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, freĀquently attempt to muzzle whistle-blowers with so-called “money-for-silence” agreeĀments. 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 agreeĀments could be: “A confidential report, titled `Secret Money for Silence AgreeĀments 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 supĀpressed safety information from MortonĀ-Thiokol’s engineers, the Challenger disasĀter could have been avoided. It is frightenĀing to think that we may be dealing with multiple nuclear equivalents of the ChalĀlenger 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 promĀised 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 reasonĀable steps to resist any subpoena requiring his testimony at such proceedings.
Macktal later revealed the agreement anyway, but the Nuclear Regulatory ComĀmission (NRC) ruled that the restrictions imposed on Macktal’s ability to communiĀcate with federal agencies did not constiĀtute “a violation of Federal law or NRC regulation.” Later, bowing to pressure, the NRC reversed its position. “Yet whether through ignorance or guile, corporate atĀtorneys 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-blowĀers with “money-for-silence” agreements, no such protection for prospective informĀers and the public exists outside the nuclear industry. According to Aronson, the Toxic Substances Act; the Occupational Safety and Health Act, Superfund and laws reguĀlating mine safety, clean air and clean water, can all be undermined by moneyĀ 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, “environmenĀtal whistle-blowers will remain without proĀtection. Many will be gagged by outraĀgeous hush-money restrictions.”
Ā 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 docuĀments used in specific cases; Agent OrĀange 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 hearĀings on Capitol Hill were episodically covĀered in the Washington Post. To my knowlĀedge, 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 enviĀronmentally 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 conĀflicts that arise when `public interest’ lawĀyers serve masters whose interests are not necessarily coincident — the `public’ and their individual client whistle-blowers. “Those best served by current pracĀtices (such as secret settlements) are corĀporate interests and government regulaĀtory bodies with a stake in minimizing the public impact of health and safety conĀcerns raised by whistle-blowers.” Aronson also wanted to acknowledge his appreciation to the Fund for InvestigaĀtive Journalism for supporting both The Nation and The Progressive articles.