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The City of Chicago Ethics Task Force released a report today that recommends that the City strengthen protections for whistleblowers.  Mayor Rahm Emanuel appointed the Task Force to improve the City's notorious record on ethics. Cindy Canary of the Illinois Campaign for Political Reform chairs the Task Force.

On page 29, Recommendation 16 notes that the City's Ethics Ordinance does not include "a generally applicable whistleblower provision." It notes that Chicago does have a more general whistleblower protection at 2‐152‐171(b)(1)‐(2), and the Task Force recommends that this ordinance be moved to the Ethics Ordinance. Merely moving the whistleblower provision, however, will not strengthen it.  The Task Force cites a 2009 survey by the Ethics Resource Center that found that 60% of City employees did not report misconduct out of fear of retaliation. The Task Force asked the City to publicize its whistleblower protection.

I can also suggest that the City's ordinance expand the scope of protected activity to include any lawful act taken to raise a concern about misconduct, and any refusal to comply with an order to engage in misconduct. The City's current whistleblower protection only protects disclosures to government agencies. Effective whistleblower remedies will include awards of compensatory damages, exemplary damages, attorneys fees and costs, and injunctive relief including reinstatement, expungement and posting.

Recommendation 15 could also become a concern for whistleblowers.  The Task Force wants the City Council to require that all employees report all misconduct they observe. This type of requirement can be used by managers to punish whistleblowers.  They could say that the employee did not report the misconduct fast enough, or through the right channels. If the City Council considers this recommendation, it should be mindful that the better policy will always leave every door open to those who want to raise their concerns.

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Yesterday, the Missouri House of Representatives passed a bill called the "Whistleblower's Protection Act," H.B. 2099. This bill is actually an attempt to weaken the protections Missouri courts already afford to whistleblowers.  Like courts in most states, Missouri courts recognize a common law tort claim for employees discharged in violation of a clear public policy. See Entwistle v. Missouri Youth Soccer Association, Inc., 259 S.W.3d 558, (Mo.2008). The Republican controlled legislature passed a similar bill earlier in the year, but Democratic Governor Jay Nixon vetoed it.  According to an Associated Press (AP) story, the present bill is slightly less severe than the prior bill. 

Still, H.B.2099 would limit punitive damages, exempt governmental agencies, and prohibit courts from expanding protections under the common law. The bill's definition of a "protected person" does not make clear that employees would be protected if they raise a concern based on a reasonable belief of a violation.  Courts might require employees to actually prove the violation to receive any protection. The bill also fails to specify a protection for those employees who raise concerns based on health, safety and environmental issues. The bill offers no assurance that employees could reach the courthouse if their employer uses forced arbitration agreements. The bill makes no provision for awards of attorneys fees, litigation costs and expert witness fees.

The bill's sponsor, Rep. Kevin Elmer, told the AP that his bill would provide clarity for businesses. He tacitly concedes that his bill does more than clarify existing law. "We're trying to balance the rights of individuals and the right to earn a living," said Elmer. Any "balancing" that wants to protect the public from frauds and dangers would make sure that all whistleblowers are fully protected. It remains to be seen if the bill can pass the Missouri Senate, and override an expected veto. We could also advance the cause of "clarifying" whistleblower protections for businesses by having the federal Congress pass a gold standard whistleblower protection for all employees.

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This Monday, April 16, 2012, NWC Director of Advocacy & Development Lindsey Williams will testify before the New York City Council in support of strengthening whistleblower protections included in proposed legislation, including the local False Claims Act. The hearing will commence at 10:00am in the 16th Floor Committee Room, 250 Broadway, New York, NY.

The City Council will broadcast a live webcast of the hearing.

New York is one of the few cities that has passed its own local False Claims Act in addition to state and federal versions of the law.  The local law is up now up for reauthorization, with proposed amendments that would update the definition of an “original source” and also increase the whistleblower’s share of the recovery.

In addition, Council Member Dan Garodnick has sponsored two bills that expand whistleblower rights. His first bill extends whistleblower protection to employees of city contractors, and his second bill requires city contractors to post information about whistleblower protections included in the local, state, and federal False Claims Acts.

Council Member Gardodnick will discuss the bills and the hearing in more detail during an interview on Honesty Without Fear, live this Tuesday, April 17, 2012, at 1:00pm.

We’ll post a round-up of the hearing here on on the Whistleblower Protection Blog, so stay tuned.

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