New York court orders reinstatement of whistleblower

A New York State appellate court has ordered the New York City Department of Transportation to reinstate whistleblower John Tipaldo. When Tipaldo reported that his superiors violated bidding rules, we was demoted from his position as Acting Assistant Commissioner for Planning. That was in 1996. In 2006, the trial court granted the City summary judgment on grounds that Tipaldo had not made a formal report of the bidding violations to the "appointing authority." The appellate court reversed in 2008 holding that Tipaldo's report to the Department of Investigations was appropriate when the "appointing authority" was the person engaged in the violations. Tipaldo v. Lynn, 48 AD3d 361. The appellate court held that since there was no dispute about the retaliatory demotion, the case would be remanded only for a determination of damages and remedies. On the second appeal, the court held that Tipaldo was entitled to interest on his back pay, thereby increasing his award from $175,000 to $662,721. The appellate court awarded the interest even though the state's statute did not make any explicit provision for interest.  The state statute has "the goal of remediating adverse employment actions which, if allowed, would undermine an important public policy, that is, encouraging public employees to expose fraud, waste and other squandering of the public fisc." Tipaldo had hired an expert to compute the interest and the City did not. The court also held that Tipaldo was entitled to reinstatement even though he had declined promotions offered after his demotion. The court said that his corroborated fear of retaliation made his decisions reasonable so that he could still receive reinstatement as part of the court's order. It took Tipaldo 14 years, and two trips to the court of appeals to get justice.  This is an example of how public officials, when challenged by the integrity of a whistleblower, will waste unlimited public resources to delay justice. This might be a good time for New York's legislature to consider improving its whistleblower law to provide for general and punitive damages, interest, expert fees, attorney fees and jury trials. The case is Tipaldo v. Lynn,  Thank you to the New York Public Personnel Law blog for alerting me to this decision.

 

Harper's reports on yet another whistleblower prosecution

Harper's Magazine is publishing a report by Scott Horton on yet another prosecution for releasing information. Called "Obama's War on Whistleblowers," the article focuses on the prosecution of Steven Kim, a scholar of North Korea’s nuclear program. Since Kim did consulting work for the State Department, the prosecution contends he should not have spoken to Fox News about how the North Koreans were likely to react to proposed sanctions. Former prosecutor and Johns Hopkins professor Ruth Wedgwood told Horton that the Fox News report “contains completely unremarkable observations about what a country would do if it was sanctioned for its poor behavior. These kinds of observations were well known to anyone paying attention to public sources and ought not be the basis for making someone a federal felon.” Assistant Attorney General David Kris says the charges are a “warning to anyone who is entrusted with sensitive national security information and would consider compromising it.” Those who are following the prosecutions of Thomas Drake and Bradley Manning, and the failure to grant clemency to Brad Birkenfeld, may see a pattern. Horton notes that Obama, as a lawyer, represented a whistleblower.  As a candidate, Obama pledged to “strengthen whistleblower laws to protect federal workers who expose waste, fraud, and abuse of authority in government.” Horton complains that the prosecution of Kim will effectively "censor public debate about vital facts relating to international affairs and possibly to war. *** [W]e’re supposed to be kept ignorant while the national-security state cares for us all."

DOL issues new regulations for whistleblower cases

Today the Department of Labor has issued new regulations for whistleblower claims under four new laws. These laws include two laws included in the 2007 law that adopted recommendations of the 9/11 Commission, the National Transit Systems Security Act (NTSSA) and the Federal Railroad Safety Act (FRSA). This law also updated provisions of the Surface Transportation Assistance Act (STAA) which protects truck drivers, and DOL has announced new interim regulations on STAA whistleblower cases. Finally, DOL has issued new regulations for whistleblower claims under the 2008 Consumer Product Safety Improvement Act. The Occupational Safety and Health Administration (OSHA) issued the regulations, and will receive public comments until November 1, 2010. You can access all the rules through the Federal Register.

I have complained before to OSHA about rules that add hurdles for whistleblowers, and can derail a case away from being decided on the merits.  The one that irks me the most is the rule in 29 CFR 24.110 that requires parties appealing an judge's decision to the Administrative Review Board (ARB) to list in the petition for review every issue they will raise on appeal. This listing of issues is not required in appeals from federal court. The time to list all the issues is when the lawyer has finished reviewing the record to write the brief. If the ARB wants to assess from the petition whether the case is worthy of further review, then it is sufficient to require that an appellant list enough issues to justify review.  There is no reason to add that any issue omitted from the petition is waived -- other than to create a hurdle that can justify dismissing some issues or cases on grounds other than the merits.  That is a purpose contrary to the remedial purpose of protecting employees who put the public interest ahead of their own job security. Sadly, the new rules expand the requirement for detailed petitions for review, and the waiver of issues not raised.  See, for example, 29 CFR 1983.110(a) for CPSIA claims. Perhaps more significant, the new rules prevent the ARB from reversing an ALJ's factual findings whenever the ARB finds "substantial evidence" to support the ALJ's position. The Secretary of Labor used to conduct de novo review of the whole record, which provided better assurance that the DOL's final decisions reflected the remedial purpose of protecting whistleblowers.  The only reason for the narrower standard of review is to make the ARB's job easier. I think protecting whistleblowers is more important. I am also sad to see that the new rules require giving the DOL 15 days notice before a whistleblower files a lawsuit in U.S. District Court. The purpose of this rule is to give DOL a chance to issue a final order before the case goes to District Court.  That is contrary to the legislative purpose of giving whistleblowers a fresh bite at the apple if DOL has taken too long to decide a case.  While it is helpful to have rules for the many FRSA, NTSSA, STAA and CPSIA cases in the pipeline, these rules fall short of the change I was hoping for. The full OSHA statement about the interim rules follows in the continuation of this post.

