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Published: Friday, 1/5/2001

Toledo man claims whistleblower status

BY JAMES DREW
BLADE COLUMBUS BUREAU CHIEF

COLUMBUS - In another setback for the Ohio Environmental Protection Agency, the federal government has sided with a Toledo man who is fighting to get his assignment back investigating possible links between pollutants and leukemia in Marion.

In July, 1998, Paul Jayko filed a complaint with the federal Occupational Safety and Health Administration, accusing the state EPA of violating whistleblower laws by removing him as site coordinator at the River Valley Schools near Marion.

The schools were built in 1962 on 78 acres the military used to burn or bury tons of highly toxic chemicals. Graduates have higher than normal rates of leukemia.

A supervisor testified that high-ranking EPA officials disciplined and reassigned Mr. Jayko because they believed he was providing information to reporters. EPA officials have denied the accusation.

Since filing the complaint, Mr. Jayko has been locked in a legal battle with the state. He continues to work as a site coordinator in EPA's Bowling Green district office, but the state has fought an order to reinstate him to the Marion case.

Late Wednesday, the federal government filed papers in Washington, D.C., to intervene on behalf of Mr. Jayko, saying it agrees that the state broke seven whistleblower statutes by reassigning him.

The U.S. Labor Department took action after Mr. Jayko's attorneys filed a lawsuit asking a federal judge in Washington to order the government to side with Mr. Jayko.

“The Ohio EPA should be getting his desk ready so he's back on the job in Marion on Monday,” said E. Dennis Muchnicki, Mr. Jayko's attorney.

Mr. Jayko, 44, declined comment, but his supporters applauded the Labor Department's decision.

“This has renewed my faith that maybe the government will do the right thing on behalf of River Valley and Paul Jayko,” said Mike Griffith, a geologist and member of an activist group called Concerned River Valley Families.

“How many times does a man have to win? He is just trying to do the right thing,” Mr. Griffith added.

Heidi Griesmer, an Ohio EPA spokeswoman, said the agency didn't know if the Labor Department had intervened on behalf of Mr. Jayko.

Mr. Phalen ordered the state to reinstate Mr. Jayko as site coordinator of the Marion probe and pay him $139,789 in damages and lost wages.

At the request of the state EPA, the state Attorney General's office appealed Mr. Phalen's decision to the Labor Department's Administrative Review Board.

The state also sued the federal government, asserting that Ohio has constitutional protection - referred to as “sovereign immunity” - that bars Mr. Jayko from pursuing his case.

U.S. District Court Judge Edmund Sargus ruled in November that Mr. Jayko's case could advance if the Department of Labor intervened on Mr. Jayko's behalf. If the federal government did not intervene, sovereign immunity shielded the state from Mr. Phalen's order, Judge Sargus ruled.

One option for the state is to appeal Judge Sargus's ruling to a federal appeals court in Cincinnati. That decision has not been made yet, the Attorney General's office said.

The legal dispute could end up before the U.S. Supreme Court, said Michael Kohn, general counsel for the National Whistleblower Center, which has helped represent Mr. Jayko.

The next step is for the Labor Department's Administrative Review Board to hear the state's appeal of Mr. Phalen's decision.

Mr. Kohn said he will try to add the names of high-ranking EPA employees involved in the Jayko case to the complaint, to make them personally liable for punitive and compensatory damages.



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