Colorado man Joe Lobato was fired after posting a status update complaining about work. Joe told KUSA 9News that he was feeling severely sick on the job. Lobato said it was so bad that, “It felt like someone was kicking me in my stomach.” He went on to say that his supervisor’s response to his illness was less than sympathetic, reporting, “He told me I wasn’t allowed to leave my machinery again.” At his computer, Joe logged in to Facebook and vented, posting a 9-sentence status update that included the statement, “Guess they think a person is a machine and can’t get sick.” Joe’s co-worker/friend reported the post to their boss, which led to Lobato’s termination for “gross misconduct” and posting negative comments about the company on a public forum. The National Labor Relations Board says that while employees have the right to discuss work conditions on Facebook, employers can take action against worker rants online. Further, social media experts warn that nothing is fully private in the online space. Now Lobato knows this all too well and says the online rant was not worth it as he is about to lose his house. Joe would like to hire a lawyer to fight for his job back, but cannot afford one. At a recent hearing with his former employer, he was told that his firing was justified.

Last Friday, the U.S. Court of Appeals for the Federal Circuit effectively restored the cornerstone for enforcement of the Whistleblower Protection Act (WPA), the key whistleblower protection law for most federal employees. The Government Accountability Project (GAP) is hailing the decision as a major victory for federal whistleblowers, and an important judicial decision outlining that statutory free speech rights trump conflicting federal agency regulations.

The court overturned a U.S. Merit Systems Protection Board (MSPB) ruling that upheld the termination of Federal Air Marshal (FAM) and GAP client Robert MacLean. MacLean successfully warned the media, public and congressional officials of Transportation Security Administration (TSA) plans to cancel Marshal coverage during a 2003 al Qaeda terrorism plot – confirmed by intelligence agencies – that involved suicide airplane hijackings in what would have been a more ambitious effort than the tragic events of September 11, 2001.

Last Friday’s decision restores WPA rights for MacLean, as the court ruled that he did not cross the legal boundary that would negate his right to make public disclosures – specifically, there had been no specific congressional ban on MacLean’s disclosure, either directly or indirectly. The Federal Circuit sent the case back to the MSPB to decide whether MacLean reasonably believed his warning evidenced a substantial and specific threat to public health or safety. As MacLean’s whistleblowing sparked the correction of a conceded mistake that would have removed Marshals from airline flights vulnerable to hijackings, MacLean’s attorneys – GAP Legal Director Tom Devine and Lawrence Berger of the Federal Law Enforcement Officers Association (FLEOA) – are highly confident that the MSPB decision will be favorable.

Regarding the decision, MacLean commented:

This decision is a result of the colossal team-effort by the dedicated staffs of GAP, FLEOA, Project On Government Oversight, the Office of Special Counsel, and 17 Members of Congress. This decision is not only vindication for me, but also for my friends, my family, and the countless law enforcement officers who supported me since the beginning. With this decision and the new Whistleblower Protection Enhancement Act, federal workers should now have significantly more confidence to expose wrongdoing without the fear of being marginalized or suffering financial hardship. An honest employee with the fortitude to expose corruption should expect to make sacrifices, but no one should have to endure seven or more years of aggravation.

GAP’s Tom Devine also commented:

This victory restores access to justice for a modern, unsung hero whose rights have been out in the cold for seven years. Robert MacLean may well have prevented a more ambitious rerun attack of al Qaeda’s 9/11 attack, when the government was about to go AWOL. Legally, the Federal Circuit restored enforceability for the Whistleblower Protection Act’s public free speech rights. It ruled that only Congress has the authority to remove whistleblower rights. Agency-imposed restraints are not relevant for WPA rights. Even when delegating authority, Congress cannot give agencies discretion to weaken those rights without specific legislative instruction. Congress may not pass the buck with sweeping delegations that permit agency gag orders. The Act’s Achilles heel has healed.

MacLean’s Case – Background

In July 2003, U.S. and foreign intelligence and counterterrorism units confirmed imminent al Qaeda plans for an ambitious rerun of 9/11. Long-distance flights were to be hijacked for multiple targets, including cities in Europe and America’s West Coast. All FAMs were called in for emergency training, and told this would be their ultimate test. Inexplicably, two days after receiving training, all FAMs received a text message to cancel all long distance missions – the same flights targeted for hijacking. There was no explanation beyond making sure to cancel hotel reservations to avoid cancellation fees.

MacLean unsuccessfully sought an explanation from Federal Air Marshal Service management and the Department of Homeland Security (DHS) Office of Inspector General (OIG). He then anonymously disclosed the orders to MSNBC, which promised to alert Congress. After the release of the MSNBC story, President Bush could not explain the cancelation at a press conference, and there were numerous congressional expressions of outrage and threatened hearings. Within 24 hours, DHS said the orders were a mistake and restored coverage, preventing the hijacking.

Following a 2004 television interview that MacLean gave, the TSA learned that the anonymous source was MacLean. The agency retroactively marked the previously-unrestricted text message as non-public Sensitive Security Information (SSI) under agency regulations, and a year later, fired MacLean for threatening national security by publicly releasing it.

The Decision

Ultimately, a July 2011 MSPB decision framed the issues for last Friday’s ruling. Since passage of the Civil Service Reform Act of 1978 and in the WPA, whistleblowers have had the right under the free speech provision in both laws, 5 USC 2302(b)(8), to publicly disclose misconduct unless it is classified (not an issue here), or its release is “specifically prohibited by law.” In all legislative history, Congress made clear that by “law” it meant “statute,” and legally distinguished “law” from “rules and regulations.” The MSPB’s ruling, however, said that MacLean’s warning was barred by “law,” because in the Aviation Transportation Security Act (ATSA), Congress ordered DHS to issue SSI secrecy regulations “if the Secretary decides disclosing the information would … be detrimental to public safety.” In lay terms, the MSPB explained that by ordering the Secretary to issue regulations, Congress had delegated its authority. That would make the regulations equivalent to statutes passed by Congress. As a result, the MSPB concluded that MacLean’s public disclosure violated “law,” and he was not entitled to WPA rights. Were the decision to stand, the MSPB would have created an “agency veto” loophole whenever Congress orders agency regulations to control the release of information.

The Federal Circuit reversed the decision, because the loophole fails the WPA’s requirement for specificity. The ATSA instruction gives the Secretary a blank check to ban release of any information he subjectively believes could harm public safety. The court said under that circumstance, the public gag came from the Secretary’s SSI regulation, not a “law” passed by Congress.

