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Published: Tuesday, 11/7/2000

U.S. has 30 days to decide on whistleblower lawsuit

BY JAMES DREW
BLADE COLUMBUS BUREAU CHIEF

COLUMBUS - If the U.S. Department of Labor sides with Paul Jayko, a state environmental regulator seeking protection as a whistleblower, then the state may be forced to reinstate him as site coordinator of the leukemia investigation in Marion, O., and pay him $139,789.

But if the government does not take up Mr. Jayko's case, then Ohio will be shielded from the decision of administrative law Judge Thomas F. Phalen, Jr.

U.S. District Judge Edmund Sargus yesterday gave the Labor Department 30 days to decide whether to sue Ohio on behalf of the state environmental investigator.

Last month, Mr. Phalen ruled that Mr. Jayko was punished wrongly for his role in starting an investigation of leukemia cases at the River Valley schools complex near Marion.

The decision yesterday left attorneys waiting for the next step.

Mark Quinlivan, senior counsel for the Department of Justice, said the Labor Department has not decided whether to intervene.

The issue before Judge Sargus was whether the state of Ohio has constitutional protection - referred to as “sovereign immunity” - from Mr. Jayko's attempt to be reinstated to his job as site coordinator of the leukemia investigation and Mr. Phelan's order that the state pay Mr. Jayko $139,789.

The state attorney general's office said the state has immunity because Mr. Jayko sought damages as a private individual. A state's sovereign immunity does not bar a suit by the federal government to enforce a federal law, state attorneys said.

But Mr. Jayko's attorney, E. Dennis Muchnicki, said the state waived its sovereign immunity because it appealed a decision by the federal Occupational Safety and Health Administration.

Judge Sargus, appointed by President Clinton, said Mr. Phelan's decision cannot be enforced without action by the Department of Labor. As a result, federal officials must decide whether to take over Mr. Jayko's case within 30 days, Judge Sargus said.

The issue would be moot, however, if the state Environmental Protection Agency reinstated Mr. Jayko and paid him $45,000 in compensatory damages and $45,000 in punitive damages, Mr. Muchnicki said.

“The state could comply with the law for once. That's how it's supposed to be done. They're lawless,” he said.

Mr. Jayko filed a complaint in July, 1998, with OSHA, accusing the Ohio EPA of discriminating against him by removing him as site coordinator for the investigation at River Valley Schools.

The schools were built in 1962 on 78 acres the military used to burn or bury tons of highly toxic chemicals.

OSHA sided with Mr. Jayko, and the state appealed to an administrative law judge who hears Labor cases. Mr. Phelan on Oct. 2 ordered the state to reinstate Mr. Jayko as site coordinator and pay him $139,789.

The state appealed the decision to the Labor Department's Administrative Review Board and sued the federal government, claiming that sovereign immunity bars Mr. Jayko from pursuing his case.

Mike Griffith, a geologist and member of an activist group called Concerned River Valley Families, said he was disappointed with yesterday's decision by Judge Sargus.

“I would encourage the U.S. Department of Labor to get involved on Mr. Jayko's side because someone has to make the Ohio EPA do its job,” he said.



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