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

Today Lindsey Williams and I spoke with the Executive Board of Local 689, Amalgamated Transit Union (ATU).Local 689 represents employees of Washington DC's Metro system. Lindsey is the Advocacy Director of the National Whistleblowers Center (NWC). We spoke about the National Transit System Security Act (NTSSA) of 2007, 6 USC §1142.

I have been looking forward to this opportunity for a long time. For too long, I have read local media stories about how Metro employees were too afraid of retaliation to raise concerns about safety. This can't be right, I thought.  There is a new law designed specifically to protect transit workers from retaliation.  It was a law that came out of a concern for the role that safe public transit plays in our national security.  Congress passed it as part of enacting the recommendations of the 9/11 Commission.

You can read the FAQ I prepared on NTSSA, together with my collection of web links, newspaper stories and blog posts. Everyone on the Board signed up for the NWC's Action Alerts. In our discussion, we noticed that NTSSA could be the sole remedy for transit workers who are fired during their probationary period for refusing to drive in unsafe conditions. Also, union grievances can be faster than the Department of Labor process. Still, it was obvious to all of us that workers' advocates need to know about all the tools in the belt to decide which ones might be best for any particular case. We agreed to continue talking about steward training to make sure that all Metro employees learn about their NTSSA rights when they face retaliation. I thank Jackie Jeter, President of Local 689, for the invitation to speak.

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Fair Game is a new feature movie about the Valerie Plame affair. Naomi Watts plays Valerie Plame. Sean Penn plays her husband, Ambassador Joe Wilson. I am having trouble containing how much I appreciate this movie, so let me start with the facts:
In the buildup for the Iraq War, the Bush Administration was eager to claim that Saddam Hussein was building nuclear weapons. At the time, Valerie Plame was an undercover operative for the Central Intelligence Agency (CIA) working on counterproliferation. She was running operations around the world to find reliable sources of information about the funding and development of weapons of mass destruction. She has developed a most sensitive source to get information from an Iraqi scientist. Her bosses ask her if she can get her husband to help them check out a claim that Saddam was buying yellow cake uranium from Niger – one of the poorest countries in the world. Plame's husband, former Ambassador Joe Wilson, knew the area and had contacts in Niger. He agrees to check it out. The amount of uranium at issue would have filled a convoy of trucks. It would have been noticed by everyone around and left a long paper trail. Wilson goes to Niger, visits his contacts, talks to the witnesses, and inspects the records. Nothing indicates any sale to Iraq. He makes his report. Then he is stunned to hear President Bush claim in the 2003 State of the Union Address that, "The British government has learned that Saddam Hussein recently sought significant quantities of uranium from Africa."
Joe Wilson (pictured with staff and interns of the National Whistleblowers Center) checks out whether President Bush could have been referring to any other African country other than Niger. He learns that the White House staff was relying on the same report that Wilson himself had checked out. He learns that the White House took out the claim from a speech President Bush gave in Cincinnati, but it popped back into the State of the Union Address. After the US invades Iraq, National Security Advisor Condoleezza Rice claims that if anyone in the government had reason to doubt the President's claim about Saddam's uranium, then it would have to be some staffer in the bowels of the CIA. Wilson knew this was wrong, and he felt compelled to call on his government to redress it.

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A "key logger" is a computer program that keeps a record of every keystroke someone types on a computer. Hackers can use key loggers to infiltrate a computer system, or to steal someone's identity. They might use a key logger as part of a computer virus, and once a computer is infected, the hacker can receive a report of every keystroke entered from that computer -- passwords, Social Security Numbers, content, anything.

Now, some employers are having key loggers installed on all their computers so they can monitor what their employees are doing. What better way is there to find out who the whistleblower is, and what that whistleblower is reporting? Don't think that just because you work for a small employer, you should be protected from such snooping. Key loggers can be installed by any employer who knows how to call a computer technician who can install it.