The court did not rule out the possibility that employees can lose whistleblower rights when Congress orders agencies to issue secrecy rules. But it emphasized another core principle of the free speech provision: even statutory restraints must “specifically prohibit” public release. It traced the original 1978 legislative history to explain that Congress can delegate secrecy authority if it imposes specific criteria for exercising that discretion. The court pointed to the Trade Secrets Act and Internal Revenue Code as models where Congress established particular criteria for secrecy and privacy restraints on public disclosure, qualifying associated agency rules as “law” that restricts whistleblower rights.

The ruling was a relief for good government activists, because the MSPB decision had threatened enforcement of new WPEA reforms approved unanimously last year after a 13-year legislative campaign. The ruling also reinforces the WPEA’s “anti-gag” provisions, which directly establish the supremacy of whistleblower rights over agency gag orders. The MacLean loophole would have created a contradiction for its enforcement.

In the aftermath of the WPEA and the Federal Circuit ruling, Devine concluded, “Rights against bureaucratic gag orders have never been stronger. Agencies no longer can impose secrecy without specific authority from Congress.”

Credits

Support for MacLean’s legal struggle has not been limited to his counsel at GAP and FLEOA. Former representative Dennis Kucinich (D-Ohio), current Rep. Carolyn Maloney (D-NY), the Office of Special Counsel, and the Project On Government Oversight submitted amicus briefs to the MSPB supporting MacLean’s case. House Government Oversight and Reform Committee Ranking Member Elijah Cummings (D-MD) joined Representatives Kucinich and Maloney in submitting an amicus brief to the Federal Circuit. Former Representative Todd Platts’ (R-PA) WPEA floor statement on the relevant legal issues was featured prominently in judicial questioning at oral arguments for the appeal. MacLean has received non-legal and legal support from FLEOA, and from the whistleblower rights community.

GAP would also like to thank MacLean for his steadfast drive to protect whistleblowers. MacLean was an active, marathon advocate for passage of the WPEA, along with Marine Corps whistleblower Franz Gayl. MacLean also expresses appreciation to Members of Congress whose prompt response to his disclosure led to restoration of air marshal coverage during the threat. Their statements, made during that period, are linked here.

TRENTON – A spokesman says Gov. Chris Christie underwent gastric band surgery in February to try to lose weight.

The secret surgery was first reported by The New York Post. Christie told the newspaper he wanted to slim down for his wife and four children and was not motivated by thoughts of running for president.

The newspaper reports that the governor hired Dr. George Fielding, head of NYU Medical Center’s Weight Management Program, to perform the procedure.

Christie had the surgery on Feb. 16. A tube was placed around his stomach to restrict the amount of food he can eat. He said the operation lasted 40 minutes and he was home the same afternoon.

Christie has never disclosed his weight, but has acknowledged that he has struggled with it.

More than seven months after the attack Sept. 11, 2012, on the U.S. consulate in Benghazi, Libya, the Obama administration continues to defend itself against allegations from House Republicans that the administration has not fully cooperated with Congress on the investigation into the attack.

On Tuesday, both President Obama and Secretary of State John Kerry addressed claims being made by House Oversight and Foreign Affairs Committee leaders that the administration is impeding the Congressional testimony of State Department and CIA employees who survived the attack.

“I’m not familiar with this notion that anybody’s been blocked from testifying,” said the president. “What I’ve been very clear about from the start is that our job with respect to Benghazi has been to find out exactly what happened, to make sure that U.S. embassies, not just in the Middle East but around the world, are safe and secure and to bring those who carried it out to justice.”

Speaking to reporters following a meeting with the Spanish foreign minister  at the State Department on Tuesday, Kerry  said “there’s an enormous amount of misinformation out there” about Benghazi. He referenced his testimony before the House two weeks ago, when he  told members that the State Department would work closely with Congress to clear up any lingering questions about the attacks so that everyone could move on and begin focusing on other pressing global issues.

“I do not want to spend the next year coming up here talking about Benghazi,” Kerry said.

He also promised to assign someone from his staff specifically to work with Congress to answer all remaining questions.

On Tuesday, Kerry confirmed that he has tasked his chief of staff, David Wade, with working “openly and accountably” with House GOP members on Benghazi issues. But he also expressed some exasperation about the politics of the continued debate.

“We have to de-mythologize this issue and certainly depoliticize it,” said Kerry. “The American people deserve answers. I’m determined that this will be an accountable and open State Department, as it has been in the past. And we will continue to do that, and we will provide answers.”

At the State Department briefing on Tuesday, spokesman Patrick Ventrell went further, denying GOP House members’ allegations that the State Department is trying to stop whistleblowers in the department from talking.

“Let me be very clear: The State Department is deeply committed to meeting its obligation to protect employees, and the State Department would never tolerate or sanction retaliation against whistleblowers on any issue, including this one. That’s an obligation we take very seriously, full stop,” said Ventrell. “The department regularly sends notices, as we do to our entire staff, to employees advising of their right to federal whistleblower protections.”

Ventrell said the State Department sent a “routine” update just last week advising department staff of their whistleblower protections.

He also flatly denied the claims that State Department employees who were survivors of the attack have requested security clearance for private attorneys because the administration is trying to block them from talking to Congress or the public.

“We’re not aware of any employees who have requested … security clearances for private attorneys in connection with Benghazi,” said Ventrell. “In the event of such requests, the department has a security clearance process in place under which clearances can be provided to private attorneys who are representing individual employees of this building.”

But Victoria Toensing, a lawyer for one of the State Department employees who witnessed the attack and is seeking to share the story fully with Congressional investigators, says the department is not being entirely truthful. Toensing maintains that asking employees, who are acting as whistleblowers, to go come forward, identify themselves and then inform the State Department that they are seeking council before they have representation leaves them vulnerable to intimidation and retribution.

“These people want their own lawyers,” Toensing tells ABC News. “They shouldn’t have to go in to their employer  what I call ‘naked’, without an attorney.”

On April 16th, Rep. Darrell Issa, R-Calif., the chairman of the House Oversight Committee, sent a letter to State Department lawyers asking for guidance on the process to have private attorney’s cleared, but Toensing says he never received an answer.  As a result ten days later Issa sent another letter, this time to Secretary Kerry, detailing the various ways he said the State Department has “attempted to impede or otherwise delay the committee’s investigation”

Issa specifically highlighted restrictions the department put on members reviewing classified and unclassified documents, allowing them only to review them while being monitored in a room that houses classified documents, not allowing members to photocopy or examine documents in a lengthy fashion.

