A Whistleblowing Case Study

A Whistleblowing Case Study

The Missing White House e-mail

Section 1

The narrative summary of the case

Gehringer, F (2002) missing white house e-mail: a whistleblowing case study. North

Carolina State University. Retrieved from

http://research.csc.ncsu.edu/efg/ethics/papers/ASEE02.pdf

On 19th February 2010

Between the period of March 2000 and October 2005 over five million e-mail messages went missing from the White House computer system. This was during Bush administrative regime which was accused of interfering with the national archive as a way of concealing evidence like the controversies surrounding Gore’s fundraising campaign of 2002. He was the vice president at the time. The e-mails could have shown if truly Clinton’s administration sold the trade-mission seats for contributions of the campaign. The lost e-mails also included Monica Lewinsky’s affair and the Iran- contra scandal just to mention but a few. The whistleblowers who knew all about the system were silenced against uttering any information for they were threatened with the possibility of losing their jobs or being jailed.

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A whistleblowing case study

Betty Lambuth a contractor of Northrop Grumman disclosed threats of facing dire consequence if she disclosed any information concerning the e-mails like losing her job. The legal questions that we may ask at this point are what responsibility does a contactor has towards the client and what is the responsibility of a contactor towards the general public? More so, how much evidence would be needed by the White House to own up to technical malfunctioning of its email system? The archive issue led to the formation of a lawsuit under the Federal Records Act and under Administrative Procedure Act to challenge the administration for failure to ensure proper record preservation. Other whistle blowers in this case were Sheryl Hall (the former White House chief computer operator), Robert Haas (White House system administrator), Steve Hawkins (Northrop Grumman boss) and Yiman Salim the computer specialist.

Some of the White House officials who were involved in the cover up accused the whistleblowers for giving irrelevant, inaccurate and simply dramatic accusations. The white house personnel were Mark Lindsay, the White House administrator who threatened Lambuth, Beth Nolan as the White House lawyer. She defended the administration against distortion from Lambuth’s accusations. The Computer Service Customer Care; Laura Callahan, who threatened Haas. The whistleblowers Hall and Lambuth were guaranteed a judicial watch by a law firm fighting at preserving public interest. It sued the White House for matters of the missing emails as well as threatening its employees.

The facts provided by the law courts on this case on November 10th 2008 indicated that the National Security Archive was given the mandate to continue the efforts of forcing the White House to retrieve the record of millions of e-mails that went missing or destroyed. This ruling gave the public a voice to demand the preservation of the nation’s history though that history is made in the White House (Shadmand & William 2008). This is because the court was against the government’s claim of dismissing the lawsuit for the court stated that the Federal Records Act allows a plaintiff whether private or public to bring a suit that would make requirements for the Executive Office of the President (EOP) to ask the Attorney General or to notify Congress to take an action of recovering missing or the destroyed e-mail records.

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Preservation of public interest is achieved when the White House is held accountable of the missing e-mail records. The public was able to learn of the unfolded drama that took a period of eight years. The result was the formation of another file suit by National Archives and Records against EOP to preserve public record in September 5thn 2007. This was accompanied by another law suit by The Citizens for Ethics and Responsibility in Washington DC. The Federal Records Act charter allows such private plaintiffs to file lawsuits against the EOP.

Section 11

Identification of the case and issues

Sheryl Hall in February 2000 publicly announced her allegations towards the officials of Clinton administration for being involved in the e-mail cover-up. She was the White House Computer operator at that time. These emails were made unavailable for the Congress investors and the Justice department. Emails system was being maintained and runed Northrop Grumman’s subcontractor, CEXEC. An employee of this company Betty Lambuth had already notified the White House counsel of the hitch but instead she was threatened with jail.

The problem was first noted in January 1998 when lawyers wanted e-mails related to Lewinsky. Daniel Berry the computer specialist was to do the searching which resulted into a lot of e-mails to Lewinsky but none from her. Ms Lambuth informed the counsel that the problem was preventing ARMS from processing over hundred thousand emails. The Clinton administration officials despite knowing the glitch did not make any effort to repair the system and therefore failed to recover the missing emails by continuing to use dysfunctional servers. The whistleblowers through the group Citizens for Ethics and Responsibility in Washington (CREW) filed the lawsuit that would see into the failure of Clinton’s White House officials (white house document 2009).

