Source: The Progressive, 409 E. Main Street Madison, Wl 53703, Date: August 1992, Title: “Buying Silence,” Author: Geoffrey Aronson
SSU Censored Researcher: Blake Kehler
SYNOPSIS: Many companies, especially within the nuclear power industry, frequently attempt to muzzle whistle-blowers with so-called “money-for-silence” agreements. Some would-be whistle-blowers, in fear of jeopardizing their job security, pledge not to reveal safety violations in return for token cash settlements.
Investigative reporter Geoffrey Aronson warned how tragic such agreements could be: “A confidential report, titled `Secret Money for Silence Agreements in the Nuclear Industry,’ compiled in May 1989 by the staff of the U.S. Senate’s subcommittee on nuclear regulation, warned, `If management hadn’t suppressed safety information from Morton-Thiokol’s engineers, the Challenger disaster could have been avoided. It is frightening to think that we may be dealing with multiple nuclear equivalents of the Challenger disaster.”‘
Joe Macktal, a worker at the Comanche Peak nuclear power plant in Texas, settled with his employers, Brown & Root, Inc., for $35,000 (of which $20,000 went to legal fees). Macktal had been fired after he discovered potential construction problems at the plant. The company promised not to blacklist him (in an industry where news of “trouble-makers” travels fast), in exchange for a pledge not to appear voluntarily in any administrative or judicial proceedings regarding the safe operation of Comanche Peak. Grudgingly, he agreed to this and also to taking reasonable steps to resist any subpoena requiring his testimony at such proceedings.
Macktal later revealed the agreement anyway, but the Nuclear Regulatory Commission (NRC) ruled that the restrictions imposed on Macktal’s ability to communicate with federal agencies did not constitute “a violation of Federal law or NRC regulation.” Later, bowing to pressure, the NRC reversed its position. “Yet whether through ignorance or guile, corporate attorneys representing the nuclear power industry are still attempting to peddle hush money settlement agreements,” Aronson reports. “One draft settlement written in January 1992, for example, would require the whistle-blower `not to cooperate in any investigation of the company by the NRC. “‘
Although the NRC and the Secretary of Labor have decided to outlaw future attempts to muzzle nuclear whistle-blowers with “money-for-silence” agreements, no such protection for prospective informers and the public exists outside the nuclear industry. According to Aronson, the Toxic Substances Act; the Occupational Safety and Health Act, Superfund and laws regulating mine safety, clean air and clean water, can all be undermined by money for-silence agreements.
In September 1991, the National Whistle-Blower Center petitioned the EPA to adopt regulations that would explicitly outlaw restrictive agreements. The EPA declined. “Without EPA action,” explains Steven M. Kohn, an attorney who chairs the Whistle-Blower Center, “environmental whistle-blowers will remain without protection. Many will be gagged by outrageous hush-money restrictions.”
COMMENTS: Author Geoffrey Aronson feels that the subject of secret settlement agreements to squelch further inquiry or publicity has rarely been a topic of media inquiry. Instead, Aronson said, “Concern has centered on the issue of public access to court proceedings generally, and the desire to unseal court-ordered sealed documents used in specific cases; Agent Orange and auto liability cases come to mind.
“When actions against the Comanche Peak nuclear plant were settled in the summer of 1988, there was coverage in the Texas press and an article that I wrote for the Nation in late 1989. Subsequent hearings on Capitol Hill were episodically covered in the Washington Post. To my knowledge, however, there has been no inquiry into the use of these types of settlement agreements in the other environmental arena which I discussed in my Progressive article.
“The public should be aware of the tension that exists, and the conflicts that arise in the nuclear power and other environmentally related areas when issues of public health and safety compete with corporate and private interests. Public safety may well be compromised by a legal and bureaucratic system that `privatizes’ disputes relating to violations of statutes aimed at protecting the public good. I feel it is also important to illuminate the conflicts that arise when `public interest’ lawyers serve masters whose interests are not necessarily coincident — the `public’ and their individual client whistle-blowers. “Those best served by current practices (such as secret settlements) are corporate interests and government regulatory bodies with a stake in minimizing the public impact of health and safety concerns raised by whistle-blowers.” Aronson also wanted to acknowledge his appreciation to the Fund for Investigative Journalism for supporting both The Nation and The Progressive articles.