“Notwithstanding the fact that the committee has both the right and the capability to review and possess classified information, I note that approximately 80 percent of the documents in question are unclassified and marked identically to documents routinely sent to the committee without the same restrictions placed upon them,” Issa wrote in the letter.

The congressman also accused the State Department of purposefully restricting access to witnesses of the attack for the Congressional investigation.

Toensing, a former Chief Council for the Senate Intelligence Committee who also served in the Department of Justice under the Reagan administration, says  she is still waiting for the State Department to provide her with what she needs to do to be cleared to represent her client. She says that her client faced pressure and threats from the department during the initial Benghazi  Congressional hearings and subsequent investigation, which is why she and other lawyers  have taken the cases of both State and CIA employees who want to talk, pro-bono.

She says she and other lawyers  are not asking that their clients be free to divulge classified information to the general public or media, but to speak fully with Congressional investigators. Toensing says being blocked from doing so is tantamount to obstructing justice.

“By not clearing lawyers they have made it so that clients cannot give lawyers the full story,” she says.

Toensing, who represented New York Times reporter Judith Miller and Time’s Matt Cooper in the Valerie Plame case, says she’s “a lawyer before… a Republican”  and that her involvement in the on-going controversy over the Benghazi attack is not driven by partisanship, but on what she thinks is right.

“Why can the Boston bomber get a team of defenders right away, and I agree with him getting that, he should, that’s our system; but a career public servant, who’s wants to represent government employees can’t be cleared three weeks later ?,” she says. ” I just want to be able to represent my client fully”

By Rob Spahr / NJ.com
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Students at six Monmouth County high schools may soon have to submit to random drug searches.

The Asbury Park Press reports that officials from the Freehold Regional High School District – which includes Colts Neck, Freehold, Freehold Township, Howell, Manalapan, Marlboro high schools – are reviewing district policy to see if random searches should be authorized.

The potential policy change follows the arrest of Tinton Falls resident Shawn Hannon, an assistant baseball coach and paraprofessional at Manalapan High School, as part of a drug sweep that netted more than two dozen arrests earlier this month.

Hannon was charged with multiple drug-related offenses, including possession of a controlled dangerous substance with the intent to distribute, for the marijuana and 30 Oxycodone pills police said he had in his possession.

Authorities confirmed for the Asbury Park Press on Tuesday that the investigation does not center upon Manalapan High School or any other district employees.

But Nicole Hazel, the district’s chief academic officer, told the newspaper that the district is still working with an addiction specialist to examine policies and procedures, and that a substance abuse counselor is already in place in each of the district’s six high schools.

“All of us, our heads are not in the sand on this issue,” Hazel said. “As a whole, we are addressing the matter.”

The school district’s existing policy provides for locker searches under specific conditions and only after the building principal has determined “reasonable grounds” exist, while staff and district equipment are permitted to be searched without a warrant.

The purpose of the ongoing policy review is “to see if our district is going to take next steps,” Hazel said.

MSNBC: For Whistleblowers, Fraying Protection
James Hansen, 2013 Ridenhour Prize Winner
This opinion piece by George W. Bush administration whistleblower Joseph Wilson and POGO Executive Director Danielle Brian discusses the current state of whistleblower protections in the context of yesterday’s 10th annual Ridenhour Prizes held in Washington DC. If you missed the event, video of it is available here.

Additionally, this Current piece by notable climate blogger Joe Romm provides his introduction yesterday to noted climatologist and former GAP client James Hansen, who won the 2013 Ridenhour Courage prize.

Mother Jones: Obama Poised to Deliver Another Blow to Whistleblower Protections

Ongoing coverage of the problematic court ruling that strips many Department of Defense workers, and potentially other federal employees, of an ability to respond to employer retaliation or job dismissal. The danger arises from the lack of ability for the Office of Special Counsel (OSC) and other outside agencies to investigate retaliation claims surrounding any position deemed ‘national security sensitive’ – a status that could be assigned to nearly anyone at the DoD and other government agencies. GAP was harshly critical of the ruling at the time, and the OSC has since filed an amicus brief challenging the decision.

Key Quote: Tom Devine, legal director at the Government Accountability Project, says that under the ruling, these employees won’t even be able to hire a private attorney and file a civil suit, because “as a rule, they can’t go to court except to appeal Board rulings.”…

“With this case, all ‘sensitive’ employees will virtually lose the right to defend themselves against charges of misconduct,” Devine notes.

The New York Times: U.S. Accused Novartis of Providing Kickbacks

On Tuesday, federal prosecutions unsealed a False Claims lawsuit brought by a whistleblower against drug maker Novartis, alleging that the company used “kickbacks disguised as rebates” to bribe influential pharmacies to recommend Novartis’ product instead of competitors’ or generics. The drug in question, Myfortic, is an immune suppressant used to help prevent rejection of transplanted kidneys. The unsealing of the lawsuit comes as the Department of Justice is joining the case against the company.

Related Article: Reuters

WZTV: Agriculture Whistleblower Bill in National Spotlight

Tennessee’s anti-whistleblower ‘Ag Gag’ bill has gained national attention after celebrities Carrie Underwood and Ellen DeGeneres have come out against the legislation. People have flooded Governor Bill Haslam’s office with emails and phone calls urging him to veto the bill.

Meanwhile, citizens in Pennsylvania are petitioning the sponsor of the state’s Ag Gag bill to kill the legislation, stating it would “silence whistleblowers who expose animal cruelty and wrongdoing on factory farms.”

Mother Jones: USDA Ruffles Feathers with New Poultry Inspection Policy

More coverage of the USDA’s controversial poultry inspection plan, with the Obama administration’s recent budget proposal indicating the agency plans to implement the new rules by September 2014. The article outlines various problems with the plan, including the USDA’s “shaky claims around food safety.”

ESPN: Lance Armstrong ‘Unjustly Enriched’

In news from perhaps the most known ongoing federal whistleblower suit, on Tuesday the Department of Justice outlined its case against Lance Armstrong that claims he committed massive fraud against USPS by instituting a scheme for riders to use performance-enhancing drugs.

Dylan Blaylock is Communications Director for the Government Accountability Project, the nation’s leading whistleblower protection and advocacy organization.

