Whistleblower Protection Blog : Whistleblower Lawyer & Attorney : National Whistleblower Legal Defense and Education Fund : Whistleblower Protection, Fraud Claims : Washington DC

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TRAINING SEMINAR
Thursday, April 1, 2010 12:00 - 2:00 pm EST

Sponsored by the National Whistleblowers Legal Defense & Education Fund

Lawyers & the Media: Strategies that Work and Pitfalls to Avoid in Whistleblower Cases
Whistleblowers who come forward to expose wrongdoing are critical sources for journalists. All attorneys who represent whistleblowers and journalists who use them as sources must understand the laws in place to protect whistleblowers when their story reaches the public. Attorneys also need to know how to effectively present their client's cases to journalists. This seminar will cover the 1st amendment protections that attorneys need to know to protect their clients, and journalists need to protect whistleblower sources

This training will take place on April 1, 2010 at the National Whistleblowers Center and via telephone conference

For a full description of the seminar and faculty information click here. To register for this seminar, click here.

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The independent journalism website, truthout.org, is reporting that the Senate is set to "hotline" the Whistleblower Protection Enhancement Act (WPEA), S. 372.  Hotlining is a procedure in which the Senate leaders agree that a bill is uncontroversial and they put the measure on the Senate floor to call for passage by unanimous consent.  If no Senator objects, then the measure passes the Senate.

That means it will only take one Senator to block unanimous consent and save current whistleblower rights from the poison pills contained in the Senate's current version of S. 372. These "poison pills" include repealing the current whistleblower protections for FBI employees, allowing the heads of intelligence agencies to fire whistleblowers with no due process at all, allowing intelligence agencies to conduct the fact findings in cases they do allow, and allowing for dismissal of whistleblower cases without a hearing. Follow this link for more information on S. 372. Follow this link to TAKE ACTION to call on your Senator to oppose S. 372 with the poison pills.

The full text of the truthout.org story follows in the continuation of this blog entry.

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Another Reason FBI Whistleblower Protections Should Not Be Weakened
 

The Washington Post and Associated Press are reporting that the Department of Justice failed to properly review more than 100 criminal cases that were prosecuted in the District of Columbia and which were suspected of being tainted by false forensic evidence from the FBI crime lab. These cases were ordered reviewed because in 1997 the DOJ Inspector General verified whistleblower allegations by Dr. Frederic Whitehurst about serious misconduct at the FBI lab.

Photo: Dr. Whitehurst

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The New Jersey Supreme Court heard arguments on Tuesday in a case where whistleblower Joyce Quinlan is asking for reinstatement of her $10 million jury verdict. An appellate court had vacated the verdict finding that Curtiss-Wright was justified in firing Quinlan for taking company documents for use in her litigation. The New Jersey Law Journal reports that the questions during oral argument suggest the state supreme court is likely to agree that whistleblowers cannot use company documents without the company's permission, even if those documents show that the company engaged in illegal discrimination. I hope the court's decision will make clear that:

• If the company permitted you to see the documents during work, then copying the documents is not theft if you leave the originals for the company.
• If the documents show the company engaged in illegal conduct, then it is against the public interest for the company to require employees to keep the documents secret.
• If a whistleblower sees documents while performing normal work duties and copies them for use in official government investigations or judicial proceedings, then making and using the copies is protected activity.
• If a company has a duty to provide documents in discovery and fails to do so, then the company should be punished and not the employee who caught them breaking the law.

If the New Jersey Supreme Court decides instead that company policies of confidentiality are more important than eliminating discrimination, then it will point to the need for a federal private sector whistleblower law that makes the scope of protected activity clear. The case is Quinlan v. Curtiss-Wright Corp., A-51-09 (64,728). The question presented is, "Was plaintiff’s removal of confidential documents from her employer for use in advancing plaintiff’s gender-discrimination lawsuit against the employer protected activity under the Conscientious Employee Protection Act?"
 

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The Village of North Syracuse, New York, has agreed to pay former police officer Michael Stassi $260,000 to settle his whistleblower retaliation lawsuit.  Stassi had to blow the whistle in 2005 on time card cheating by his superiors. Syracuse.com reports that former Sgt. Daniel Keefe plead guilty to having subordinates sign statements that Sgt. Keefe was working during times he was not working.  Former Capt. Michael Casey also plead guilty to official misconduct.  Former police chief David Wilkinson plead guilty to submitting false time sheets to North Syracuse, and a former employer.  The court ordered him to pay $3,760 in restitution. The news report does not detail what retaliation Stassi suffered, but thanks to the movie Serpico, one can easily imagine the hardships on a police officer who breaks the "code of silence." Stassi filed his retaliation case in 2008.  It was delayed after Wilkinson filed for bankruptcy protection. Now it is settled for a lot more than the fraudulent time sheets cost.  It is another example of how cover-ups can cost more than the initial crimes.  Retaliation claims can cost an employer a lot more than just addressing the issue a whistleblower raises.

