Jerry Kopel

Whistleblower 2007

By Jerry Kopel

Feb. 17, 2007

One never knows whether a good bill at the start will be weakened by subsequent amendments, but HB 1133 by Rep. Morgan Carroll (D) and Sen. Bob Hagedorn (D) is a good bill at the start, having passed the House 65 to 0.
HB 1133 prevents a health care provider from retaliation against health care workers for reporting unsafe patient practices, first reported to the provider and if unsuccessful, to the licensing authority. The bill applies to health care facilities, and the thousands of licensed, certified, registered or data entry health care providers.
This is a proper first step. Hopefully it can be expanded in future years by passing a state False Claims Act similar to the federal act. That act provides an incentive for whistle blowers when fraud occurs in government contracts with business. The whistle blower can receive a percentage of the funds recovered.
There are presently two state whistle blower acts. A third statute is mainly a free speech protection for speaking to governmental groups or governmental officials. One of the two whistle blower acts deals with state employees of government. The other deals with employees of companies or persons having contracts with government. Both forbid retaliation and provide restitution to the employee whistle blower. But there is no sharing in any proceeds recovered.
There are presently three state whistle blower acts. One deals with  employees of government (CRS 24-50.5-105), the second deals with free speech before governmental groups such as the legislature and the judiciary (CRS 8-2.5-101). HB 1133 refers to that statute for damages, etc.
The third statute deals with employees of companies or persons having contacts with government. All three provide for damages, attorney fees, court costs to the successful whistle blower, but there is no sharing of proceeds regained. 

The language dealing with persons  having contracts with government entitled "Private Enterprise Employee Protection" was my bill. It had no legs in the Republican legislature, but I attached it in 1988 to a measure  by Rep. Pat Grant (R) prohibiting '"state government competition with private enterprises". However I had to give up false claims sharing in order to keep the rest of the language.

The Grant bill prohibited a state agency using state funds to provide goods or services to the public for a fee in direct competition with private companies providing similar goods or services.
Citizens often mix up informants with whistle blowers. Informants usually bargain for immunity from prosecution or seek a reward for information provided. When possible, informants prefer anonymity.
Whistle blowers usually act through outrage and frustration after informing a superior of wrongful acts discovered and failure by the superior to act.
Consequences for whistle blowing is firing, demotion, family stress, and ultimately vindication, restitution, public approval, but lack of consequential employment elsewhere.
Just one example of how hard it is to be a whistle blower. It took George Lanes, an employee of the Dept., of Revenue assigned to review Revenue's cash management practices, ten years to be vindicated for whistle blowing on a pattern of late deposits in the Liquor Enforcement Division.
For certain specified taxpayers, their checks for substantial sums were customarily delayed in being deposited. Lanes recommended to superiors that they correct the practice. It did not happen. Lanes went to legislators in 1979 and to the newspapers. He was terminated from state employment in 1980.
Seven years later, the Court of Appeals ruled in his favor, pointing out that in 1977 alone, the delayed check deposits lost an estimated sum in excess of one million dollars in interest the state would have earned with timely deposits.
The court decision in his favor for lost wages and court costs was $450,000, plus the wasted money the state spent in opposing Lanes' appeal of his dismissal.
Putting a False Claims Act in place would make the state think twice before firing someone who provides accurate information on such check delays. It would also force private companies to avoid cheating the government, and health providers from hiding fraudulent or substandard care from the public and government.

* * *

At last we are getting somewhere, thanks to Lynn Bartels of the Rocky Mountain News (RMN). We now know two of the drafters of Amendment 41: Pete Maysmith and attorney Martha Tierney, both of Common Cause.
There should be a paper trail. Are early hand-written or typed or computer work-outs on the bill from start to finish available? Are there other drafters who have not yet been divulged?
Did the Common Cause Board of Directors accept the version offered or were there amendments made to it by the board? Do board minutes help explain some of the decisions?
Courts may not be persuaded by the intent of the drafters, but it can provide some insight. The RMN article quotes Ms. Tierney as stating she reviewed ethics language adopted in 10 other states. It would be helpful if one of those states had language similar to the "gift to state employees" language, so that we could find whether or not court decisions had been rendered, or legislative discussions held.
A good example of how "paper trails" work is the first Bill of Rights amendment to the U.S. Constitution. The paper trail begins with Article 16 of Virginia's constitution, drafted by James Madison who went on to become president of our country.
His language began "all men should enjoy the fullest tolerance in the exercise of religion according to the dictates of conscience."
"Tolerance" was a tepid word. Madison amended his effort to "all men are equally entitled to the full and free exercise of religion, according to the dictates of conscience."
For the U.S. Constitution, Madison wrote "The civil rights of none should be abridged on account of religious belief or worship, nor shall any national religion be established, nor shall the full and equal rights of conscience be in any manner or any pretext, infringed." Congress was not mentioned.
That was not acceptable to Congress, so Samuel Livermore, a judge and Episcopalian from New Hampshire amended it to:
"Congress shall make no law touching religion or infringing the right of conscience." It passed the House 34 to 20, but was held up in the Senate. A conference committee came up with the final language:
"Congress shall make no law respecting an establishment of religion or prohibiting the free exercise thereof". The "rights of  conscience" was left out and Madison's attempt to include more than Congress in the language was ignored.
That's a paper trail
(Jerry Kopel served 22 years in the Colorado House.)

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