New Jersey Governor Chris Christie has vetoed legislation that would have expanded the definition of projects requiring greater use of Project Labor Agreements (PLAs) for New Jersey’s public works. Governor Christie cited the detrimental effect the bill (S2425) could have on the continued Hurricane Sandy repair efforts in issuing his absolute veto.

In New Jersey, PLAs are pre-hire collective bargaining agreements applying to specific public works projects that force non-union companies to become signatories. PLAs are used on a wide range of construction, reconstruction, demolition, and renovation projects. The bill would have broadened the definition of “public works projects” from just buildings to include highways, bridges, pumping stations, and water and sewage treatment plants. These types of structures suffered damage in 2012 from Hurricane Sandy and the bill would have provided for the use of PLAs in their repair and rebuilding projects.

The bill’s chief sponsor, Senate President Stephen Sweeney, had said using PLAs would create more jobs for New Jersey residents. However, in vetoing the bill, Governor Christie stated that the bill “would significantly alter public contracting in this State at a time when the swift reconstruction, rebuilding, and redevelopment of public infrastructure is a priority.”

S2425 passed New Jersey’s Senate in January 2013 and the General Assembly the following month. Sweeney has not indicated whether he plans to reintroduce the bill in an altered form.

Once heralded as tidy way to clean up spreading slicks, the chemical agent has proven toxic for sea life—and humans.

Every three to four weeks, a cycle of horror repeats itself across Steve Kolian’s face. First it becomes itchy. Then the bumps appear. Then a raw, irritating redness sets in before the skin peels away in patches. Finally, it all disappears for a while.

Other parts of his body, however, seem to be in perpetual disrepair. Dizziness, nausea, diarrhea, bloody stools and cognitive issues surface intermittently, painful reminders of the toxic assault he and untold others endured following the April 2010 explosion on the BP Deepwater Horizon oil rig.

It reminded me of Dante’s Inferno. The fumes were choking folks along the coast. Then you add the Corexit, and communities felt their lives became a laboratory, only they were the living experiment.

Kolian, 51, is convinced that his illnesses were triggered by a chemical product designed to disperse petroleum in water, a substance euphemistically marketed as “Corexit.” Now, three years after the disaster that left some 210 million gallons of Louisiana Crude and 1.8 million gallons of dispersant in the Gulf of Mexico, a growing body of evidence supports his contentions.

Kolian is founder of the nonprofit group EcoRigs, whose volunteer scientists and divers seek to preserve offshore oil and gas platforms after production stops. The superstructures can be maintained not only as artificial reefs, but also producers of solar, wind, wave and tidal energy.

After the Deepwater Horizon blowout, EcoRigs divers were asked by the National Oceanic and Atmospheric Administration (NOAA) to gather water samples from the Gulf, “in exchange for test results and presumable compensation,” Kolian told TakePart in an exclusive interview.

The group’s first dive was on May 7, 2010, when they took samples at the surface and subsurface, and collected marine life, including corals, sponges, and sea squirts, growing on platforms. “NOAA assured us it was perfectly safe” to dive where crude oil had been treated with dispersants, Kolian said. “But we quickly learned that was false.”

His harrowing story, and those of many others, has been compiled into a raft of damning affidavits and interview collected by the whistleblower group Government Accountability Project (GAP) and the Louisiana Environmental Action Network (LEAN).

Taken together, the statements paint a grim picture of corporate deceit and governmental acquiescence, which could foretell a legacy of chronic illness and premature death among those exposed to the blood-cell rupturing properties of Corexit. Meanwhile, the impact of the dispersant on the Gulf’s environment and marine life is gradually coming to light, as toxins in the product, and the oil it emulsified, make their way up the food chain.

They say that the cover-up is often worse than the crime; but in this case, the solution may be worse than the problem.

Corexit is a product line of dispersants that emulsify crude oil into miniscule droplets that are heavier than water and tend to sink into the ocean. The idea is to prevent oil slicks from reaching shorelines, estuaries, and other coastal waterways, with their fragile and sometimes threatened ecosystems.

Once oil is treated, typically by aerial spraying, the slick breaks down and quickly spreads across the surface and down the water column, as tiny beads of goo begin to sink. Wave action and wind turbulence degrade the oil further, though evaporation concentrates the toxins left behind, especially dangerous compounds called polycyclic aromatic hydrocarbons, or PAHs.

Soon after the Deepwater blowout, BP snatched up one-third of the world supply of dispersants, namely Corexit EC9500 and Corexit EC9527, according to The New York Times. Of the two, Corexit EC9527 is more toxic. Its main component, 2-butoxyethanol, has been identified as one of the agents that caused liver, kidney, lung, nervous system, and blood disorders among cleanup crews in Alaska following the 1989 Exxon Valdez spill. According to media reports, nearly all of the individuals in those crews have died, with the average age of death around 50. Herring fisheries in the area were decimated, and other marine species are still in stages of recovery.

Corexit 9527 is toxic to blood and organs. “WARNING: Eye and skin irritant,” reads a safety data sheet on the Nalco website. “Repeated or excessive exposure to butoxyethanol may cause injury to red blood cells (hemolysis), kidney or the liver. Harmful by inhalation, in contact with skin, and if swallowed. Do not get in eyes, on skin, on clothing. Do not take internally. Use with adequate ventilation. Wear suitable protective clothing.” In case of accidental release, handlers should “restrict access to area as appropriate until clean-up operations are complete.”

Human health hazards are “acute,” according to the safety data sheet, and potential toxicological impact is “high.” But that is only for people who come into unprotected contact with it. That’s why Nalco claims that, “based on our recommended product application and personal protective equipment, the potential human exposure is: Low.”

Cleanup crews not only lacked “personal protective equipment” to guard against Corexit, but when they asked for respirators, BP officials threatened termination and told them it would be bad publicity to suggest the spill was toxic, news reports said.

As for potential environmental hazards, the risk is “moderate,” Nalco says in its data sheet, then adds: “Based on our recommended product application and the product’s characteristics, the potential environmental exposure is: Low.” As such, Corexit is classified as “non-hazardous waste” by the federal government and not subject to federal regulations.

There are fewer warnings for Corexit EC9500, though no official toxicity studies have been done. “Based on our hazard characterization, the potential human hazard is: Moderate,” according to Nalco’s safety sheet. Again the risks are downplayed—if the product is used properly. “The human risk is: Low. The environmental risk is: Low. Any use inconsistent with our recommendations may affect the risk characterization.”

