Troubles At The Big House

Senator Charles Grassley Goes After Dr. Zerhouni, NIH Chief

The Scientist reports in an article "Trouble Brewing At NIH Agency" on the continuing saga of the under siege NIEHS director David Shwarz:

More than 100 tenured and tenure-track scientists at the NIH's environmental agency say they no longer have confidence in the leadership of David Schwartz, embattled director of the National Institute of Environmental Health Sciences (NIEHS).

The vote of no confidence, cast during a secret ballot held from August 13 to August 20 at the request of NIEHS Assembly of Scientists members, follows a series of controversies at the agency, including its proposal to privatize and cut funding for Environmental Health Perspectives, the agency's open-access, peer-reviewed scientific journal, in September, 2005.

Senator Charles Grassley (R-IA), a ranking member of the Senate's Committee on Finance, has also accused Schwartz of mismanagement.

In a June 21 letter that cited several internal NIEHS Emails provided to the Finance Committee, Grassley detailed several allegations levied against Schwartz. The letter charged that Schwartz, a researcher and physician specializing in environmental lung care at Duke University prior to his NIEHS appointment, acted as an expert witness or a medical expert for two law firms involved in asbestos cases and obtained permission to partake of these activities from NIH officials.

In two more recent letters, Grassley asked for more information from Zerhouni regarding Schwartz's activities as NIEHS director. In a letter dated July 25, 2007, Grassley noted, again citing internal documents by anonymous NIEHS staffers, that Schwartz overshot the $1.82 million budget for his laboratory by more than $4 million in 2006. The letter alleged that Schwartz may have diverted funding from other NIEHS researchers to fund his own lab.

An August 20, 2007, letter from Grassley to Zerhouni requested information from the NIH chief regarding a form allegedly sent around to rank-and-file NIEHS employees which they must fill out to report Congressional inquiries. The form, in which employees are to list the name of the legislator and details of the specific time and date of the inquiry, is intended to "flush out whistleblowers," the letter charged.

According to an Email from Grassley's spokesperson, NIH has not provided a "complete response" to the allegations outlined in the two letters.

In response to an Email to Zerhouni requesting comment, an NIH spokesperson told The Scientist, "Most of the concerns that have been raised recently were identified and corrective actions were taken internally by the NIH Office of the Director prior to Congressional inquiries. Our conflict of interest policies, which were overhauled and strengthened in February 2005, are stringent and clear. All Directors must submit a signed affidavit that says they received them, understand them, and agree with them."

The senior NIEHS researcher interviewed by The Scientist said that ethical problems extend all the way to the top of the NIH hierarchy. "The things that Dr. Schwartz did, he got approval for," the researcher said.

Grassley's latest letter to Zerhouni has been made public. Clearly he is annoyed with Dr. Z.

During the course of my investigation of problems at NIH, I received a copy of a form that has been passed around recently to employees at NIEHS. This form asks employees to report if they have been contacted by Congress. However, this form looks more like something people in NIH congressional affairs would use to log requests for information from Congress. It doesn't appear to be something that would be handed out to regular NIEHS employees or employees at any of the other NIH institutes. In fact, handing this form out to rank and file NIEHS employees during the course of a congressional investigation could cause these employees to feel that management is attempting to flush out whistleblowers or any other individual assisting me with my inquiry.

Dr. Zerhouni, I co-authored the Whistleblower Protection Act of 1989 and helped to include whistleblower protections in Sarbanes-Oxley legislation. I did this because whistleblowers are some of the most patriotic people I know — men and women who labor, often anonymously, to let me know when the system is broken. So I'm a little confused about how passing out this form, during this congressional investigation, fits within your stated belief that the NIH is "committed to the letter and spirit of the federal whistleblower protection statutes."

Let me also say that there are many forms of retaliation and intimidation and during my years in Congress I have encountered quite a few forms of this behavior. As I am sure you know, requiring NIEHS employees to fill out the attached form places each employee who may be assisting the Committee in a precarious position. For example, an NIEHS employee working with the Committee could decide not to complete the form and not report their contact with the Committee, which could lead to them being charged with insubordination. On the other hand, an NIEHS employee working with the Committee could decide to fill out the form and report their contact with my Committee, and that would surely make them a target for retaliation if they had not earlier reported such contact.

Once again Dr. Zerhouni, I would like to remind you that attempts to interfere with a Congressional inquiry is against the law. I have attached a copy of 18 U.S.C. § 1505 to this letter for your reference.

That law states in pertinent part that:

Whoever corruptly, or by threats or force, or by any threatening letter or communication influences, obstructs, or impedes or endeavors to influence, obstruct, or impede the due and proper administration of the law under which any pending proceeding is being had before any department or agency of the United States, or the due and proper exercise of the power of inquiry under which any inquiry or investigation is being had by either House, or any committee of either House or any joint committee of the Congress-- Shall be fined under this title, imprisoned not more than 5 years or, if the offense involves nternational or domestic terrorism (as defined in section 2331), imprisoned not more than 8 years, or both.

NIH employees have the right to talk to Congress. Hopefully, the intent of this form was not to discourage or intimidate NIEHS employees from talking to Congress; but I must admit, the timing is curious.

To help me better understand why this form was handed out, I would like you to personally answer the following questions. Please respond to each question by first repeating the question, followed by the appropriate response. Please explain why this form was passed out to NIEHS employees during multiple, ongoing congressional investigations.

1. Did you personally approve the distribution of this form to NIEHS employees? If not, please identify who did.

2. Since June 2003, has this form been handed out to employees at other NIH institutes? If so, please provide dates and the corresponding institute, as well as the reason for handing out the form to NIH employees other than those in congressional affairs.

3. Please list each employee at NIEHS who received a copy of this form.

4. Dr. Zerhouni, why do you think that employees at the NIEHS feel more comfortable contacting my investigators instead of people in your office when there are problems at NIEHS?

5. Can you please describe the rationale for having this type of form at all?

I request your prompt attention to this matter and your continued cooperation. I also request that the response to this letter contain your personal signature.

Mr. B. suspects that there will be a new NIH director after the next election.

Ciao