Sunday, December 01, 2013

Why Whistle Blowers Can’t Beat City Hall

The short answer to the question “Why can’t whistle blowers beat city hall?” is – because the statutory, administrative and judicial cards are stacked against the whistle blower. The game is fixed, as usual in favor of those who forcefully wield power.

The purpose of the whistle blower statute is admirable and necessary. If you are a worker in a state or municipal agency and you discover in the course of your duties some sort of malfeasance, large or small, it is in the interest of the state that the problem should be reported to people who are authorized to correct the deficiency. If not you, then who? This is how operations seriously derailed are righted. It goes without saying that administrators in deficient agencies have a personal interest in quashing all whistle blower reports.


Nance McCauley, a Business Manager in the state's Criminal Justice Information System (CJIS), is but the latest whistle blower mouse to get caught in an elaborate Rube Goldberg mousetrap built by the General Assembly when it created the state’s whistle blower statute.

The chief problem with the statute is this: It throws a protective cover around whistle blowers and assigns the project of protecting them from expected recriminations to the state’s Attorney General who – amazing coincidence! -- is also charged by statute with representing the interests of state agencies when whistle blower complaints are lodged against them. This is tantamount to allowing the prosecutor in a case to serve as defense council for the accused. It is an intentionally fixed game – usually involving immense sums of money spent by judicially persecuted whistle blowers in a seemingly endless administrative process designed in such a way as to make the whistle blower collapse from exhaustion, if he or she is not first bankrupted in the process.

Ms. McCauley has now put her foot on the bottom step of an endless escalator. At the top of the escalator, her quivering and warm body will be fed into the Rube Goldberg quasi-judicial contraption from which she will emerge emotionally torn, much poorer and improperly chastened. As a preparation for the torturous and torturing ordeal that awaits her, she and her lawyers should read Franz Kafka tale, “In The Penal Colony,” the story of the exquisite torture inflicted upon a judicial victim by shadowy figures using “a remarkable piece of apparatus” that, slowly and remorselessly, tears into the accused’s skin and writes his sentence with a stylus into his flesh. Towards the end of the story, the remarkable apparatus goes kerflooey, butchering the accused, who never discovers the real basis of the accusations lodged against him. Needless to say, Kafka was a lawyer.

According to a story written by investigative reporter Jon Lender, Ms. McCauley’s initial whistle blower complaint to Attorney General George Jepsen concerning problems at CJIS was shared with the state auditors. The whistle blower complaint sparked an investigation that found serious deficiencies at CJIS. A project undertaken by CJIS to create an integrated information system, investigators found, was, according to Mr. Lender’s story, “behind schedule, potentially over-budget, and at risk of ‘failure.’"

Following the release of the investigators’ findings, Ms. McCauley, who initiated the whistle blower complaint leading to a “black eye” report that was no doubt embarrassing to CJIS administrators, “received a bad evaluation, lost part of a raise she should have received, and saw her responsibilities curtailed,” according to the Lender story.

In an Oct. 30 complaint to the state Commission on Human Rights and Opportunities (CHRO), Ms. McCauley wrote, “In issuing the negative evaluation; in failing and refusing to rescind that negative evaluation; in reducing my annual raise; in directing me not to attend public CJIS Governing Board meetings; and in other overt and subtle ways, Respondent has retaliated against me for exercising my statutory rights and for discharging my duty…to the taxpayers…in reporting what I believe to be mismanagement and misconduct."

Mrs. McCauley retained a lawyer, Andrew Houlding of the Hartford firm Rome McGuigan, to represent her interests after she had been unaccountably reprimanded, resulting in a rescinding of the reprimand. Michael Lawlor, Governor Dannel Malloy’s Under Secretary for Criminal Justice Policy and Planning and co-chairman of the CJIS Governing Board commented that an outside consultant had reported on August 15 that the agency should “significantly reorganize the [CJIS project] Team."

According to Mr. Lender’s story, Ms. McCauley told an investigator from Mr. Jensen’s office “about a problem between CJIS managers and state law enforcement personnel concerning the possible use of confidential FBI [Federal Bureau of Investigation] information in the system. Jepsen's office and the auditors cited this as an ‘ongoing issue’ in their written findings a few days ago.”

Mr. Lawlor, architect of the problem ridden Risk Reduction Earned Credit program (RREC)b strenuously denied the possibility of recriminatory activity on the part of CJIS administrators: "In the past six months there has been ongoing reorganization in the project affecting most of the senior managers, and we haven't retaliated against anyone." In Mr. Lawlor’s view, Ms. McCauley was simply an incidental casualty of a necessary reorganization.

The abiding and overriding question is this: Why didn’t Mr. Jepsen protect HIS whistle blower?

The troubling answer may be – he couldn’t. As attorney General, Jepsen is required to represent the interests of state agencies, which in the present case is CJIS. The legislature, in other words, has written a statute that CANNOT be enforced by the Attorney General, whom the legislature has appointed to enforce the unenforceable statute.

Sen. Tony Guglielmo, the ranking member of the Labor and Public Employees Committee, more than five years ago foresaw this problem and proposed a bill that would have moved “the entire Whistle blower Unit out of the Attorney General’s office and make it a freestanding entity. This would not involve any additional cost, as we would simply be moving the Whistle blower Unit from the authority of the AG’s office. The same personnel and cost would be involved.”

The main problem, Mr. Guglielmo wrote to a colleague in 2009, “is that there is an inherent conflict of interest in the current whistle blower program. As you know, the Attorney General’s office is responsible for defending the state agencies when legal action is brought against them. The Whistle blower Unit of the Attorney General’s office is the entity that pursues the whistle blower complaints against the same agency or agencies that the whistle blower is challenging. The perception to most whistle blowers and potential whistle blowers is that this is a tainted system. This perception alone inhibits the effectiveness of Connecticut’s whistle blower program.” 

“Unfortunately, Mr. Guglielmo said, the changes offered through the Labor Committee “were not moved forward for a vote.” 

Given the nature of the whistle blower bill, any whistle blower in any state agency who issues a complaint to the Attorney General under the state’s whistle blower law will be left swinging in the wind when the agency in question retaliates. And this is not the first time whistle blowing complainants have been left swinging from a noose by the Attorney General. The same questions concerning retaliation occurred under Mr. Jensen’s predecessor.
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