I recently learned about an employee who used an office computer to renew a vehicle registration. Six weeks later, that employee received a letter from the state bureau of motor vehicles. The letter informs the employee that the computer used for the registration "had been compromised with software that allowed capture of each keystroke." The letter goes on to explain how the key logger was detected by the United States Computer Emergency Readiness Team (US-CERT), and reported through the Multi-State Information Sharing and Analysis Center (MS-ISAC). So, do you want to know if your boss is using a key logger?  Wait for your official break time. Then, use your office computer to renew your vehicle registration. Allow six to eight weeks for delivery. Perhaps then you will receive a written finding from the government that your computer is infected with a key logger. Either way, it is not safe for employees to use office computers for any confidential communications.  I recommend against using the office computer to communicate with your lawyer, with law enforcement, or for any personal communication. The boss could find out about it.

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Lori Shemka began working for the 28th District Court in Southgate, Michigan, on January 1, 2009. She was later promoted to be a magistrate of the court. Soon, she began to raise concerns that Judge James Kandrevas was abusing his position. Shemka raised concerns that Kandrevas was comingling funds, making false representations to get state and federal grants, failing to pay overtime, and using court employees and resources for non-court business. Kandrevas fired Shemka on May 15, and Shemka sued.  During a three-day deposition of Kandrevas, the judge used the Fifth Amendment privilege against self-incrimination 222 times. The judge claimed a lack of memory in response to many other questions. Now, according to a report by the News Herald, the City of Southgate has decided to settle Shemka's whistleblower lawsuit. City Attorney Edward Zelenak told the paper that the city’s insurance carrier recommended that the case be settled as a cost-savings measure. The details have not been disclosed. The U.S. Justice Department is still investigating Shemka's allegations. Shemka tells us that the Michigan Judicial Tenure Commission is also investigating Kandrevas' conduct.

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Maria Aran is the chief of staff for the Miami district of the US Citizenship and Immigration Services (USCIS), a part of the Department of Homeland Security. When she discovered that a sub-office had mishandled hundreds of sensitive documents, she made a report for the agency's security office. When she sent that report, she inadvertently also sent it to 300 agency officials around the country. (Anyone else ever get surprised that an email was sent by "reply-all"?) Soon thereafter, Aran's bosses wanted to involuntarily transfer her to another agency. Aran complained to the Office of Special Counsel (OSC) which requested an emergency stay of the transfer.  The Merit System Protection Board (MSPB) granted that stay for 45 days. Andrew Becker of the Center for Investigative Reporting writes in today's Washington Post (p. B-3) that OSC is nearing the end of its 45-day investigative period. MSPB stays to protect whistleblowers were unheard of during the prior administration. While we appreciate this stay, we also long for President Obama to appoint a permanent Special Counsel who will have the support and staffing to seek more protections for whistleblowers.

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In Connick v. Myers, 461 U.S. 138 (1983), the Supreme Court held that the First Amendment's Free Speech Clause would protect public employees from retaliation only if the employee's speech touched on a matter of "public concern." That is, government officials were free to retaliate against employees for raising matters of private concern, but not for matters of public concern. Myself, I don't see this requirement when I read the First Amendment, but then I remember that the Constitution is a living document that can grow beyond the original intent of the Founders.

While much whistleblowing does raise matters of public concern, the Connick requirement remains on the books as a vehicle for hostile judges who want to steer a retaliation case over the cliff. Now the Third Circuit has pointed to a way around Connick:  the Petition Clause. Recall that the First Amendment prohibits legislators from abridging freedom of speech, or the right "to petition government for redress of grievances." This "Petition Clause" is concerned not so much with the content of what people say in their petitions, but rather with the process of assuring that all people are free to submit petitions for the redress of grievances.  This is the rule that prohibits government from punishing Oliver for asking for more gruel.