The missing emails were said by Hall to be massages send to White House prominent officials including President Clinton. The emails came from Democratic National Committee which was

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sponsoring the 2002 campaign. The four hundred to five hundred send to Monica Lewinsky and Betty Currie who was Clinton’s secretary were also recorded to be missing. Hall further stated that the missing files contained very contagious issues which involved illegal financial transactions for the 2000 campaign that involved the Vice president Gore Al.

The technicians also discovered that the some four hundred and sixty four emails which were missing belonged to White House officials. The technicians also discovered that the White House the automated archiving system server was not working. This meant that the system had failed to store and scan message send through the system. Initially, the missing emails were approximated to be around one hundred thousand. But later it was discovered that over five million of them were not accessible.

Another major problem that can be seen from this case is the threats given to some White House officials and the employees of the contracting company. In 2000 a Northrop Grumman official Vasta Joseph testified that the White House prominent personnel intimidated him and was forced to participate in the missing email cover-up else the company would loss the fifty million dollar contract.

Just like in most organizations, whistleblowers are always at a risk of losing their jobs, the White House as a public organization was no exception in this case. Sheryl Hall and Lambuth were not free from threats in the emails saga. They were threatened of possible loss of job and imprisonment. But in their desire to fulfill public rights they continued projecting their voices. Lambuth was transferred from the White House by here company while Hall left White House to start her own business under the bureau of Tobacco, alcohol and firearms and also as a computer support personal. At least for the two no harsh penalty was given to either of them for their whistleblowing captivity. Many whistleblowers usually pay a great price for their actions, some loss their jobs or get imprisoned especially when there is no sufficient evidence is available to save support their allegations.

Section 111

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Concept applied to the problem

Employee dismissal law and practice is a concept that can be used in this case. The statutory rights of 1981 indicate that retaliation by an employee can occur where the issue is based on racial characteristics or employee’s assertions of a statutory right. A public policy tort plaintiff may therefore win a case if he / she shows’ protecting a conduct was his reason for dismissal (Perritt 2006 pp 107)

Other laws behind this case are first, the Presidential Records Act of 1978 which requires that decision, policies, activities and deliberation that shows all the activities within the presidents, official and ceremonial duties, and his continual and statutory, are well documented and maintained as records of the president. Therefore as the act indicates that documentary materials which includes memorandums, correspondence whether electronic or mechanical, whether received or sent, all should fall under the act. The bottom line massage of this is that the administration was required to maintain and keep all it emails

Another law is the Hatch Act of 1939. The official name of this act is an Act to Prevent Pernicious Political Activities. In the early years of the implementation of this act, it aimed at preventing employees from the federal government from being part of organizations which aimed at overthrowing the government after the “red scare” of the 1950’s. Currently, however this act allows the employees to be part of political parties but alongside they are not required to conduct any political activity during duty hours. This act therefore does not permit Federal employees to conduct any political work using email accounts or any physical political work in the White House (Gewirtz 2007pp 58-, 60)

The White House is a public organization. Organization theories can be applied so that we can fully understand the public White House in which I can recommend ways and means of promoting and enhancing better performance with in it. Any organization carries human skills and values, technologies and material resources (Scott & Mitchell 1995). The organization is the vehicle that factors of production are brought together, changed into useable values then

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distributed into consumable form as services and goods. The White House needs to adhere to Presidential Records Act which gives a mandate to preserve presidential records. All presidential records that concerns the military, national security secrets, diplomatic presidential communications, legal work and any legal advice messages all these have to be recorded and preserved for national importance. After the millions of emails went missing, watchdog groups The Citizen for Responsibility and Ethics Washington and the Wall Street Journal whose mission is to promote accountability and ethics in government started a mission to pressurize the administration to be accountable for the missing emails since this was a violation of the Act.

Max Weber postulated that every authority system has to secure and establish a belief of its legitimacy which can be done in various ways. First is the charismatic form of authority based on charisma personality. Secondly the monarchy system and thirdly is the rational-legal where the rule of law applies. The Unite Sates White House is based on this third form authority which uses rational and legal principals in all it activities. It is an organization where by bureaucracy is in existence. Bureaucracy is the hierarchical division of formalism and labor.

The staff’s members in the White House clearly know and understand the law. The CREW accused the White House for willing fully violating the law. This is a show of misuse of power. The watchdog group has also questioned the White House officials on what excuse could they offer to go against that Hatch Act and the Presidential Record Act. It was also ironical for the staff members to go against the Clintons administration policy of 1993 in which Mark Lindsey the then assistant of president management passed this policy to call for all staff members to maintain all the records that came in including emails. The memo also stated that the use of internal official emails network was a prohibition in the White House. It therefore required staff members to use the emails only for official use.

