His Case Left in Limbo, OSHA Official Getting Paid Not to Do His Job

By Joe Davidson
Thursday, February 19, 2009

The image of the government bureaucrat who does nothing all day is offensive and unfair, except in the case of Bob Whitmore.

The Labor Department pays him $150,000 a year, and he doesn't do a thing -- literally nothing.

Whitmore, director of the Occupational Safety and Health Administration's record-keeping group, wants to work, but he has not been allowed to since July 16, 2007. That's when he was placed on paid administrative leave. The reason, according to a memo sent to him that day from Keith Goddard, OSHA's director of evaluation and analysis, is "allegations of disruptive and intimidating behavior."

More on that later.

The immediate question is not about what Whitmore did or did not do. The issue is why is he getting paid so much for so long for doing nothing.

Agency officials should fire him if his behavior warrants it. If, however, they can't come to that conclusion, and evidently they have not, then put him back to work.

Since Whitmore isn't using his office, his colleagues eat lunch in the windowless room, number N3507, in the Labor Department's headquarters at 200 Constitution Ave. NW. Some of his papers have been boxed, but otherwise the small space awaits his return. Pictures of his daughters grace the walls, as do their childhood drawings. There are team pictures of the 1997 Baltimore Orioles and the 1999 Ravens. A Johns Hopkins Medical Center baseball cap and a blue cotton United Steelworkers shirt are on the coat rack.

Above his printer is a cutout of Kenny McCormick, from the animated "South Park" television series. "He's my hero," said Whitmore, 61, because Kenny might die one week but he's back the next.

The calendar says 2007.

Whitmore's case points to a lack of pertinent guidelines on administrative leave. "It appears that there are no government-wide rules or regulations addressing the permissible duration of administrative leave," said B. Chad Bungard, general counsel of the Merit Systems Protection Board.

But agency officials should not need regs to define common sense. Department policy says administrative leave should be "reasonable and brief." Whitmore's certainly has not been brief. If officials think it's reasonable, they won't say why because they are not allowed to discuss individual cases.

Goddard's memo, supplied by Whitmore, says he "will remain in a paid non-duty status pending completion of my review of this matter."

That review was turned over to an investigator. According to Whitmore, the investigator told him and his lawyer that the probe was completed about four months after the incident and the results were provided to department officials. Whitmore requested a copy of the investigator's report, but so far he has not seen it. Whitmore, who is not a member of a government employees union, said he was never informed of any appeals procedure.

In an e-mail last week to Kimberly A. Locey, OSHA's director of administrative programs, Whitmore protested the lack of due process in his case. "It has been nearly nineteen months of no communication from OSHA regarding my forced administrative leave, and the investigation into the allegations that were the basis for my departure," he wrote.

Whitmore's statement to the investigator says the allegations stem from an argument with his immediate boss at the time, Joe DuBois, "over his harassment of me over my" time off.

In an interview, DuBois, who is now retired, said Whitmore was screaming and "showering me with spit."

Whitmore has a different story. "As I stood outside his door, DuBois intentionally spit on the upper right corner of my chest and attempted to shut his door in my face," he said in a written statement to the investigator.

In reaction to that, Whitmore said in an interview, he told DuBois:

" 'If you ever even think of trying to do something like that to me again I'll kick your ass into the basement.' "

His written statement also includes a number of complaints about DuBois and Goddard, who was DuBois's supervisor.

DuBois said he was not disciplined in the matter.

Bob Seldon, Whitmore's lawyer, says the bosses "want him silenced, and this is an easy way to do it." A dismissal could be appealed, Seldon added, and then "all the awful and illegal things they [the previous administration] did in running OSHA would become public."

Seldon referred to a congressional hearing last June in which Whitmore charged that his agency permits companies to underreport injuries to workers. That followed a February series in the Charlotte Observer in which he made the same allegations. A week after the hearing, Whitmore was on a Bill Moyers PBS program.

That publicity certainly won't win Whitmore any friends around the department. An agency spokesman said "worker safety and health is of paramount importance to the Department of Labor."

Who did what to whom won't be resolved in this space. What is clear, however, is a high-ranking civil servant has been left in fully paid limbo. That is not "reasonable."

Contact Joe Davidson at federaldiary@washpost.com

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