Nalco itself has a storied history. Once partly owned by the Blackstone Group, current owner of SeaWorld, the company was recently sold to EcoLab, which works on hygiene, clean water, food, and energy services.

“Every day, we make the world cleaner, safer and healthier—protecting people and vital resources,” trumpets Ecolab’s website. Equally ironic is that the company’s largest shareholder is also dedicated to health and hygiene: Bill Gates, whose Cascade Investment LLC owned more than 22 million shares in 2011, while the Bill and Melinda Gates Foundation Trust held another 4.4 million. A spokesman for the Gates Foundation said it had nothing to do with the Trust, even though it invests money to create funding for Foundation grants.

To many environmentalists, it is mystifying why the U.S. Environmental Protection Agency ever approved Corexit for the Gulf in the first place. EPA data shows that Corexit is far more toxic, and far less effective at dispersing Louisiana crude, than many other products: 9527 and 9500 are only 56 and 63 percent effective, respectively, and some alternatives are 10 to 20 times less toxic. The EPA’s head at the time, Lisa Jackson, said approving Corexit use was “the hardest decision I ever made.”

BP has consistently defended the decision. One company spokesman told The New York Times it was “pretty effective,” and “rigorously tested.” Nalco’s chief technology officer, Mani Ramesh, told Reuters that the product is harmless to the environment because its active ingredient is “an emulsifier also found in ice cream.” BP did not return emails seeking comment.

In May 2010, the EPA told BP to identify less toxic alternatives from a list of government-approved dispersants. If BP could not identify an alternative, it had to offer concrete reasons why not. The company replied that less-toxic dispersants were not available in the quantities needed. BP continued spraying Corexit on the Gulf, at an average ratio of one gallon per 91 gallons of oil, into the summer of 2010.

¨¨¨

Steve Kolian and the other Gulf divers had been assured by NOAA that it was safe to enter Corexit-treated waters. But they soon learned otherwise, and they learned the hard way.

“During those dives, we wore standard equipment: air tanks, fins, snorkel, gloves, a 2mm wetsuit and a hood,” he stated in his sworn affidavit for GAP. But wetsuits provided little protection from the contaminated water, and the skin on Kolian’s now-peeling face was completely exposed.

Kolian said he was contacted by a NOAA contractor, who asked divers “to collect samples and submit a research proposal” for studying water quality, and another proposal for evaluating marine life on offshore platforms.

After his first two dives, “I asked (NOAA) staff specifically if the Corexit was toxic, and they said ‘Corexit only has a 90-minute half-life,’ ” Kolian said in the affidavit. “This was reassuring to hear,” he said. “As long as we were not seeing any planes flying around we thought we would be ok.”

Government officials “endorsed a policy to deny the toxicity of Corexit,” he continued, and they “purposely misled people: NOAA, EPA and FDA knew that Corexit and oil was a very toxic combination.”

The EcoRigs team made 36 dives for NOAA. “We were seeing things that other people were not documenting,” Kolian told TakePart. They collected samples from mid-July to mid-September 2010, but could not obtain lab results from NOAA. Eventually, the divers began withholding samples. Kolian sent repeated requests for the data, but only received a verbal response that some samples were positive for oil, though not from BP’s MC 252 well, he said.

“We started to figure that (NOAA) was going to screw us in some way,” Kolian said in his affidavit. EcoRigs managed to have some of their samples independently tested, and found PAH concentrations that were up to 1,000 times higher than EPA safety standards. The samples’ fingerprints correlated with MC 252 oil.

Over the summer of 2010, NOAA cut off communication with the divers, and the agency “has not paid us to this day,” Kolian continued. “Our invoice is for $113,000. That includes hazard pay, such as diving in the oil.”

A NOAA spokesman told TakePart he could not comment on the allegations because the spill is under litigation, as the government takes on BP for compensation.

One of the first divers to show health problems was Kolian’s friend and colleague Scott Porter, who developed symptoms in July 2010. Kolian’s own symptoms began in September. No one realized they were being caused by Corexit and oil, he said, but the collective symptoms were undeniable: nausea, headaches, fatigue, memory loss, and blood in the eyes, nose, and stool. By October, Kolian began to connect the dots.

That fall, he started documenting the health problems and submitted his findings to the LEAN website. “When Corexit comes in direct contact with a human body, it breaks down the protective lipid layer under the skin, which then allows toxins direct access into the bloodstream,” he wrote. The article was read by Shanna Devine, investigator at GAP, which is now working with LEAN to secure medical care costs for those affected, many of whom lack insurance. The agencies also want a promise from BP not to use Corexit again.

LEAN bankrolled blood testing for oil and dispersant compounds. Kolian’s levels were extremely high: The chemicals were absorbed by the skin and “got into our liver, kidneys and fat cells,” he said in the affidavit. “I just found my liver is partially damaged.” A detox regime in 2011 helped clear up many of the worst symptoms, though Kolian now worries about long-term effects, including cancer.

¨¨¨

Corexit and crude oil combined “can be more toxic than either alone,” according to Susan D. Shaw of the Marine Environmental Research Institute. “The properties that facilitate the movement of dispersants through oil also make it easier for them to move through cell walls, skin barriers, and membranes that protect vital organs, underlying layers of skin,” and other surfaces, she said, in a statement.

One recent study of microscopic marine life found that oil mixed with Correxit was 52 times more toxic than oil alone.

Nalco insists the potential for human exposure to Corexit  is “low,” but try telling that to Marylee Orr, LEAN’s executive director. LEAN helped prepare a survey of the health impacts on people living along the coastline and found devastating results—not just among divers and cleanup crews, but ordinary residents as well.

“I began getting calls right after the spill,” Orr said. “When the wind blew off the slick and when they were burning oil, folks called about the nightmare. It reminded me of Dante’s Inferno. The fumes were choking folks along the coast. Then you add the Corexit, and communities felt their lives became a laboratory, only they were the living experiment.”

Orr spoke with people who had bled from their nose, ears, breasts, even anally. “One patient had a toilet filled with blood,” she said. Others complained of cognitive damage, including what one man called getting “stuck stupid,” when he temporarily cannot move or speak, but can still hear.

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The most common ailments were headaches (87 percent of respondents), dizziness and cough (72 percent), fatigue and eye-nose-and-throat irritation (63 percent), followed by nausea, diarrhea, confusion and depression.

