An article Tuesday incorrectly reported the findings of the Merit Systems Protection Board in the case of Energy Department official Gordon Harvey. The board said Harvey had "deliberately idled" a subordinate and retaliated against the employe when he complained about the idling. But the board said there was insufficient evidence to prove a "causal connection" between the subordinate's disclosures to congressional investigators and Harvey's actions.
The Merit Systems Protection Board has ordered the Energy Department to demote a senior manager to a nonsupervisory job for at least three years because he took action against an employe who had reported waste, fraud and abuse.
The finding against Gordon W. Harvey, assistant DOE inspector general for audits, marks the first time since the merit board was created in 1978 that it has moved to discipline a member of the Senior Executive Service and the second time it has disciplined someone in a whistle-blower case.
The three-member board also rejected what is commonly known as the "Mt. Healthy defense," a reference to a 1977 Supreme Court decision, Mt. Healthy School District v. Doyle, that was viewed as a threat to whistle-blower protections.
In the Mt. Healthy case, the court held that an employer must be given an opportunity to show that an employe would have been reprimanded "even if there had been no protected conduct."
K. William O'Connor, special counsel to the board, had argued that the Mt. Healthy decision should not apply in the Harvey case or others involving whistle blowers because those who take action against whistle blowers should be punished, regardless of legitimate reasons for firing the employe.
The board agreed, saying, "Our concern in a disciplinary action . . . is whether a respondent should escape discipline for a prohibited personnel practice even if there is a lawful reason for taking the personnel action. We hold that Harvey may not escape the conclusion that he committed a prohibited personnel practice."
In a three-page, DOE news release, Harvey called the board's ruling "wrong," said he was innocent and complained that he had not been allowed to present evidence of "prosecutorial abuses" in his case at his original board hearing. He said he would appeal the ruling.
The board's decision upheld an earlier ruling by an administrative law judge who found that Harvey had taken action against Charles Gorsey, a former DOE auditor, because he answered a congressional investigator's questions in 1981 about DOE waste and mismanagement. Gorsey's charges were not substantiated, but the judge said Gorsey "had a reasonable belief that he was disclosing wrongdoing."
Several months later, Harvey tried to fire Gorsey during an office reorganization, then sought to reassign him. For two months, Gorsey "was deliberately idled" by Harvey and "performed no work whatsoever," the judge said.
In March 1982, Gorsey showed DOE personnel officials a draft of a complaint that he planned to file with the Protection Board that described his disclosures to Congress and his problems with Harvey. Gorsey said that he would prefer not to file the complaint and that he would accept a demotion if he were given a meaningful job, records show. DOE reacted by asking the Justice Department to prosecute Gorsey for blackmail, but Justice declined.
Gorsey was not given a new job. Instead, at Harvey's recommendation, he was denied three reassignments until DOE ordered him transferred from Washington to Albuquerque. After Gorsey filed his complaint and quit DOE to become a Navy auditor, the Albuquerque job was abolished.