By Jim Furnish
Forest Magazine, Fall 2006

A Chinese proverb says, “The protruding nail gets pounded”— a not–so–sympathetic reflection of reality for many whistleblowers. Is the saying a warning or a lament?

The U.S. Supreme Court recently issued a 5–4 opinion against a Los Angeles deputy district attorney, holding that the Constitution does not protect public employees against discipline by their supervisors for anything they say in the course of performing their assigned duties. The nuanced decision raises questions about the extent to which whistleblowers face the danger of retaliation.

Justice Anthony Kennedy wrote the majority opinion, which drew a formal distinction between two kinds of speech by public employees: statements they make “pursuant to their official duties” and those made as citizens contributing to “the civic discourse.” The first category is not protected by the First Amendment’s guarantee of free speech, Justice Kennedy wrote, while the second retains “the prospect of constitutional protection.”

In this particular case, the deputy district attorney suspected an affidavit had been falsified in pursuit of a search warrant, thus tainting the prosecution’s case. To his credit, he objected to his superiors, but he became distressed when they pursued the case anyway. Things got interesting when he later testified for the defense at a court hearing, and spoke about the issue at a meeting of the Mexican American Bar Association. In his lawsuit, the deputy district attorney claimed that in retaliation, he was given an unwelcome transfer and was denied a promotion.

Beginning to sound familiar?

I believe that the health and success of agencies and organizations are dependent on a work environment that respects employees who take issue with managers, while creating an expectation of civility for both parties. I’ve been on both sides of this issue.

Although I never was a whistleblower, I’ve taken issue with my superiors many times. I like to think I was a principled critic rather than a mere crank—but that depends on one’s perspective. As a manager, I have chafed and even behaved badly when people told me they couldn’t stand my great ideas. But at least they were telling me what they thought and, I hope, trusting me to not retaliate against them.

In this recent decision, the Supreme Court delivers justice on a narrow point of law, and gives the impression that retaliation is permissible, unless the critic goes public—maybe, sort of. But even if one were to concede that Justice Kennedy and the other four judges were technically correct, all law is not necessarily wise. I believe wisdom lies in respectfully accepting ideas that are at odds with management, while overtly addressing the issues in contention as part of transparent decision making.

I vividly recall one episode that occurred while I was deputy chief of the U.S. Forest Service, and I share it here because I think it illustrates how a healthy work environment responds to criticism.

I believe it was 2000, and Gloria Flora, the forest supervisor for the Humboldt–Toiyabe Forest, was in the news because she had referred to some other leaders in the Forest Service as dinosaurs. If the shoe fits, wear it—and some of those people put the shoes on right away and said they didn’t like being insulted. And they expected Forest Service Chief Mike Dombeck to reassure them that there were no dinosaurs. Publicly. Just to set the record straight. Time magazine, in a piece that was profiling Dombeck as a harbinger of change for the Forest Service, asked him to comment on “the dinosaurs.” Dombeck demurred.

But Mike Lunn did not. Lunn, then the Siskiyou National Forest supervisor, took umbrage at Flora’s unflattering characterization. Lunn wrote a lengthy letter to Dombeck, calling him out as to where he stood on the dinosaur issue and telling him where he should stand. Lunn then e–mailed the letter to dang near everybody in the Forest Service.

To say Lunn’s letter created a firestorm of hot e–mails that whipped around cyberspace in an orgy of chest–thumping would be, well…accurate. After Dombeck read the letter, he asked for my counsel. After reading it myself—and checking my fingers for burns—I said “Call Mike, thank him for the letter, and then just talk with him.” Lunn had raised issues that needed some dialogue. Dombeck needed to acknowledge the career that lay behind the words, and respect it.

There’s more, much more, to the story. But the point here is that Lunn felt safe—at least, safe enough to openly take on the Chief. It had been done before. In fact, Forest Service Employees for Environmental Ethics pretty much began with a letter from Jeff DeBonis to Forest Service Chief Dale Robertson ten years earlier. And about this same time, a bunch of forest supervisors had written the infamous “Sunbird letter” to Chief Robertson, criticizing the agency’s out–of–kilter focus on timber production. Their letter, which was delivered during a meeting of Forest Service leaders in Phoenix, Arizona, quickly hit the press, and constituted a breach of long–standing agency etiquette that viewed taking dirty laundry public as a no–no.

I sense something has been lost in the past few years, not only in the Forest Service, but in many other public agencies as well. People are just plain scared to speak their minds. When that syndrome deepens and hardens, an organization has lost something precious that is difficult to restore.

Healthy organizations recognize the value of diverse thinking: they use the marketplace of ideas to hammer out policy choices, and they don’t kill their messengers. These messengers need not be venerated, but they must be tolerated and accepted as a necessary and reasonable characteristic of organizations undergoing change. In short, a healthy organization makes whistleblowing unnecessary.

There’s a simple three–step process for dealing with internal issues: hear and understand the issue, tell the concerned party what is to be done about the issue (including nothing, if that is the case), and share your rationale. Some people may not be willing to accept that they won’t get their way, but most will. If they still want to blow the whistle, they have the right. And they should not face reprisals.

George Will opined that this Supreme Court ruling demonstrates the benefit of judicial restraint evident in the new makeup of the court, because it prevents the judiciary from “supervising American life.” I understand his point of view, but I think public organizations that feel more secure now in disciplining the occasional griper have far bigger systemic issues that merit their attention.

Fundamental change has been in the air for the Forest Service for many years, and now the agency has a wonderful opportunity in its hands. It is a reasonable argument that the Forest Service is the most open federal agency, in the most open government, in the most open society in the world. National forest lands are also open to the people who use them, as are the hundreds of offices and thousands of officials who serve the public. The agency’s long history is one of being well connected to the public, yet I fear the Forest Service is not responding appropriately to the anger that is all too evident among many of its own employees, as well as disaffected citizens. Shutting employees up, and shutting people out, is not the answer. A better approach for the Forest Service goes something like this: listen like you really care what your critics think.

The very fact they are complaining means that they still care about their jobs and the mission of the agency, and that they believe their concerns will be heard.

Jim Furnish was instrumental in the creation of the Roadless Area Conservation and Forest Planning regulations during his time as deputy chief of the U.S. Forest Service. He is now retired, after a thirty–four–year career with the agency.

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