Attorney General (and UA) Hit Piece and Rebuttal -- the "Pinocchio pages"

 

These statements, quoted here, were taken from the official tape recording of testimony in the House, in year 2000, just before one committee vote.  The statements and the rebuttals were distributed by Sen. Petersen as the "Pinocchio" pages, with an image of Pinocchio with a long nose, just before each lie.

 

Note that AG Attorney Patrick Cunningham was working under AG Janet Napolitano, and these were prepared remarks.

 

Misleading statements of AG Attorney Patrick Cunningham

 

 (1) AG ATTORNEY PAT CUNNINGHAM critiques bill language, stating:  I have spoken to one of the drafters of this bill and we proposed an amendment to Senator Petersen… The statute federally talks about some gross mismanagement and our statute just talks about mismanagement, a difference maybe only a lawyer can love, but its not really patterned after the federal act.  The  federal act lets you have reasonable attorney’s fees, this act lets you have attorney’s fees…. It’s not really patterned after the federal act, in our view.

 

MY RESPONSE:  This is directly misleading.  Mr. Pat Cunningham never presented any amendment to me.  In addition, in three meetings that his staff member attended in December 1999 and January 2000, not a single proposal was made  to offer improvements in the language of SB1512.

        This bill was, in large part, drafted by Attorney Tom Devine, Legal Director of the national Government Accountability Project (GAP).  Mr. Devine has participated in the drafting of federal whistle-blower provisions at the federal level for the last 20 years.  SB1512 closely tracks federal whistle-blower protection provisions.

        I have consulted with Attorney Tom Devine and Phoenix Attorney Tom Rogers, and they indicated that the differences between “gross mismanagement” and “mismanagement,” or the differences between “reasonable attorney’s fees” and “attorney’s fees,” are largely irrelevant, because SB1512 states “This article shall be interpreted wherever possible to be consistent with interpretation of the Federal Civil Service Reform Act …and the Federal Whistle-blower Protection Act.”  Thus, any minor differences in languages would be automatically bought into consistency with the case law developed in connection with the federal statutes. 

 

 (2) AG ATTORNEY PAT CUNNINGHAM states:  “This [bill SB1512] is way too broad…well, it is REALLY broad and allows people to come in and say, well, I just have an intuition or I just have a feeling… to simply help defend against their termination.

 

MY RESPONSE:  This is misleading.  An intuition or a feeling will not generate protection.   To claim protection from a negative personnel action, an employee must be able to demonstrate that he or she had sufficient evidence to form a reasonable belief that wrongdoing occurred, and then have previously reported it.  The burden is on the employee. 

In SB1512, it states “ ‘Reasonable belief’ means an objective standard that does not require the employee to prove the reported misconduct actually occurred but consists of sufficient information under the circumstances for the employee to conclude in good faith it is material, relevant evidence that the specified misconduct could have occurred.  A reasonable good faith belief exists per se if the information is based on the employee’s expertise and personal knowledge, is supported by the views of similarly situated employees or outside experts, resulting in government fact-finding proceedings or is the subject of independent analysis consistent with this definition.”  This definition is the well tested definition in federal law.

 

(3) AG ATTORNEY PAT CUNNINGHAM responds to a question:  Representative Wayne Gardner asks: Mr. Cunningham, in particular about the oral statements being too broad, how does that set with the federal statute? 

AG ATTORNEY PAT CUNNINGHAM responds:  I think the federal statue does allow oral but it is not as broad..

 

MY RESPONSE:  This is irresponsible.  Lawyers are aware that SB1512 closely tracks well tested federal language that offers protection from reprisal for oral disclosures of wrongdoing, and this language has been established for many years.

 (4) AG ATTORNEY PAT CUNNINGHAM stated: “This amendment or the amendments proposed in the bill makes it easier for employees to sue individual co-workers and supervisors and employing departments, agencies, boards and commissions.”

 

MY RESPONSE:  That is incorrect. The bill does not affect personal liability. Senate sponsors rejected proposals to expand that authority.

 

 (5) AG ATTORNEY PAT CUNNINGHAM stated: “[SB1512] Makes it easier to get to Superior Court. Makes it easier to make the conflict even more difficult and hard to get over as opposed to going through an administrative process where we might resolve these things.

 

MY RESPONSE:  Mr. Cunningham offers no basis in fact or respected theory that it is more likely to resolve litigation in administrative proceedings than in Superior Court.  Further, SB1512 facilitates the ideal setting for informal resolution by offering Alternate Disputes Resolution as an available forum.

