Whistleblowers
By Jerry Kopel
Feb. 2, 2009
Once upon a time, there were two state employees, both whistleblowers.
One blew the whistle on the Dept. of Revenue in 1979. The other did the
same to the state's Health Care Policy and Financing Dept. in 2008. One
saved the state money, the other cost the state money. But both acted
courageously.
The state Court of Appeals tells one story:
"George Lanes was initially employed with
the Dept. of Revenue in early 1977. While so employed, he was
assigned to review that department's cash management practices...
" (that) review disclosed there were substantial delays (sometimes
several weeks) between the time the checks were received by the
department and the time they were deposited in a bank.
"As a result it was estimated that during 1977 alone, the state lost
in excess of one million dollars in interest which it would have
earned had Revenue made bank deposits in a timely fashion."
The companies involved continued to make
interest on uncashed checks sent to the department.
Lanes also found a similar situation in the Liquor Enforcement Division
of Revenue... "a pattern of late deposits for certain specified
taxpayers whose checks for substantial sums were customarily delayed in
being deposited."
Lanes made recommendations to correct these deficiencies. Revenue took
no action in response, instead claiming "Revenue was depositing all
funds received within a 24-hour period -- a representation which both
Lanes and later, the state auditor considered to be untrue."
By late 1979, Revenue had not made any changes. Lanes went to the press
without authorization by the state auditor (where he was by then
employed) and he wrote to legislators in February, 1980. He was fired
for violating auditor regulations.
According to a Denver Post article, "unable to find work in his
field, Lane survived by loading freight, sweeping streets and shoveling
snow. He and his wife divorced."
Lanes sued under the state Whistleblower Law, kept winning, and the
state kept appealing until the case was denied review by the state
Supreme Court. The state auditor reinstated Lanes, who won on collection
of back pay, annual leave, restoration of lost service credit, interest,
expunging his record, paying his non-attorney fee costs, partially in
1987 and in a subsequent 1990 decision.
In 1997, the statute was changed to permit the successful plaintiff
whistleblower to recover attorney fees.
** *
The second whistleblower discussed is more recent. Annmarie Maynard was
an accountant at the Dept. of Health Care Policy and Financing.
Maynard secretly taped a conversation in which she claims HCPF
executives told her how to make it more difficult for federal auditors
to discover that Colorado was overpaid $8 million from the federal
government out of a budget of $3.5 billion.
Secretly taping conversations in Colorado is NOT against the law unless
the person taping is an attorney who does not have the permission of the
person being taped or an agency has obtained legislative approval to
avoid such taping.
Unlike the Lanes case, Maynard did not proceed under CRS 24-50.5-103
(2):
"It shall be the obligation of an employee
who wishes to disclose information under the protection of this
(whistleblower) article to make a good faith effort to provide to
his supervisor or appointing authority or member of the general
assembly the information to be disclosed prior to the time of its
disclosure."
Apparently, instead of using that statute,
Maynard took the tape to Channel 9 in Denver. Maynard was fired and the
firing was over-ruled by a hearing officer of he Labor Dept. and a state
Personnel Board law judge. The hearing officer instead urged a possible
criminal investigation regarding any violation of state statutes by
those taped.
Meanwhile, the HCPF officials attempted to revise "policy" to forbid
secret taping of conversations. I think it would have had to be a rule
since it is contrary to the state position on taping. Since rules have
to go through a legislative vetting, the chances are good that the 2009
legislature would strike the revised rule and might even override a veto
by Gov. Bill Ritter.
The media loves whistleblowers. Ritter, I believe, recognized a
continuous story for months to come, and told HCPF head Joan Henneberry
to drop the change.
The HCPF is still appealing the ruling which forces the dept. to accept
Maynard back as an employee. If the bureaucracy treads the same path as
it did in the Lanes case, there will be lots more news stories.
In case you had forgotten, Linda Tripp secretly taped Monica Lewinsky's
conversations about President Bill Clinton by phone in Maryland, which
is one of a minority of states forbidding secret taping.
* **
Colorado has a whistleblower law for employees of companies that do
business with the state. I drafted and sponsored it, and eventually
added it to a bill carried by Rep. Pat Grant (R) Denver in 1988, with
his permission.
However my attempt at incentives, by having the whistleblower receive
five percent of any funds recovered, was removed. There is an incentive
provision for whistleblowers at the federal level ranging from a 15 to
30 percent of recovery to the whistleblower.
The statute is CRS 24-114-101 to 103. It has never been amended. I have
never read of it being used by any business employee. A financial
incentive for the whistleblower could help the legislature avoid waste
and fraud.
(Jerry Kopel served 22 years in the Colorado House.) |