Committing the Truth

After years of retaliation because she was a whistleblower, a leading Alzheimer's researcher can vouch for how poorly Arizona law protects university employees who report waste or fraud

Bernstein, a professor of microbiology and immunology at UofA, didn't know much about whistleblower laws, nor did she care much about them. In 1997, though, she began hearing some of the horror stories from around the state.

One of the worst, she says, was the case of Marguerite Kay.

"There was so much frustration with the way things are," Bernstein said. "And when you start looking at the way things are, you realize how badly things need to be changed."

Marguerite Kay says she has been blacklisted within the scientific community by UofA administrators. She says she hopes to have her name cleared so she can leave the university and again pursue her research of Alzheimer's disease.
Marguerite Kay says she has been blacklisted within the scientific community by UofA administrators. She says she hopes to have her name cleared so she can leave the university and again pursue her research of Alzheimer's disease.

In 1998, Bernstein helped construct a bill bringing university policy into line with state policy for whistleblowers.

But the bill was withdrawn when the three university presidents promised legislators they would close one of the many loopholes that made university policy inconsistent with state policy. They would allow an outside arbitrator to hear whistleblower cases.

(Bernstein and other bill supporters say the universities have failed to meet their promises.)

As Bernstein was pursuing her cause, state employees were coming to legislators to complain that their whistleblowers weren't protected, either. Legislators such as Petersen began to listen.

Petersen approached Tom Rogers, an attorney and former chief counsel in the Arizona attorney general's office, about crafting a bill that would close loopholes in the state's whistleblower law. Rogers had defended administrations against bogus whistleblowers, and he had represented genuine whistleblowers against administrations.

"I've been on both sides of this fence," Rogers says.

Reform supporters, particularly Bernstein, also approached the Government Accountability Project. If anyone knew how to craft fair whistleblower legislation, Petersen says, it would be Tom Devine and GAP, which has formed, tested and honed the federal legislation for more than 20 years.

Indeed, Devine has reviewed more than 2,000 whistleblower cases nationally in the last two decades. Congress first codified whistleblower status in 1978, but both the House and Senate voted unanimously in 1989 and 1994 to improve existing laws with revisions written by Devine.

"About one-fourth of all the cases I've seen appear to be genuine," Devine says. "And that's about the percentage you see winning on merits at the federal level. What that tells me is this: In determining between false claims and real claims, our federal whistleblower laws are pretty accurately revealing reality."

So Divine and Rogers worked on the Arizona Whistleblower Protection Act, matching it with federal levels of protection while fitting it with Arizona state laws and institutions. They figured they had a bill everyone could accept.

"Boy, were we wrong," Devine says.

Powerful institutional lobbies lined up against the bill: the universities, the attorney general's office, numerous state administrators and the governor. They argued that the legislation opened numerous windows for malicious and unfounded claims that could cripple government and cost taxpayers millions.

University administrators claimed they had kept their 1998 promise that campus whistleblowers could have an independent hearing officer. In fact, hearing officers are under contract and paid by the administration.

Administrators also said that, as they promised in 1998, hearing officers can make final decisions on whistleblower complaints. However, the policies at Northern Arizona and ASU state that hearing officers can only advise the campus president.

"None of their claims have played out in reality with this type of legislation," Devine says. "But that didn't seem to matter."

Rogers, the former chief counsel for the attorney general, says he knows why Arizona's administrators are so frightened of the Whistleblower Protection Act. He's felt that fear, too.

"They're afraid of the Whistleblower from Hell," Rogers says. "Every administrator has suffered through one. The charges are ludicrous, the charges keep shifting, and you end up tied up in hearings when you should be running your agency.

"There are horror stories on both sides of this issue," he says. "The problem: This legislation is designed [for] and has been proven effective in weeding out horror stories on both sides of the issue."

Specifically, among other things, the new legislation would ensure judicial standards of due process, allow verbal disclosures of misconduct, widen the definition of what is considered a reprisal, protect against gag orders, allow judicial levels of attorney representation and subpoena powers and allow for greater awards for employees who were retaliated against.

University lobbyist Greg Fahey argued that the legislation "absurdly grants whistleblower protection to an employee who is about to disclose information."

Supporters respond, "Fahey dismisses as 'absurd' the First Amendment protection against prior restraint. It is necessary to guard against preemptive strikes or gag orders that would silence whistleblowers in advance of disclosures." The provision, supporters point out, exists in 12 federal laws that have "proven the test of time."

Detractors dislike language that allows employees to claim their statements were a "contributing factor" in their discipline or dismissal, rather than "the primary cause." This, Fahey said, muddies the water "in favor of groundless claims and endless litigation."

Devine says that reducing the burden of proof "to reasonable levels" is at the heart of the reform. "This is the standard that gives employees a realistic chance to defend themselves when they assert their rights."

Devine, Rogers, Bernstein and the legislators supporting them boil the argument down to one key point: Arizona's legislation is modeled after federal law by the people who made the federal law, which has been tested, reviewed and refined for more than 20 years to a point where both Republicans and Democrats in both the House and Senate supported it unanimously.

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