 

 (6) AG ATTORNEY PAT CUNNINGHAM stated:  “[SB1512] talks about prohibited personnel actions and it gives coverage to people who are ABOUT to disclose some waste, fraud and corruption, something.  Not people who have disclosed, but are ABOUT to do it.  Well, Mr.Chairman, Members of the Committee, everybody we terminate is about to disclose corruption and fraud, and let me tell you, as soon as they see their plaintiff’s attorney, and there are some fine plaintiff’s attorneys sitting in the audience here, as soon as they see their plaintiff’s attorney, they’ll be exposing fraud, waste and corruption, you know, in writing and elsewhere, to simply help defend against their termination.  So, this is way too broad to have something that says “ is about to disclose or may disclose.”

 

MY RESPONSE:  The language in SB1512 gives the same scope of protection that is in every federal whistleblower law, either because of statutory language or precedents/case law. It is essential to deter and protect against "preemptive strikes" retaliation.

 

 (7) AG ATTORNEY PAT CUNNINGHAM stated: On the “reasonable belief” standard…“A reasonable belief” that the person is required to, or, that does not require the employee to prove reported misconduct. This talks about sufficient information under circumstances for an employee to conclude in good faith that there’s relevant evidence of the conduct.  In other words, you don’t really have to have evidence of the misconduct… It is REALLY BROADLY drafted.

 

MY RESPONSE:  This refers to the provision that an employee doesn't have to PROVE charges before being eligible for protection against reprisal.  This has been the state of federal precedent at the national Merit Systems Protection Board since 1980. Even if it were a fair burden to make whistleblowers prove their charges first as a prerequisite for protection (and it's not), the resulting time delays would make the law dysfunctional. It could take years for the retaliation proceedings to even start.

 

(8) AG ATTORNEY PAT CUNNINGHAM stated:  [SB1512] It expands the definition of adverse action. 

 

MY RESPONSE:  While SB1512 expands the current state law definition of adverse action, the definition of "adverse action" in SB1512 is identical to the scope of federal laws.

 

(9) AG ATTORNEY PAT CUNNINGHAM stated:  [SB1512] talks way beyond actual decision makers to people who might have the ability to recommend a decision.

 

MY RESPONSE:  The provision to cover "recommended" personnel actions is critical, and has been a cornerstone of federal law since the Civil Service Reform Act of 1978. It was created to close a loophole stopping enforcement of anti-patronage laws when "deciding" officials "didn't want to know" why they had received recommendations to hire or fire. The authoritative recommendation was the decisive action, and the formality of acting on it was a rubberstamp.  But the patronage violations were untouchable, because the law avoided accountability for "recommendations."

Misleading statements of UA Vice President Greg Fahey

 

(1) UA VICE PRESIDENT GREG FAHEY stated:  We are very collegial and democratic in working with the faculty and with the classified staff in devising the rules which we think best govern the university.

 

MY RESPONSE:  There was no “collegial and democratic” process with respect to the faculty at the University of Arizona on the whistle-blower issue.  The elected members of the UA Faculty Senate, in the Spring of 1999, voted to make major alterations in the President’s declared new whistle-blower policy at the UA. There has been no response from the UA administration.  The current policy was unilaterally put in place by UA President Peter Likins, by decree.  The changes sought by the elected faculty would have made the UA policy agree more closely with the commitments made by the three university presidents, in their letter to Rep. Jarrett, May 15, 1998, in exchange for her withdrawal of the 1998 whistle-blower bill, and somewhat closer to federal whistle-blower policy and the provisions of SB1512. In addition, there is no elected staff organization, they are appointed, and thus there is no “democratic” process with respect to the staff on any issue.

 

(2) UA VICE PRESIDENT GREG FAHEY states: I will say that there has been an allegation that we have not lived up to our word, and I know there has been some rhetoric about that, but I can only say that the analysis that was done of the U of A policy recently in saying that it does not live up to our word was not the U of A policy.

 

MY REPSONSE:  The letter I wrote to UA President Likins, asking why the UA policy did not live up to his word, was distributed to legislators. The policy I referred to in this letter is the one posted on the UA website (http://w3.arizona.edu/policy/whistle.shtml). It is incomprehensible that Mr. Fahey would claim that the whistle-blower policy on the UA website was not the real UA policy.

 

(3) UA VICE PRESIDENT GREG FAHEY stated:  We ask that this bill not pass, because we have, again, unique issues including the issue of faculty tenure which while this bill tries to address the non-granting of tenure through the whistle-blower process doesn’t really accomplish that.

 

MY RESPONSE:  In reality, UA Vice President Fahey, appointed by the Board of Regents to represent the Regents and all three universities, met with my informal whistle-blower committee three times, in December 1999 and January 2000.  At an early point, a method to deal with faculty tenure was devised and this is included in SB1512 (Section 38-533). Vice President Fahey, at that time, expressed no dissatisfaction with the proposed wording.

 

(4) UA VICE PRESIDENT GREG FAHEY stated:  At the U of A we have had four whistle blower complaints made in that time [1999].  We had one that was worked out pretty much in favor of the whistle blower.