That is what Charles Guarnieri did when the Borough of Duryea, Pennsylvania, fired him as police chief.  Guarnieri filed a grievance under his union contract. The arbitrator found that the Borough Council had fired him in retaliation for refusing to speak to the Mayor on the Council's behalf, and ordered that he be reinstated with back pay. The Borough Council became upset and passed a set of ordinances that prohibited the police chief from working overtime, and made him personally liable for any overtime worked by the other officers. A federal court jury awarded him $45,358 in compensatory damages, and ordered the council members to pay $52,000 in punitive damages. The Third Circuit Court of Appeals affirmed the award of compensatory damages. The Court held that under the Petition Clause, there is no requirement that the petition relate to a matter of public concern.  The Court also held that punitive damages should not be awarded because the evidence did not show any animus greater than the animus of retaliation (concluding that such retaliation is not enough to show "reckless or callous indifference" to the federally protected rights of others). The Third Circuit also held that Guarnieri's attorneys should be paid for all the hours spent on this case.

Now the Borough has appealed to the U.S. Supreme Court. My hero, Eric Schnapper of the University of Washington School of Law in Seattle, has written an outstanding brief urging the Supreme Court to decline the case. I urge anyone who cares about free speech and the right of petition to read his brief. The case awaits the decision of the Supreme Court.

UPDATE: On October 12, 2010, the U.S. Supreme Court agreed to accept the appeal of the Borough of Duryea, Pennsylvania.

UPDATE: On March 22, 2011, the Supreme Court conducted oral argument in Borough of Duryea v. Guarnieri. Guarnieri's attorney, Eric Schnapper, brilliantly explained how the Petition Clause was clearly meant to cover petitions over private claims that involve no issues of public concern. From my read of the transcript, I foresee that the Supreme Court will reject the Borough's claim that the Petition Clause is governed by the same public concern requirement as the Free Speech Clause.

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New Mexico attorney A.J. Salazar used to be the director of the elections bureau for Secretary of State Mary Herrera.  He resigned earlier this year and publicly denounced the Secretary of State's office for accepting kick-backs on public contracts and having state employees perform campaign work.  Together with two other employees (who have since been fired), he reported his concerns to the Federal Bureau of Investigation (FBI). Herrara has denied the allegations, but has avoided opportunities to answer reporter's questions about them.

Last week, Salazar reported that his law office had been burglarized, records were missing, and his Blackberry telephone showed messages were forwarded to an unknown account. Salazar shares office space with attorney Rudy Martin in Espanola, New Mexico.  Martin represents the two whistleblowers who were recently fired. Salazar told KOB Eyewitness News 4 that he has back-up copies of all the documents about the Secretary of State's office, but he is concerned that the confidentiality of attorney-client communications has been breached. More information about the developing scandal is available from the New Mexico Independent.

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In June 2009, a Metrorail accident near Ft. Totten in Washington, DC, killed nine people. The National Transportation Safety Board (NTSB) issued a report this summer that found Metro lacked a "safety culture." Now an internal Metro report finds the same problem. Katherine Shaver wrote about the report for the Washington Post. While 60 percent of Metro employees witnessed a safety concern, 30 percent of them did not report it. Shaver says that fear of retaliation is cited as a reason.  Her article fails to mention the two federal laws that grant public transit employees legal protection when they raise safety concerns. These laws are the Federal Rail Safety Act (FRSA), 49 U.S.C. § 20109, and the National Transit System Security Act (NTSSA). Both are part of Public Law 110-53, the 9/11 Commission Act passed in 2007. See § 1413 (NTSSA) and § 1521 (FRSA). I have written about these laws before here, here, here and here. Later this month, I have an appointment to speak to officers of Local 689 of the Amalgamated Transit Union (ATU) about these legal protections. I feel like Glinda, the Good Witch of the North (from the Wizard of Oz), telling transit workers that they have had these legal protections for years.  They just need someone to tell them about these protections so they can feel more confident that they are protected from retaliation. If it won't be the Metro Board, Metro management, or the Washington Post, then it will be me.

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