Whistleblower had been promised bonus
By John Solomon
Associated Press Writer - January 26, 2005, Seattle Post Intelligencer
WASHINGTON -- A government scientist who blew the whistle on shoddy
research had been recommended for a cash bonus, but his bosses pulled it
back and tried to fire him after the scientist raised allegations of
interference with his safety work, memos show."This is going to take some work," National Institutes of Health AIDS
Division Director Dr. Edmund Tramont wrote Feb. 23, 2004, in an e-mail
that laid out plans to fire whistleblower Dr. Jonathan Fishbein. "In
Clauswitzian style, we must overwhelm with force," Tramont wrote,
referring to 19th-century Prussian military strategist Carl von Clausewitz.
Just weeks earlier, Tramont had recommended Fishbein for a $2,500 award
for his first-year performance and sent an e-mail praising Fishbein for
improving AIDS research safety and compliance, according to memos obtained
by The Associated Press.
Since Fishbein's allegations of shoddy government research practices and
poor patient protections inside NIH were reported by the AP in December,
the agency has said he was being fired for poor performance while on
probation.
NIH officials said this week they could not discuss the new documents
obtained by AP because Fishbein's case is a personnel matter protected by
the Privacy Act.
Fishbein's lawyer said the documents, some of which he hadn't seen before,
clearly conflict with NIH's official story. "This is a clear-cut case of retaliation. NIH's attempt to 'overwhelm'
Fishbein with 'force' was both unethical and demeaning," attorney Stephen
Kohn said Tuesday. "Worse than just retaliating against the whistleblower,
the agency's conduct has chilled the willingness of other employees to
publicly disclose wrongdoing."
Fishbein was hired by Tramont in 2003 to improve the safety and patient
protections in AIDS research after lapses during a high-profile NIH research project in Africa to test the AIDS drug nevirapine.
Last year, he went to Congress with allegations of shoddy science. NIH
says there were problems with the research cited by Fishbein but they
involved paperwork and patient protections and did not affect the
underlying conclusions about the drug's safety.
A judge recently ruled Fishbein has no whistleblower protections, as
normal federal workers do, because he was hired as a special employee at a
higher salary.
The memos show Fishbein was targeted for firing within days of raising
allegations last February of interference and a hostile work environment against AIDS Division Deputy Director Jonathan Kagan."The incessant interference and distraction of Jon Kagan is jeopardizing
my work," Fishbein wrote Tramont on Feb. 4, 2004. "By creating a hostile
working environment for me and other members of my staff, Jon is trying to
destroy my chance at success for this office and the entire division."
Kagan said Tuesday he could not discuss the matter because of personnel privacy.
The memos show Kagan and other NIH officials inquired within eight days of
the complaint about firing Fishbein even though Tramont had just recommended him for the cash award and strongly praised his work improving
research safety and compliance.
"Blunt question. Does Fishbein have a probationary period? I beg you to
say yes," Kagan wrote an administrative official just days after Fishbein filed the complaint. "I assume he has an indefinite T-42 contract, right?
How hard would it be to terminate that?"
Kagan quickly discovered Tramont had just recommended Fishbein for the
$2,500 award.
"If you are thinking about moving on termination you may want to pull the
award recommendation," NIH official Robert Hockensmith wrote Kagan on Feb.
13, 2004.
"Whatever it is, please HOLD!!!!," Kagan wrote back. "Thanks for the
heads-up on that!!"
In the couple of months before that, Kagan had objected to Tramont's
praise of Fishbein, writing in emails he wasn't sure Fishbein was the right man for the safety job and that the scientist hadn't become a part
of the "gang" of NIH researchers, the memos show.
But the firing idea did not emerge until after Fishbein's complaint. Even
as Kagan was setting in motion efforts to fire Fishbein - looking for
irregularities in his time sheets - their division director was giving
fresh praise to Fishbein, the memos show.
"It has not been lost on me that the most complaints I heard from our
constituents when I arrived revolved around what are now (Fishbein's office's) functions," Tramont wrote Fishbein on Feb. 14, 2004, urging him
to work out his concerns with Kagan. "And since you have arrived, I have
NOT heard a single complaint, and when I inquired about that, the answer
has been the change brought about by you."
Internally, NIH officials discovered problems with their plans to fire
Fishbein: He had not been given his six-month evaluation on time and there was no official personnel file started, the memos state.
Tramont wrote the missing paperwork "could be a problem for us" but
nonetheless instructed his staff to take the time to build a case against
Fishbein.
Soon, Fishbein was given a harsh evaluation criticizing his performance on
nearly all fronts. By May, he was told he was being fired, but NIH has never completed the termination. That has left Fishbein collecting a
six-figure salary, but stripped of all authority and work responsibility.
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Documents related to this story are available at:
http://wid.ap.org/documents/whistleblower.html
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