 

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NWC Executive Director Appears on C-Span

Stephen M. Kohn, Executive Director of the

National Whistleblowers Center

, appeared on C-SPAN's Washington Journal. He talked about legislative efforts to protect congressional employees who report corruption, waste and other violations committed by Members of Congress. "Everyone loves a whistleblower until it is in your backyard," Kohn says."In reality, they really do help the backyard." Kohn explains how whistleblower protections for federal employees have lagged behind those of employees in the private sector.

 

 photocspansteve
 Click here to watch video of NWC Executive Director Stephen M. Kohn 

Katrina documentary in theaters for one-night only

Five years after Hurricane Katrina a new feature-length documentary “The Big Uneasy” is taking a look at the true cause of the disaster. Humorist and New Orleans resident Harry Shearer speaks to an Army Corp of Engineers whistleblower who reveals that “some of the same flawed methods responsible for the levee failure during Katrina are being used to rebuild the system expected to protect the new New Orleans from future peril.” Mr. Shearer has stated that his documentary showcases the negative consequences for those who had the courage to tell the truth. If you would like to take action to support federal employees at the Army Corp of Engineers and other federal agencies charged with protecting us please click here. 

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The documentary will be shown in theaters across the country for one-night only, Monday, August 30th. Please click here for a list of locations.

DOL's ARB announces two new members and new briefing policy

The U.S. Department of Labor's Administrative Review Board (ARB) has issued a letter announcing the appointment of two new judges, and a new policy on briefing schedules. The two new judges are Joanne Royce and Luis Corchado. Royce previously worked for the Government Accountability Project (GAP) and a House committee. Corchado was Assistant Director of the Litigation Section for the City and County of Denver, Colorado. Previously, he was with Davis, Graham & Stubbs, a corporate law firm. The ARB now consists of four judges appointed by Secretary of Labor Hilda Solis (Chair Paul Igasaki, vice Chair E. Cooper Brown, Royce and Corchado) and one judge retained from the prior administration (Wayne Beyer).

The new ARB will have its work cut out for it if it is committed to restoring whistleblower law to the remedial purpose of providing protection to encourage employees to come forward. It also has a task of reducing the backlog that can keep cases pending for up to four years.  During the stakeholders meeting in June, the Board announced a goal of reducing the backlog so that cases would not pend for longer than two years. The appointment of new judges should help in that goal. It has been years since the ARB was fully staffed. At the June stakeholders meeting, the ARB also floated the idea of restricting extensions of time to cases where a party shows "exceptional circumstances." This would be a departure from the past practice of allowing almost all requests for extensions of time. Even with a backlog of two years, it is hard to see how extension of a month or two will delay the ARB in getting to and deciding the present case. Lawyers for whistleblowers and respondents urged the ARB in June to allow extensions for "good cause" to encourage attorneys to provide representation in whistleblower matters. Stephen M. Kohn, Executive Director of the National Whistleblowers Center (NWC), emphasized the difficulty of meeting deadlines as short as 30 days, and urged the ARB to maintain the current practice. Such pleas were to no avail. The ARB's letter announces that effective October 1, 2010, "extensions of time ... will only be granted upon a showing of exceptional circumstances." Time will tell how severe such circumstances must be to qualify as "exceptional" in the eyes of this new ARB. To add to the difficulty lawyers will have in whistleblower cases, the ARB will also require them to file not only their briefs, but also an "appendix" with copies of all the parts of the record cited in the brief. The appendix practice adds to the expense and difficulty of federal court appeals, and now the ARB wants to move in that same direction. The advantage for the ARB is that they will not have to wait for, or wade through, the record sent by the Administrative Law Judge (ALJ). Yet the ARB will still require the ALJ to forward the entire official record of the case. Startin with ALJ decisions issued on or after October 1, 2010, the new rules will require that parties be informed that their initial brief and appendix will be due within 30 days of filing their petition for review. While these new rules will make it more difficult for whistleblower lawyers to present cases to the ARB, and make it more difficult for whistleblowers to get attorneys, hopefully the content of decisions from the new ARB will improve the status of the remedial purpose of whistleblower protection laws and make such cases worth pursuing.

