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AIDs, Whistleblower Had Been Promised Bonus

Whistleblower Had Been Promised Bonus

1 hour, 20 minutes ago
White House - AP Cabinet & State

By JOHN SOLOMON, Associated Press Writer

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.

AP Photo

"This is going to take some work," National Institutes of Health (news - web sites) AIDS (news - web sites) 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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