However, one major challenge is that the Bush administration had refused to publicly declare it s record keeping process. The practices of officials in Bush administration also became questionable. The White House staff members used the Republican National Committee email account for conducting their official businesses. This was the period where a lot of scandals surrounded Jack Abramoff. Scoots Jennings the deputy political director for State House was for example was using this account for communicating with Alberto Gonzales who was the new US Attorney. This shows misuses of the email system by those in high power. This therefore goes

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against the Hatch Act. The officials when asked why they used this account, they said that they were using RNC account so as to avoid violating this Act. It is an untrue excuse because the act prohibits the staff members from using the available official resources for political activities.

Scott’s communication with the new US Attorney is under public relation activity that is political in nature (CREW, 2010)

The open system theory postulates that an organization is not an individual entity since it is based on the society. Its system of operation and technology has to rhyme with the environment. A change in the environment requires it to change with in order to survive (Emory and Trist 1992, pp21-32). The use of the emails system controversy in the White House dates back before the development of the internet like the use of web browsers, Gmail, Hotmail or Lotus notes. President Ronald Regan tried to delete all the emails from the White House computer at the last week of his reign in 1989. This was the month of January which was his last week in office.

President George Bush secretly signed a deal with the United States Archivist at eleven PM of the last day in office in January 1993. This was an attempt to hide his emails and take them with him to his retirement in Texas. President Bill Clinton attempted to put out the National Security Council so as to keep away the White House emails from reaching The Freedom of Information Act. These cases bring all the White House emails controversies that existed with time.

The White House being a public organization is under constant scrutiny from the citizens. The open theory can be applied in such a scenario. This is a modern theory that contrasts from the classical theories which consider organizations as static entities. The two theorists, Twist and Emory give levels of the environmental factors that influence the structure of an organization.

The White House decision to delete email messages places its officials at a challenging position for such an act violates the law.

Section 1V

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Alternative action

From the case study several alternative could have been taken to prevent the loss and the consequences that arose from the deleted emails from the White Hose. First, the White House Counsel could have rectified the email system if the system was dysfunctional. Steven McDevitt has had accused they way the White House specialists have recorded data as being primitive. He says that the technology used does not guarantee that all the records coming in and out are adequate maintained both in their modified and completed state. It is therefore important that the White House council considers more modern technologies to prevent such occurrences in future.

The missing emails were first noticed at the time of firing US attorney general. This was also a period in which the Iraq war was starting and the time when the CIA operative- Valerie Palm was identified. Such coincidences of events make the public to be more suspicious of what was going on in the White House. And to prevent such misunderstandings, the council has to consider ways of preventing itself from tinting their public image.

Lambuth first claim that the email system had a problem was supposed to alert all the officials to take an appropriate and immediate action. The delays resulted into millions of emails not being recorded. But since the officials did not take any action meant they were aware and not willing to rectify the problem. This was seen also as a way of tempering with evidence that could be used in court in the cases concerning campaign finances of 2000 and the Lewinsky case of 1998.

Another alternative was that White House officials were to base their conscious to true facts because most of them threatened their juniors if they revealed the truth. By they were going against the law. The only secrets that the white House officials have and supposed to have for the purpose of enhancing security and peace in the country. Such information is always politically sensitive and relate to national security. Hiding information concerning the missing or destroyed emails was wrong step in enhancing public trust.

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It was also important to stop politicizing the issue due to national security. The representative from White House Davis Tom said the republican was on the panel but it was also important to consider the case of probable technicalities that could not have worked. He therefore advised political critics to stop making political allegations that were against the White House.

The White House as a ruling office, instrument of law and a public organization should not have broken such a law. It is embarrassing and under grades the competence of its officials. Waxmann of CREW noted that this was the first time such allegations were thrown towards the White House and that it was ironical for an independent and congressional body to break it own polices. By this it referred to President Bush policies of 1992 which aimed at making all the White House officials preserve all the of records including emails within all its departments.

Finally the email system processor which initially had Outlook/Exchange processor should have been kept that way without tempering with it. It was therefore not fit to adequately manage records from emails. This was an approach to interfere with the storage of email messages for it could no longer maintain auditing and tracking of all records going through the system.

Section V

Selection of recommended alternative

The major alternative is to ensure that all the missing email records are recovered and stored. The Presidential Record Act (PRA) of 1978 gives the mandate to the public the right to ensure that the presidential records are safely stored and maintained as historical records for the country. At least by December 2009, the White House had agreed to restore all the vanished emails (BLT 2010).This was announced by a watchdog group in which the Obama

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administration declared that it will rescue the lost emails.

