THE WHISTLE-BLOWER FLAW

THERE'S A LAW THAT PROTECTS GOVERNMENT EMPLOYEES WHO REPORT WASTE AND ABUSE. USUALLY. WELL, SOMETIMES. ACTUALLY . . . ALMOST NEVER.

Camille Kimball has a brand-new dog named Clara. She got it about a week ago to keep her company and to watch the central Phoenix home she bought a few months back. It is her first pet. She wants to teach it some tricks, and worries about whether she'll be able to housebreak it before her hardwood floors are ruined forever.

Like any new homeowner, Kimball has a mental inventory of all the little changes she wants to make to her house: painting the bathroom, maybe, or getting some new curtains. Maintaining a home, she has found out, is more expensive than it might look at first glance, and money isn't something she has a lot of these days.

One thing she doesn't have to worry about is finding time for her house and dog. Kimball has plenty of that. She is on unpaid leave from her job as a producer of Horizon, a public-affairs show produced by KAET-TV, Channel 8, Arizona State University's public television station. She says she was practically forced to leave work after an office imbroglio improbably arose around the issue of sick time, personal telephone calls and a complaint she made to the U.S. Department of Labor.

She says the spat has cost her an income, a few friends, one or two handfuls of hair and significant lawyer fees. Maybe even the opportunity to find a new job.

Now, she jokes, she has "people." People who handle her legal affairs, her medical affairs and her personnel affairs. She and one of those people, Phoenix lawyer Jeff Arbetman, are trying to get her whistle-blower complaint removed from the ASU personnel system, which they say cannot judge the matter neutrally, and put before the state personnel board. The request for that transfer is being mulled over by a Maricopa County Superior Court judge.

In the meantime, Kimball is thinking about other things, things she has been finding out lately. Things others have already found out for themselves.

For one thing, she now understands, whistle-blowers take a big chance. People who try to do the right thing are not always rewarded, and people who want to do the wrong thing are not necessarily punished. Even in an age in which elected officials and their minions chant phrases like "total quality management" and "reinventing government" as if they were mantras, the world can be a tough place for do-gooders.

And because of the unwieldy, difficult-to-understand, almost-impossible-to-use nature of the state's whistle-blower law, would-be do-gooders have it tougher in Arizona than just about anywhere.

Ostensibly, whistle-blower laws are enacted to address a basic inequity in power. When a public employee sees a superior do something wrong--waste money, or steal, or improperly use authority--the worker might want to act like a solid citizen and report the problem. Superiors often don't like people they view as squealers, and they have the power to make workers miserable in countless ways--anything from moving the employee's desk away from a window to firing the person outright. Whistle-blower laws are supposed to make sure people who report wrongdoing don't have to worry about retaliation. In theory, then, whistle-blower laws are a vital check on governmental waste and corruption. And because of that theoretical function, they are politically popular. In one form or another, they are on the books in all 50 states.

In the 1992-93 fiscal year, though, Arizona State Personnel Board records show that only 11 whistle-blower-retaliation complaints were handled by that office. In 1993-94, the number fell to three. Those figures seem especially, oddly, small when compared to statistics from states with governments roughly the same size as Arizona's. In Colorado in those two fiscal years, 73 such actions were filed. In Washington state, there were 90.

Boosters of Arizona's whistle-blower law say that such low numbers show that the statute is doing its job--that the governmental agencies under the law's jurisdiction know better than to retaliate against employees who squeal. But critics of the law say the small number of actions is the best proof that the law fails to work as advertised.

A review of state whistle-blower cases suggests that the critics have reality on their side. The hypothetical case of Jane Doright shows why.

Imagine that Jane, a state employee, sees her manager put a state computer in his car and take it home. She knows that he is not authorized to take the computer. She is not sure whether he is stealing or merely borrowing. But Jane wants to do the right thing.

According to Arizona's whistle-blower law, to do good the right way, Jane must notify a "public body" of the wrongdoing. That isn't just anyone. The whistle-blower statute says a public body is one of the following, and no one else: the state attorney general; the legislature; the governor; a federal, state or local law enforcement agency; the county attorney; the governing board of a community college district or school district; the board of supervisors of a county; or the director of the agency at which the employee works. Immediate supervisors don't count unless they are agency directors. Neither do reporters or co-workers.

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