 

MY RESPONSE:  In reality, the one whistle-blower in 1999 at the UA for whom “that was worked out pretty much in favor” has now received notice that the UA plans to terminate his appointment in 90 days. This is Glenn Johnson, Director of American Indian Graduate Center.  He came to testify in protest of the unsatisfactory UA whistle-blower hearing process at the Feb. 11, 2000 hearing on SB1512 in the Senate Government and Environmental Resources Committee, and received notice that the UA intended to terminate his appointment on March 6, 2000.

(5) UA VICE PRESIDENT GREG FAHEY stated: I would say that two years ago when there was another whistle blower bill moving through, the presidents of the three universities committed that if the bill be dropped we would fix the main issue which was then at stake, which was that instead of having the last court of appeal before going to court be the university president, which it was then, that all three universities would create a separate independent hearing officer so that you could still go to court if you were unhappy with the outcome, but that you could go beyond a university employee, the president.

 

MY RESPONSE:  Mr. Fahey’s sentence ignores most of the issues at stake in 1998, and focuses on one partly addressed issue. The major issues were elimination of the multiple loopholes in the weak Arizona whistle-blower law, including (1) protection of oral disclosure;  (2) allowing protection of whistle-blowers if their disclosure of waste, fraud or abuse was a CONTRIBUTING FACTOR to receipt of a reprisal;  (3) adding, as prohibited personnel practices, improper, unjustified, excessive or extraordinary investigations or evaluations, or failure to accommodate for health or disability needs; (4) avoiding expensive duplicative hearings that wear out a whistle-blower before a final decision can be obtained; and bringing the protections of the 17,000 university employees up to the levels available to other state employees, including  (5) adding the right of university employees to go to court for a trial on the facts, not just a trial on procedures; (6) having a hearing procedure beyond internal university decision making. 

 

Mr. Fahey’s words, addressing the  right of university employees to go to court, are especially misleading.  There is no provision on any campus to “go to court if you were unhappy with the outcome.”  The NAU policy makes absolutely no provision for going to court.  The NAU policy states: “AAA (American Arbitration Association) shall provide 2 copies of the hearing officer’s written report to the parties and to the university President….The President will order an appropriate remedy.”

ASU and UA policies are similar in that they allow judicial review only under Arizona Revised Statutes #12-901.  Thus ASU policy states “To pursue the case outside the university, complainant must file a legal action in Maricopa Superior Court …in accordance with Arizona Revised Statues #12-901, et seq.”  The UA policy states that “The hearing officer’s decision is subject to judicial review only under A.R.S. # 12-901.”   The type of judicial review under 12-901 is solely a review of the procedures used, and does not deal with any factual matters.  To “go to court if you are unhappy with the outcome” should mean that you can go to court for a trial de novo, on your complaint, a right available to all other state employees.  Other state employees can have an entire new hearing on the facts, if they are not satisfied with the outcome of their hearing before the State Personnel Board.

 (6) UA VICE PRESIDENT GREG FAHEY stated: We  kept our word.  We at each of the universities created this hearing officer step which has now been in effect for over a year at all three institutions.

 

MY RESPONSE: The universities did not keep their word. 

 

The promise (to the legislature in 1998):

"...regarding HB 2182, Whistle Blower Changes. As passed by the House, [the] bill would permit Arizona public university employees who allege to be whistle blowers harmed by retaliation the right to take their grievance to the State Personnel Board....we would like to offer an alternative...We understand the legislature's concern that employees of the universities be given the opportunity to appeal to a neutral party. Therefore we propose the following:"

"...upon receipt of a whistle-blower complaint from an employee...the complaint will be investigated ... if the complainant is dissatisfied after the university issues its final decision, he or she may file a request for a hearing.."

"... the hearing will be conducted by an independent hearing officer, external to the university, chosen by mutual agreement of the complainant and university...the hearing officer's decision shall be subject to further review only under A.R.S. Section 12-901."

 

The reality (from current university policies):

(1) The hearing officer is not chosen by mutual consent.  On each of the campuses, only hearing officers paid under a university contract are available for “choice by a whistle-blower.”  Such hearing officers, paid by one side, cannot be considered independent, nor unbiased.

 

(2)  The hearing officer at the ASU and NAU campuses is not at all equivalent to a hearing officer at the State Personnel Board.  A hearing officer at the State Personnel Board can recommend, and the State Personnel Board can award, re-instatement for terminated employees, restitution of back pay, restitution of back benefits, attorney fees, etc.  At ASU and NAU the hearing officer has minimal, limited authority.  At ASU there can only be “a decision by the hearing officer that the adverse personnel action was or was not based on a prior disclosure.”  At NAU, there will be “a decision by the hearing officer that the adverse personnel decision was or was not based on a prior disclosure…The President will order an appropriate remedy, based on the hearing officer’s decision.”