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Today's Washington Post (Metro page B-1) reports on "a blunt assessment" of Washington DC's Metro transit administration.  Retired Metro manager David L. Gunn wrote the report.  Among other problems, it finds a "shoot the messenger" phenomenon "that discourages employees from raising safety concerns." The report is particularly sobering in light of last year's collision that killed nine people.  Metro has had other fatal accidents since then.

I know a fix for the "shoot the messenger" phenomenon. Any Metro manager, union official, or journalist could help.  One change could assure that safety issues are raised and addressed in the warm glow of pubic attention.  Every Metro train operator, bus driver, maintenance worker and manager needs to know that a recent federal law now protects them from retaliation when they raise safety concerns. 

Last October, I wrote here about how the Washington Post could report on the National Transit Systems Security Act of 2007 (NTSSA). NTSSA has given every transit system employee the right to put safety first, to bypass the chain of command, and to disobey unsafe or illegal orders. Under NTSSA, every Metro employee has legal protection if they choose to speak to a newspaper about safety concerns. They would be protected if they follow safety rules and run "late" as a result. Victims of retaliation need to know that they have only 180 days to file a complaint (some laws allow only 30 days).

I would be happy to speak to any group of Metro employees about their rights under NTSSA and how to enforce them.   Just call me, 202-342-6980, Ext. 112.

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Public health researcher Celeste Montorton (of George Washington University's School of Public Health) has posted an extensive commentary on the whistleblower issues raised during last week's OSHA Listens public hearing.  Through her The Pump Handle blog, she appreciates the criticism of OSHA's whistleblower program. She quotes from Jason Zuckerman's comment about how OSHA regional directors too often rubber stamp whatever the employer says. She quotes from my remarks about how OSHA has failed to address the management and oversight concerns raised in a report by the General Accounting Office.  She concludes, "Defending [whistleblowers] is OSHA’s core mission. There’s no reason this program this program should be treated like an orphan; it should be OSHA’s jewel—a treasured program at the heart of an effective worker health and safety protection system." Jason and I had some concrete suggestions for improving OSHA's whistleblower program, and Celeste offers some of her own. The floor is wide open now for policy makers at the Department of Labor to make some bold improvements in the whistleblower program.

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WBAL-TV of Baltimore reports that the Maryland legislature is moving forward with a bill to create a "Little FCA" in Maryland.  Modeled on the federal False Claims Act (FCA), and looking for the benefits of the Grassley Amendment, Little FCAs provide financial rewards to whistleblowers who file sealed complaints against fraud by government contractors. Under the Grassley Amendment, state and local governments with Little FCAs receive a higher percentage of the fraud recoveries in their states. The WBAL story reports that Virginia has recovered $228 million a year since adopting their Little FCA.

Who can say no to free money for the state treasury? WBAL reports that medical providers and the Chamber of Commerce have opposed the bill.  However, none would speak to WBAL.  What would they say? "We should be able to get away with fraud"? WBAL says critics have previously claimed that the reward provision would encourage frivolous lawsuit and put pressure on businesses to settle. The $228 million Virginia gets every year does not sound frivolous to me.  The pressure to settle, though, sounds pretty good. Indeed, the FCA's reward provision is the most effective tool ever in the detection and proof of frauds against the government.

The administration of Gov. Martin O'Malley said the bill is likely to be amended.  My suggestion: don't limit the bill to medical fraud. Maryland deserves to get the enhanced recovery for all frauds in the state.

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New MSPB case statistics have implications for pending whistleblower legislation.

Things just keep getting worse for federal employees and whistleblowers who challenge adverse actions taken by federal employers. Charlotte Yee recently posted on the Government Accountability Is A Citizen’s Responsibility blog the official Merit Systems Protection Board (MSPB) Fiscal Year 2008 (Oct. 2007 – Sept. 2008) statistics for all non-benefit cases decided by MSPB administrative judges. The results are, once again, astoundingly biased in favor of the federal employers.

The MSPB judges ruled in favor of employees a total of 1.7% of the time out of a total caseload of 4,698 cases nationwide.

In other words, if you are a federal employee and have a whistleblower reprisal claim or otherwise challenge serious discipline or a termination before the MSPB you have more than a 97% chance of losing your case (even after factoring in the cases that settle). 

Even though the MSPB continues to utterly fail to be a fair arbiter of federal employee cases, the Senate is proposing to give the MSPB more power to decide cases in favor of federal employers. In S. 372, the so-called Whistleblower Protection Enhancement Act, the Senate is giving the MSPB new summary judgment procedures (only in whistleblower cases). This will make it even more difficult for employees to prevail in whistleblower cases because unlike cases filed in federal court, the MSPB has very limited discovery tools available.   Summary judgment is a procedure that is available in court cases, under the Federal Rules of Civil Procedure. However, those federal rules for court cases also provided for broad discovery. Not so at the MSPB. If enacted, the new MSPB summary judgment procedures will result in a more efficient way for the MSPB to dispose of cases and rule against federal employees without holding a hearing. 

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