This will be done through backup files which will then be sent to the records administration and to the National Archives for storage. The administration is also ready to give reports related to the White House System which had failures and how the previous regime handled the problems it had. The chief council for CREW –Anne Weismann said that the recovered emails will however be separated into two groups, for the federal records and those for the presidential records which could be accessible to members of the public at their request.

The PRA requires that the president is made the custodian of all presidential records. He is also responsible for the management of such records. The act also defines that the public owns the records and that members of public have a right to know what is contained in the missing emails and all other presidential records. The Act also allows the president to discard any record that it is considered to add no value to the historical, informational, evidence and administrative importance. This can only be done if he has consulted with the National Archivist of the US. This is when the proposed document can be disposed. The staff members under the president and the president himself are required to take strong actions and steps toward ensuring tat at all the information is recorded and maintained.

The PRA finally, allows members of the public to access any presidential information. This is through the Freedom of Information Act which can happen after five years after the end of a regime.

Section V1

Recommendations

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The root cause of this problem has been attributed to The Hatch Act of 1939 with no coherence, the administration –spanning IT operations directorate and the nature of politics at that time.

The Hatch Act is considered as a strange beast (Gewirtz 2007 pp 162) because at first the act was mainly to control employees from being members of organizations that aimed at overthrowing the government. Yet currently, the same act allows Federal employees to engage in political groups but no political activity should be done when one is on duty. This act therefore shows conflict within the concerns of national security. Under this act, the Federal employees are given the right to register and vote, express opinions or a presidential candidate, contribute money to a political organization, be a candidate in a partisan election for a public office and so on. My recommendation is to the White House to amend this law. So as to ensures all it staff are allowed and required to use government system that are secure for all forms of communication whether political or not.

The lack of professional IT agency was also seen as another root cause to the hitch but what we may wonder is whether the IT management was truly incompetent in its work in the White House email system as it may seem. Or was an excuse to pretend to be clues of the missing email records by the White House officials. As a recommendation the White House counsel has to be keen on who mange its IT systems through all the departments. The IT managers have to be competent, professional and have a procedure just like that of the secret service. They have to manage the entire library of emails as a White House archival center. They have to be in charge of it’s maintain ace such as technologically upgrading the system once in every four years to in rhyme with file format and technology change. This means that even political files and mobile phones used by White House staff need to be under the management of the same IT team. This will ensure that even if a file gets lost only the IT team is held responsible instead of the administration.

The details concerning the President Record Acts ought to be made public in that any citizen interested in finding any information, he or she can easily and freely access it. Division of labor is another principle that was laid down by Fayol Henry in which the important factor is to advocate for a unified command from a supervising body. Unity of command is an important factor in a public organization for it enhances coordination of all federal servants serving at different branches.

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Mary Perker contributed that social conflict is inevitable in any organization which can be used to find problems in an organization hence achieving harmony. She argued that since all employees are social beings, the self fulfillment of an individual is through processes within the group. This group being coherent and cohesive, it can influence ones physiological and ideological condition. Therefore it is important for all the officials in White House to preserve the law and work in harmony for the common good of all.

Reference

Williams, J & Shadmand, S (2009) court rejects white house on missing e-mails.

Retrieved from

http://blogs.findlaw.com

On 32 rd February 2010

Perritt, H (2006) Employee dismissal law and practice, fifth edition. Aspen Publishers,

pp 106

Gewirtz, D (2007) where have all the emails gone? ZATZ Publishing, pp 67-83, 162 &

198-222

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CREW report (2010) without a trace: the missing white house emails and the violations

of the presidential records act. Retrieved from

http://www.commondreams.org/news2007/0413-01.htm

On 32 rd February 2010

THE Blog Legal Times (BLT),(2009) white house agrees to restore emails. Retrieved

from

http://legaltimes.typepad.com/blt/2009/1

On 23rd February 2010

Emery, F & Trist, E (1965) the causal texture of organizational environments. Human

Relations, Vol 18, pp 21-32.

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Gehringer, F (2002) missing white house e-mail: a whistleblowing case study. North

Carolina State University. Retrieved from

http://research.csc.ncsu.edu/efg/ethics/papers/ASEE02.pdf

On 19th February 2010

White house document (2009) united states house committee on the judiciary . Retrieved

From

http://judiciary.house.gov/hearings/pdf/rexhibits.pd

On 23rd February 2010

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