Attorneys Say N.D. Whistleblowers Have to Protect Themselves

January 11, 2008

North Dakota’s whistleblower law, intended to prevent retaliation against employees who report alleged wrongdoing in the workplace, instead puts the burden on workers to protect themselves, lawyers say.

“These laws are intended to encourage public employees to report violations of the law or the misuse of public resources, so corrective action can be taken,” says a summary of the law provided by Attorney General Wayne Stenehjem.

“However, the statutes do not provide the attorney general or a state’s attorney the authority to take that corrective action,” the summary says. “Rather, the corrective action … is to come from the state agency affected by the reported violation.”

Workers who are demoted or fired for reporting alleged wrongdoing may have to hire personal attorneys to assert their rights under the whistleblower law, lawyers say.

The issue has gained prominence because of turmoil at North Dakota’s Workforce Safety and Insurance agency, where at least five employees have requested whistleblower protection or hinted they would do so.

The requests came after Sandy Blunt, WSI’s former chief executive officer, returned to work in late October after spending six months on leave because of felony charges that were eventually dismissed.

One worker, Todd Flanagan, a fraud investigator, was fired after he requested protection. His attorney, Michael Geiermann, did not respond Wednesday to messages requesting comment.

Stenehjem has asked the Highway Patrol to investigate allegations that Workforce Safety officials violated the whistleblower law by firing Flanagan and suspending another employee, James Long, the agency’s chief of support services.

Long was put on leave with pay Nov. 15, and has since asked to be reinstated, without result. After Stenehjem referred the matter to the Highway Patrol, John Halvorson, WSI’s interim chief executive officer, told employees they were not obliged to cooperate with the investigation.

North Dakota law forbids reprisals against public employees for reporting suspected legal violations or misuse of taxpayer resources. Violating it is a misdemeanor, punishable by a maximum of 30 days in jail and a $1,000 fine.

It bars agency administrators from firing, reassigning or withholding benefits from an employee who makes a report to the attorney general, a state’s attorney, a labor union or employee organization, or his or her agency’s top administrator.

However, if an employee is punished anyway, the worker is responsible for seeking reinstatement or money damages.

Tom Tuntland, a Mandan attorney who is representing Long, said Stenehjem’s interpretation also could shield an agency official from criminal prosecution. The attorney general’s summary says an employee report of possible wrongdoing “must be made in good faith” to protect the worker against retaliation.

The “good faith” requirement is not part of the law, Tuntland said Wednesday in an interview. An employee who makes a report may be disciplined only if he or she deliberately relays false information, Tuntland said.

In a letter to Stenehjem, Tuntland gave an example of a bad-faith whistleblower report that he believes would preclude any retaliation: a public employee disclosing that his supervisor was stealing two paper clips from the agency each day.

“The employee is immune from retaliation if the supervisor has, in fact, been purloining those paper clips,” Tuntland wrote. “It doesn’t matter that the supervisor’s minimal ‘wrongdoing’ warrants no investigation or discipline. If the report is true, then the employee’s motive for making the report is not relevant.”

Stenehjem’s “good faith” interpretation gives WSI supervisors a new way to shield themselves from criminal prosecution for possible whistleblower-law violations, Tuntland said. Determining whether an employee’s report is in good faith is subjective and much easier to demonstrate than proving a worker deliberately gave false information, he said.

“Your memo may have inadvertently stripped the whistleblowers who sought your protection of a significant amount of the protection the law intended to provide,” Tuntland’s letter said.

Stenehjem said he was reviewing the letter and declined immediate comment.

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