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A federal ethics and personnel chief urged Tongass National Forest officials to destroy e-mails containing his advice on how to fire a Petersburg whistle-blower to preclude their discovery in a potential lawsuit.

"Your worksheet is releasable to the appellant when he files an appeal and the parties engage in discovery. That's why you should destroy your original worksheet and any attachment of it in e-mails. Make sure it does not exist," wrote Melvin Shibuya, a U.S. Forest Service ethics and personnel branch chief, to Tongass supervisor Forrest Cole in September 2007.

A lawsuit materialized in 2008. At least some Forest Service employees - including Cole - apparently did not do as Shibuya instructed, because the agency eventually released them this year to Marketa Ith, widow to Glen Ith, the fired whistle-blower.

Marketa Ith and the nonprofit Forest Service Employees for Environmental Ethics, or FSEEE, filed a Freedom of Information Act request seeking Glen Ith's personnel records. The Forest Service initially denied her request. Now it has released what it said are all the records in out-of-court negotiations.

Some of the new documents include Shibuya's "destroy after reading" e-mails. Ith and FSEEE now wonder if any employees did destroy documents, and they are asking the agency to certify in court that it has produced everything.

Glen Ith spent the last eight months of his life on administrative leave, while his supervisors worked out what to do about him. He died from cardiac arrest in March 2008 at the age of 48, four days after he learned his job was being eliminated in a Tongass-wide downsizing.

During the months in limbo, Marketa Ith watched her husband go to the post office in Petersburg each day hoping to find out about his job. She watched him keep up on the wildlife biology journals, and she watched him deteriorate from stress.

At the time, the independent U.S. Office of Special Counsel was investigating possible retaliation at his request. The case was closed upon his death. Marketa Ith wants resolution.

"It has to have some conclusion," she said. "That's what I feel. I do believe he was treated unfairly. I don't want anybody to go through what Glen had to go through."

Biting the hand that feeds

In 2004, Glen Ith, then a 25-year Forest Service wildlife biologist, began criticizing Tongass timber sales he had worked on. In 2006, he appealed two sales and joined FSEEE in a lawsuit against the Forest Service for illegally building roads for a timber sale that hadn't been approved. They won.

As he began the appeals, Forest Service officials internally suspected Ith was acting unethically. And they wanted him out of his current office.

Joy Thomas, a Tongass human resources manager, wrote in April 2006:

"Currently, the employee is working on a project similar to project he appealed. Individuals working with him do not trust him; their morale is low; and he has access to files for which he is the litigant. They would like to remove him from the district and remove his access from the server. ... This does not seem like any kind of retaliation to us, however, the employee could see this differently."

He was moved.

Supervisor Cole also wanted to formally reprimand Ith over his 2005 job performance. But Thomas and others, according to the e-mail, worried the timing would look like retaliation for the lawsuit.

"Is the Letter of Reprimand worth the risk?" Thomas asked the other officials.

It was never sent.

Ith was investigated for misconduct. The Forest Service put him on administrative leave in July 2007 and proposed firing him based on two charges.

First, Ith had sent a draft wildlife report to a Greenpeace member who used it to fight a timber sale; the Forest Service claimed it was an internal document. Second, Ith wrote a letter on the FSEEE Web site asking for funds to aid his own lawsuit against the Forest Service.

In one released document, Raymond Sheehan, an agency ethics official, advised that the first charge was indefensible because the report was publicly available. Ith had gotten that copy from an Alaska state agency. The second, he said, could be a breach of federal ethics rules prohibiting public employees from using their office for private gain.

In February 2008, the agency was still mulling over whether or not and how to fire the whistle-blower so that it wouldn't appear to be retaliation.

"The Whistleblower Protection Act does not protect an employee from the consequences of his misconduct," said Shibuya from his home in Albuquerque, N.M.

A final notice of termination was never sent. Instead, Ith lost his job to downsizing.

Forest Service: No retaliation

It's not clear why the Forest Service has now released the Ith files.

Tongass spokesman Phil Sammon said Thursday it is releasing them because Ith is dead. The Privacy Act only protects the personnel files of the living.

But Ith was dead when the agency denied the initial request, appeal and open records lawsuit. In denying those, the Forest Service claimed the documents fell under an open records exemption for deliberative documents.

FSEEE Executive Director Andy Stahl wanted the court to force the Forest Service to give up the documents: They weren't privileged because they were created in the commission of a crime, retaliation against a whistleblower. He implicated a "cast of dozens" from Washington to the Tongass, engaged in finding reasons to fire Ith.

But the court did not force the agency; the agency gave up the papers.

The agency denies Stahl's claim that its release of documents is a tacit admission of guilt.

And Sammon said this case is about FOIA, not retaliation, anyway.

"We're not conceding anything. We're not admitting anything," Sammon said.

Destroy this e-mail

Shibuya sent Cole an edit of a draft decision to fire Ith in September 2007. He had taken out some parts because they weren't legally defensible, and condensed others.

"It is very dangerous to put stuff like this in," he wrote of one cut section, noting it included claims about Ith that he hadn't had a chance to rebut.

At the end of the message, he directed Cole to destroy his e-mail.

The U.S. Department of Agriculture's policy on document retention from that year directs employees to save substantive e-mails. These include e-mails that show how decisions and policies are formulated, what happened at meetings, officials' actions, and "key substantive comments on a draft action memorandum."

Asked whether it was acceptable for Forest Service officials to direct their coworkers to destroy e-mails, Sammon said, "Some of these questions fall to the very essence of FOIA, and what is a record ... At the time it was sent, is an e-mail considered an official document? Some people will argue that it is."

Shibuya said Friday he was right to tell others to destroy the e-mails. He said he was ignorant of the specific records regulations governing which e-mails to keep.

"Federal employees delete e-mails all the time," he said.

• Contact reporter Kate Golden at 523-2276 or kate.golden@juneauempire.com.