Environmental health consultant Wilma Subra, who evaluated the survey data, said oil and dispersant had aerosolized and travelled up to 100 miles inland, potentially exposing tens of thousands of people to the hairspray-like mist. “Now we are seeing the reproductive effects,” Subra said, including high rates of miscarriages, preemies, infant respiratory problems, and neurodevelopmental disorders like autism.

“The workers that BP hired should have been trained and protected adequately,” Subra said. “It was inappropriate to expose them to toxic chemicals as they did their job.” She told federal officials the workers needed respirators, but was rebuffed. “They said I would be killing the workers because of the heat,” she said. “There are suits with piped-in cooling. Cleanups happen all the time in hot weather.”

As for aquatic life, “If we are getting sick, then you know the marine life out in the Gulf is too,” Kolian said. Dispersed oil collects on the seabed, where it feeds microscopic organisms at the bottom of the food chain and works its way up to shellfish and eventually fin fish and marine mammals.

A 2005 National Academy of Sciences report found that oil and dispersants can kill fish eggs, while another recent study showed that “Exposure to medium and high concentrations of (oil and Corexit) significantly decreased settlement and survival of larvae” in two coral species. Meanwhile, larger predator fish are turning up with Corexit components in their flesh. Last spring, seafood catches in the Gulf were off by nearly 25 percent of the norm, according to Louisiana Wildlife and Fisheries.

¨¨¨

So what now? Most people are waiting for compensation for their medical bills through BP’s settlement program. But many do not expect much.

“We’re represented by lawyers making medical claims in the BP program,” Kolian said. So far he is not filing suit against the government, even though GAP discovered, through the FOIA process, that EPA and NOAA knew it was dangerous to dive in Corexit-laced water, but said nothing, Kolian asserted.

“People are sick: They’re in the midst of an economic crisis and a health crisis and BP has not addressed these problems as they should,” said LEAN’s Orr. “Our Vietnamese fishermen, Native American, Cajun and African-American fishermen and women rushed to save our beloved Gulf. Some now feel the price they’ll pay is the loss of their communities and their health. Life as they knew it no longer exists.”

Kolian, with a mixture of sadness and fury, agreed.

“I’m resigned to the fact the government tried to make things look better than they are. But what really makes me mad is I continued working because nobody will document or even admit what is going on,” he told TakePart. “I had to spend my own money and time and risk my future to do this.”

For now, the diver worries about his long-term prospects. “I exercise and stay healthy as possible,” he said. “I know I’m going to lose years off my life. Right now, I just want to get my papers published, and fulfill what I’m supposed to do.”

Related Stories on TakePart:

- It’s Been Global Warming, Stupid

- Exxon Hates Satire Even More Than It ‘Hates Your Children’ (VIDEO)

- Busted Pipeline Sends Crude Oil Gushing Into Suburbia (VIDEO)

David Kirby, a regular contributor to the Huffington Post has been a professional journalist for 25 years and was a contracted writer for The New York Times, where he covered health and science, among other topics. He has written for national magazines and was a correspondent in Mexico and Central America from 1986-1990. His third book, “Death at SeaWorld,” was published by St. Martin’s Press. He is also an experienced writing coach and media trainer: For more info visit www.davidkirbycoaches.com

By Jason Grant/The Star-Ledger

NEWARK — In July 2005, authorities say, just as Par Pharmaceutical won FDA approval to use a prescription drug it had developed for AIDS-related weight loss, treatment options for AIDS got to the point that significant weight loss — or wasting — didn’t occur nearly as often.

Worried that the drug wouldn’t reach the lucrative sales figures once anticipated, the Woodcliff Lake-based company “plowed ahead” anyway with a different plan, authorities say — one never sanctioned by the Food and Drug Administration: It began to market the drug to geriatric patients, many living at nursing homes in New Jersey and New York, who were suffering from weight loss or “wasting.”

By making an “end run” around FDA orders, said U.S. Attorney Paul Fishman, Par Pharmaceutical Companies eventually hauled in $11 million. But today, after years of fighting both criminal and civil actions against it, the company laid down its sword: It pleaded guilty in federal court in Newark to a “misbranding” criminal misdemeanor and agreed to pay $45 million to resolve the panoply of legal cases it faced.

The drugmaker, which in July was acquired for $1.9 billion by an affiliate of the private investment firm TPG, also signed on to a five-year integrity agreement with the Department of Health and Human Services that brings to bear extensive oversight of the company — with teeth. For example, officials said, executives may have to forfeit annual bonuses if they or subordinates commit significant misconduct. And sales representatives may not be paid incentive compensation for the drug involved in the case — Megace ES — or any successor branded versions of that drug.

Flanked by several other officials at a noon news conference in Newark, Fishman explained there was no allegation of geriatric patients suffering harm after using Megace ES. In the next breath, he also said, “But that’s not a risk that we should have to run.”

He also noted that three civil lawsuits — filed by company whistleblowers on behalf of the United States under the False Claims Act — pointed up millions of dollars in false claims that were submitted to Medicare, Medicaid and other programs as Par persuaded geriatric patients to ingest Megace ES.

Half of the $45 million the company is paying out comes from settling those civil lawsuits. In the criminal action Fishman pursued against Par — but not its executives — a federal magistrate judge today levied an $18 million fine against the company while also imposing a $4.5 million forfeiture. Chief Executive Paul Campanelli made the plea on his company’s behalf, in a brief hearing in Newark. Afterward, he declined to answer reporters’ questions as he walked down the marbled hallways, then quickly left the building.

The civil lawsuits, the first of which was lodged in 2008 by two longtime sales representatives for Par, helped spearhead the government’s investigation, said Timothy McInnis, the lawyer for the former salespeople, Michael McKeen and Courtney Combs. His two clients will split the majority of $4.4 million that will go to whistleblowers in the cases, he said. In a news release today, McInnis also laced into Par for the egregious conduct that officials say unfolded from 2005 to 2009.

Par “risked the lives of senior citizens across the U.S., by illegally off-label marketing to the elderly Megace ES,” a prescription that helped increase their appetite, McInnis wrote.

What Constitute a “Hostile Work Environment”

or “Hostile Workplace?”

Aaron Morris, Esq.

