More Attorney General Hit Pieces and Rebuttals --- "Pinocchio pages" continued

SENATOR PETERRSEN'S LETTERHEAD

Date

Dear Colleagues,

I have further analyzed, and consulted with attorneys, on the statements AG Attorney Pat Cunningham made in opposition to my whistle-blower bill, SB1512, in the House Government Reform Committee on March 10, 2000.  It is now clear that Mr. Cunningham was mis-informed on further points, in addition to those I sent you earlier, and Mr. Cunningham has also attempted to dismiss some issues which are at the heart of real whistle-blower protection.  In order to clarify matters, I attach a summary of these additional points, and briefly respond to each of them.

 

Sincerely yours,

 

Senator David Petersen

Mis-information presented by AG Attorney Patrick Cunningham

 

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.

 

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.

 

 

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.

 

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.

 

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.

 

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."