for its faulty quality assurance program, and later issued an order to halt work on the plant's hopelessly inadequate safety-related systems—effectively preventing the plant from being completed. Despite having invested $1.6 billion and completed 97 percent of the plant, the owners converted the facility into a coal-burning plant. The NRC order terminating Cincinnati Gas's license is one of the few adornments on Devine's office wall.

"It's 9 a.m., do you know where your expert is?" Devine asked on the morning of my visit, wondering why the talk-show host from a Denver radio call-in show he was booked on hadn't called. Devine likes talking to the media. He regularly publishes op-ed pieces and articles in academic journals, magazines, and newspapers.

Come lunchtime, he skipped the half-smoke that he usually buys from the Afghan vendor outside GAP's office and attended a meeting of civil rights groups celebrating the recent passage of the anti-discrimination law popularly known as the No Fear Bill. The law stipulates that settlements in discrimination cases involving the federal government are paid out of agencies' individual budgets, rather than out of a government-wide fund. This ensures that each agency is more directly responsible for discrimination within its ranks. GAP was one of the law's many supporters.

Devine left the meeting early to make his rounds on Capitol Hill, starting with a briefing of a Senator's senior counsel on proposed amendments to the 1912 Lloyd Lafollette Act, which protects civil service workers from dismissal except on grounds of inefficiency. He provided a breathless ten-minute discourse on the amendments, which would provide protection for whistleblowers who bring their find-ings to Congress and claim that they have been harassed as a result.

On the Hill, Devine has also been stumping for the Paul Revere Freedom to Warn Campaign, a lobbying effort to tighten the federal laws that protect government whistleblowers from retaliation. One of those laws is the Whistleblower Protection Act, a 1989 law (amended in 1994) that Devine calls "his baby" since he played a large role in getting it passed. Under the law, federal workers who feel they have been retaliated against can bring their cases to the Office of Special Counsel. The OSC can issue orders to restore a worker's job, reverse a suspension, impose discipline on a supervisor, and even cover attorney's fees, medical costs, or other damages. Among other things, the law provides for confidential treatment of a whistleblower's allegations and allows successful whistleblowers to petition for a job transfer so that they need not work under a potentially vengeful supervisor.

Despite its initial promise, Devine feels that the Whistleblower Protection Act is in need of rehabilitation. He complains that the law has been gutted by the Federal Circuit Court of Appeals, which has required plaintiffs to provide "irrefragable proof" (irrefutable evidence) of their allegations rather than mere grounds for "reasonable belief"—which, Devine explained, has been the standard since 1978. In addition, Devine complained, the court has ruled that the act covers only the first person to challenge a given instance of misconduct. "If you're not the Christopher Columbus of your own scandal," he said, "you proceed at your own risk."

Devine has led numerous campaigns to amend the Whistleblower Protection Act. "If we advised whistleblowers to rely on their rights under this, we'd be no better off than the Pied Piper," he says. "Almost any whistleblower that relies on these rights and fights to the bitter end will spend many years and dollars in attorney's fees and be virtually guaranteed to get a formal legal ruling that he or she deserved whatever retaliation was received."

In an age when people reinvent themselves in their professional lives, Devine is striking for his single-minded focus on the same issue, and for doing so within the confines of a shaky nonprofit. "In nonprofits," says Guyer, Devine's old classmate and fellow muckraker, "you go through some fairly cataclysmic development periods and eras and washouts of some number of people." But Devine, Guyer notes, simply ignores the distractions: "Regardless of whose vision is predominant, he will adopt a myopic focus just on the projects he's working on and the clients he serves. Tom's organizational politics are ‘leave me alone.' "

Devine confesses that he can imagine a time when the life of a single-minded activist will become tiring. "It's always been my plan after a few decades to develop a next chapter, sharing and teaching the lessons I've learned," he says. But that day still seems far off: "I haven't yet felt that I could walk away in good conscience."

Marci Alboher Nusbaum is a lawyer and writer in New York City. She has written for The New York Times, The National Law Journal, The New York Law Journal, and is the author of I Think I Need a Lawyer, Now What?!

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