I get more and more calls every week from employees wanting to sue for being exposed to a “hostile work environment.”  As I discuss the matter with them, it becomes clear that they have heard the buzz words “hostile work environment” or “hostile workplace” but have no understanding of the legal basis.  They believe that hostility in the workplace has somehow become illegal and actionable.  I even receive calls from employees who want to sue because they are being asked to work harder, and they feel that is hostile.

A hostile environment at work generally does not create a legal action unless it is a form of discrimination.  The concept of a “hostile work environment” first came from cases involving gender discrimination.  The classic example is that of a fire station which previously was devoid of women firefighters.  A woman finally breaks the gender barrier, but when she reports for work at the station she is greeted by nude centerfolds on the lockers and in the lunch room.  Pictures of nude women are not inherently discriminatory against women employees, but it is not hard to imagine that the woman firefighter might feel uncomfortable being surrounded by this objectification of women.  The courts struggled with this situation for some time, because the facts did not involve the classic form of discrimination, where the woman suffers some form of adverse job action or failure to promote.  The courts then came up with the reasonable idea that even in the absence of any objective discrimination, the very atmosphere of a workplace could be hostile to women and therefore discriminatory.  Thus, an older employee who never suffers adverse job action can still claim discrimination if the company permits constant jokes about age, or a minority can sue for discrimination if racist cartoons are posted.

A “hostile work environment” might also be actionable as a contract breach if it violates company policy or goes so far that it amounts to an unsafe working condition.  But absent some other basis, generally you cannot sue your boss or company for being hostile toward you because you are a member of a protected class.

When a wrongful termination case goes to trial, the jury is instructed on the law so that the jurors can decide the matter properly.  The following is the actual jury instruction, which is modified by the lawyers to fit the specific facts of the case.  Note that two of the elements require the insertion of the protected class, i.e., identifying whether the plaintiff is a woman, a minority, a foreign national, someone over 40, etc.  In other words, you cannot prevail on a claim for hostile work environment by going to court and proving you were subjected to hostility in the workplace that caused you emotional distress, UNLESS you can also show that hostility was caused by your membership in or association with a protected class.

Jury Instruction for Hostile Work Environment (CACI 2521A):

[Name of plaintiff] claims that [he/she] was subjected to harassment based on [his/her] [describe protected status, e.g, race, gender, or age] at [name of defendant], causing a hostile or abusive work environment. To establish this claim, [name of plaintiff] must prove all of the following:

1. That [name of plaintiff] was [an employee of/ a person providing services under a contract with] [name of defendant];

2. That [name of plaintiff] was subjected to unwanted harassing conduct because [he/she][was/was believed to be/was associated with a person who was/was associated with a person who was believed to be] [protected status];

3. That the harassing conduct was severe or pervasive;

4. That a reasonable [describe member of protected group, e.g., woman] in plaintiff’s circumstances would have considered the work environment to be hostile or abusive;

5. That [name of plaintiff] considered the work environment to be hostile or abusive;

6. [Select applicable basis of defendant's liability:]

[That a supervisor engaged in the conduct;]

[That [name of defendant] [or [his/her/its] supervisors or agents] knew or should have known of the conduct and failed to take immediate and appropriate corrective action;]

7. That [name of plaintiff] was harmed; and

8. That the conduct was a substantial factor in causing plaintiff’s harm.

______________________________________________________________________________

Aaron Morris is a Partner with the law firm of Morris & Stone, LLP, located in Santa Ana, Orange County, California.  He can be reached at (714) 954-0700, or by email.  The practice areas of Morris & Stone include employment law (wrongful termination, sexual harassment, wage/overtime claims), business litigation (breach of contract, trade secret, partnership dissolution, unfair business practices, etc.), real estate and construction disputes, first amendment law, Internet law, discrimination claims, defamation suits, and legal malpractice.

By Michael McDonald - Bloomberg News

By James Queally/The Star-Ledger

CLIFTON — State Police foiled a murder-for-hire plot involving the manager of the famed Tick Tock Diner in Clifton, authorities announced today.

Georgios Spyropoulos, 45, the manager was trying to place a hit on his 57-year-old uncle Alexandro’s Sgourdos, who manages the Manhattan Tick Tock Diner and is co-owner of both establishments, authorities said.

“He was motivated by greed,” Attorney General Jeffrey Chiesa said today at a press conference. “Spyropoulos allegedly planned in great detail how he would have his uncle tortured, robbed and murdered and he enlisted two men who he thought would carry out his ruthless plot.”

Georgios Spyropoulos, 45, seen here, was trying to place a hit on his 57 year old uncle Alexandro’s Sgourdos, who manages the Manhattan Tick Tock Diner James Queally/The Star-Ledger

Spyropoulos first met with a man he believed would aid in the hit in February inside the Tick Tock Diner, according to State Police Detective Pete Laying.

He allegedly asked that man, who turned out to be a State Police informant, to help him find someone who would kill his uncle after torturing him to obtain the combination to the safe his uncle kept inside his Clifton home, Laying said.

Spyropoulos believed the safe contained a large amount of cash, according to Chiesa and that his uncle was taking home an unfair share of the restaurants’ profits.

Spyropoulos was introduced to the purported hitman during a meeting in late March at an unnamed restaurant on Route 3 in Clifton, authorities said.

He agreed to pay this hitman, who was actually a State Trooper, $20,000 to kill, rob and torture his uncle. The hitman was given two other instructions, Chiesa said: make the body disappear so police would investigate the case as a missing person’s case instead of a murder.

And if his uncle’s wife saw anything, the hitman should kill her as well.

Spyropoulos’ next-door neighbor said he was shocked at the allegations against the Tick-Tock’s manager, whom he called a “gentleman.”

“He’s a good working man, a good family man,” said Frank Corradino, who’s lived next door for about a decade. “I never saw anything strange.

“It would shock me.”

Alan Darian, a good friend of the Spyropoulos family said he could not believe the news. He saw Spyropoulos only a few days ago and said the genial owner, who always had a smile and kind word for everyone at the diner, betrayed no hint that anything was a miss.

“Never in my entire life would I have believed that anything could be in his brain like that,” Darian said. “If you had a daughter who wanted to date George , you would have had the utmost of confidence and would have welcomed him in to your family.”

Sgourdos was not made aware of the plot until after his nephew was arrested but police were watching both men at all times in case Spyropoulos changed his plans.

On April 2, at a final meeting, Spyropoulos gave the hitman a $3,000 down payment and an unregistered handgun. The hitman said, “as soon as I leave here, this is on,” Chiesa said. He also supplied the purported hit man with photos of his uncle, schedule of his daily routine and his home address.