Filipino whistleblower protection prompts more disclosures

Benigno AquinoThe new president of the Philippines, Benigno Aquino III (pictured), has granted security guarantees to a group of whistleblowers under the Witness Protection Program. Now those whistleblowers are disclosing more information about corruption under the prior administration. GMA News TV is reporting that the whistleblowers will disclose information about election rigging involving the prior president and certain military leaders. "We are more than willing (to expose more anomalies) because before, we were being suppressed. Now, we are free to talk," former Army technical sergeant Vidal Doble told GMA. Doble previously released a wiretapped conversation in June 2005 called "Hello, Garci." The recording portrays former President Gloria Macapagal-Arroyo discussing rigging election results with former Elections commissioner Virgilio Garcillano. Doble plans to name more names. Doble also reports that military officials told him to implicate only Samuel Ong, a former National Bureau of Investigation official who exposed the election scandal. He produced tape recordings implicating Macapagal-Arroyo in cheating to win her 2004 reelection. Ong died of lung cancer in May 2009. Corrupt military officials apparently wanted the deceased whistleblower to take the fall for the scandal. Jose Barredo Jr., another member of the whistleblower’s group, told GMA that he plans to disclose how funds for a seedling and fertilizer fund were diverted to Macapagal-Arroyo's campaign. Jueteng whistleblower Sandra Cam told GMA that her group applied for the Witness Protection Program because it trusts in the leadership of its present head, Secretary Leila de Lima. I reported here last March about the murder of jueteng whistleblower Wilfredo "Boy" Mayor. Jueteng is an illegal numbers game, and Mayor's testimony helped convict a political ally of Macapagal-Arroyo. These developments demonstrate the power of having whistleblower protections strong enough to convince whistleblowers that they will be safe in making their disclosures. The closer the issues are to national security, the stronger the protections need to be.

Remembering Beth Daley

Beth Daley

Beth Daley was a champion for environmental whistleblowers, and a passionate advocate for government oversight.  She is particularly remembered for her work holding oil companies accountable for their environmental compliance and honesty in government contracts. As a strategist for whistleblower legislation and media work, she was a worthy colleague in the coalition that seeks to make life better for whistleblowers. Beth worked for the Project On Government Oversight (POGO) for over a decade.

It is with sadness that we report Beth's untimely passing yesterday, after years of battling breast cancer.  Our hearts go out to Beth's husband and two young children, and to all our friends at POGO. They experience most sharply a loss that we all feel.

Stephen Kohn to appear on C-Span tomorrow at 8:30 am

NWC Executive Director, Stephen M. Kohn, will appear on C-Span’s Washington Journal tomorrow at 8:30 am EST. He will be discussing the stalled Congressional Whistleblower Protection Act showcased in a recent Politico article and other whistleblower issues.  Viewers will have the opportunity to ask questions via phone, email and Twitter.

Who are The Other Guys?

The initial premise of the new Will Farrell and Mark Wahlberg The Other Guysmovie is that when the real action hero cops (played by Dwayne "The Rock" Johnson and Samuel L. Jackson) fall flat, then the New York Police Unit will have to turn to "The Other Guys" to fight crime. The film is well cast to take advantage of the comedic opportunities of this premise. It is also well written to provide a deeper meaning for those who look for such things.

When our B-Team heroes get pulled off their corporate crime case for the third time, they get orders to turn over their evidence to the Securities and Exchange Commission (SEC). Will Farrell expresses his respect to the SEC investigator for all the corporate crooks his agency has caught, "except for Enron, Bernie Maddoff, Worldcom, . . .." The Other Guys takes on a whole new meaning. We idolize the cops who go after street criminals who smoke marijuana or steal, but when it comes to policing our economy to prevent a few from getting very rich by cheating, our government assigns "the other guys." I am reminded of all the times I had to tell victims of wage theft that there are no cops who will arrest their thieving bosses the way there are cops to book shoplifters. There is an irony about how we judge which crimes are serious enough to deserve our A-Team.

The final credits are worth sitting for those few extra minutes they take. Our filmmakers provide a few factoids about the role of corporate crime in our current economic downturn, about the disproportionate compensation of executives at the top of the corporate ladder, and about who got the biggest checks from those first government bail-outs.  These fact drive home another metaphor for "The Other Guys." Our society has produced a few super-rich, and then there are "the other guys" -- us. In this light, a few of the throw-away jokes earlier in the movie take on new meaning.  "To do well in school," Rob Riggle's and Damon Wayans, Jr.'s characters tell one class, "do your best not to be Black or Hispanic." It will be a good day when schools are funded sufficiently so this joke has no basis in fact. Oh, there is an outtake at the end of the credits, and I could see why it was taken out.

The final credits reveal that director Adam McKay had a cameo as "Dirty Mike." I also enjoyed seeing the union label and the seal of approval from the American Humane Society, so I could feel good about how all the people and animals were treated in making the film. If parents are trying to protect young children from anything that might be inappropriate, though, this is not a film for them. This is a good film for people who liked Trading Places or Blazing Sadles.

Let me suggest that anyone sensitive to extreme humor should go to the bathroom before seeing The Other Guys.  As we were walking out of the theater, I was still laughing so hard that I had to sit down to recover before I could make it to the bathroom.