Spyropoulos was arrested at the diner shortly before noon on Tuesday. He was “shocked,” Chiesa said, when he was placed in handcuffs.

Al Adrianos, a long-time Tick Tock customer said Spyropoulos seemed like a nice guy.
“But who knows what’s going on in someone’s head,” Adrianos said.

Spyropoulos’ home was searched and authorities discovered handguns, a shotgun and an assault-style rifle.

He is charged with conspiracy to commit murder, attempt to commit murder and weapons possession.

He was taken to Passaic County jail and held on $1 million bail.

Star-Ledger staff writers Seth Augenstein and Dan Goldberg contributed to this report.

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37 comments so far

Pause Live Updates »

eazzie7280

Thanksgiving sure is gonna be interesting this year for that family.

Wednesday, April 10, 2013, 3:37:26 PM

· Reply

mtbike24

They should outlaw all high capacity murder for hire plots.

15 Seconds Ago

· Reply

479BC

if found guilty lock him up for the rest of his life.

6 Minutes Ago

· Reply

Tingles

I believe I seen this guy interviewed on a food cable channel about diners.
I guess I’ll see him on that TV show Lockdown in the future.
Nice job NJSP.

18 Minutes Ago

· Reply

arbysarbys

What’s the dinner special tonight??? Murdered Uncle with a side of torture topped with blood gravy. For $2.50 extra, you get the complete meal inclusive of Murdered Uncle’s wife. Sorry, only salad OR soup.

18 Minutes Ago

· Reply

Tingles

No Pessi! Coke!

16 Minutes Ago

· Reply

bowhrad

Those who want to own a diner in New Jersey should be subjected to a universal background check. That’s the only way to stop this nonsense.

19 Minutes Ago

· Reply

potrzebie

“OK, I want you to kill my uncle”
“Anything else?”
“Yeah, you gotta’ torture him first….and get the safe combination…..oh yeah, and get rid of the body…..oh yeah, and if his wife sees you, kill her too.”
“You want fries with that?”

22 Minutes Ago

· Reply

nikitas84

tick, tock…time’s up, malaka!

Tingles likes this.

28 Minutes Ago

· Reply

sickofit

$20,000 doesn’t even seem like enough for all that. Then again, it’s a down economy……

57 Minutes Ago

· Reply

mcgreger

He better just throw in the towel, or maybe i should say throw the glass

57 Minutes Ago

· Reply

JoeUnion

The biggest tax cheats in AMERICA. Greek diner owners!

Kevin Retcho likes this.

58 Minutes Ago

· Reply

Curly_SB

Diners, drive-ins, dives and dead guys.

Tingles likes this.

59 Minutes Ago

· Reply

MCGuy

Geez Georgios, why didn’t you just call Robert Irvine at Restaurant: Impossible?

1 Hour Ago

· Reply

bigego

Always something going on at the Tick Tock! Wasn’t there something a few years back about politics?

1 Hour Ago

· Reply

alexanderc

sounds like an episode of Blood Relatives on Investigative ID

1 Hour Ago

· Reply

Really-what exit?

At the Tick Tock Diner the hamburger deluxe comes with a side of M-U-R-D-E-R!

1 Hour Ago

· Reply

mikynewark

Oh, those crazy Greeks are always playing around.

1 Hour Ago

· Reply

Tinman88

most overrated diner ever.

BritishBanker and MrG like this.

1 Hour Ago

· Reply

BEFootball2009

I agree. I can think of 4 off the top of my head I’d rather go to.

1 Hour Ago

· Reply

hobokenguy1976

They should charge George with over cooking the fries too much. His bail should be 50000 order of mozzarella sticks, not a million bucks

hobokenguy1976 likes this.

2 Hours Ago

· Reply

dasgreat

“Woke up this morning, got yourself a gun…”

2 Hours Ago

· Reply

doctorphil1

All he had to do was invite his uncle for a good, home cooked meal at the Clifton Tick Tock Diner and let nature take its course.

Tingles likes this.

2 Hours Ago

· Reply

Tingles

LOL!!!!!!

15 Minutes Ago

· Reply

BOINK!

Chee-burger, Chee-burger, LEAD no Coke! Tick-Tock, time was running out for Uncle Alex!

2 Hours Ago

· Reply

kumbayabear

How is it that so many people looking for a hit man end up hiring an undercover cop? Do the police put fake ads in the back of Popular Assassin magazine?

bowhrad, sickofit, justice, DeportImport and notmyidea like this.

2 Hours Ago

· Reply

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doctorphil1

They advertise in the assassins section of the yellow pages.

justice and cityhallcash like this.

1 Hour Ago

· Reply

kb

I dunno. It’s all Greek to me!

Tingles likes this.

1 Hour Ago

· Reply

Dunellen411

Looks like if Pete makes it to the Tick-Tock, there’s going to be a sign “Under New Management”… http://www.nj.com/passaic-county/index.ssf/2013/04…

2 Hours Ago

· Reply

silverbridge

Maybe we can take over and move the diner to the empty lot on Madison. It would be nice to have a diner in town. George at Texas Wiener may not appreciate it though.

1 Hour Ago

· Reply

JohnI360

This sounds like a great idea for a murder mystery:
“Murder at the Tick Tock: Die Heavy”

rev66vette likes this.

2 Hours Ago

· Reply

unpaideditor

I guess the S.L. can’t spend any money on someone to proofread. “It was originally opened in 1948 and has changed several times over the ensuing decades.” Changed what? – The owners? The decor? The oil in the fryers?

2 Hours Ago

· Reply

Tinman88

yes that’s the important part of the story.

1 Hour Ago

· Reply

kb

Certainly not the oil. It has been declared to be of Historical Significance.

Tingles likes this.

1 Hour Ago

· Reply

jerseytarzan

Murder for hire: Isn’t that on the menu there?

“I’ll have two eggs over easy, a cup of coffee regular, and a murder for hire”

“Will that be the Passiac River cement shoes?”

“Yes…wait no. I’ll have the Meadowlands oil barrel.”

justice likes this.

2 Hours Ago

· Reply

bowhrad

No “Permanent Sleep in the End Zone?”

18 Minutes Ago

· Reply

V. Markova

Wow! I love both these places. Diner guys ordering hits on each other. He should have called Tony Soprano.

2 Hours Ago

· Reply