THE WHISTLE-BLOWER FLAW
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.
Assuming Jane is lucky enough to bring the incident to the attention of the right public official, she must include, among other things, her name. If she makes an anonymous disclosure and her supervisor finds out the letter came from her, he can do anything he wants in terms of retaliation. She will have no legal protection as a whistle-blower.
If Jane notifies the right people in the correct way, and her supervisor retaliates against her--demotes her, perhaps, or simply makes her work environment inhospitable, hoping she will quit--she has ten days to file her complaint as an aggrieved whistle-blower. If she waits longer than that, she is not eligible for protection under the law. By the time Jane figures out what's happening and picks up the phone to ask someone what to do, it may already be too late.
Incredibly, only after Jane has filed a claim that Arizona's whistle-blower law has been violated is the state required to provide her with a copy of that law. And only if she asks for it.
If Jane complains of retaliation in time, her case will go before a personnel or grievance board. By law, she must receive a letter from the board acknowledging her complaint.
And included in that letter is the cheery news that if the state proves that she has lied in her complaint, she could have to pay $25,000 and lose her job.
Finally, if Jane perseveres, she still must prove to a hearing officer that her supervisor not only improperly took the computer home, but that he retaliated against her for telling somebody about it.
In 1992-93, only one person in Arizona managed to pull off that difficult trick. In 1993-94, the latest year for which statistics are available, no one did.
Camille Kimball had knocked around the local radio-news scene for a few years before she began working at KAET in January 1989. She had been a producer, mostly, but also had on-air experience; she seemed to be exactly the kind of employee Channel 8 was looking for. For the first 17 months of her employment, things went great. She received three glowing performance evaluations from her superiors.
The trouble started in late summer of 1990. There had been a backlog of reporting projects at Horizon for some time, and the whole staff had been putting in a lot of overtime. Kimball says she and others on the staff were told that their overtime hours would be made up later, probably with vacation time, but they never were. She says that when her inquiries about overtime became more insistent, her relationship with her employers soured.
Kimball had been hosting the show now and then. She liked the exposure hosting afforded her, and she also liked the "talent fee"--that is, extra money paid to her for appearing on-air. After her complaints about overtime, that duty was taken from her. She also received her first bad performance evaluation at about the same time.
"I couldn't believe it was happening," she says. "I had never gotten in trouble before. When I was in school, I never was sent to the principal's office. I had always done well. Now they were telling me that I was not a team player."
Kimball was also disciplined for tardiness (she insists that guidelines about when employees at Channel 8 were required to be in the office were always lax) and for inappropriate use of office telephones for personal calls. After being "shut out" in her efforts to smooth things over with management, she says, she filed a grievance against KAET in October 1990.
After the ASU Grievance Committee looked into the matter and recommended that it be resolved in-house, Kimball says, she and her supervisors enjoyed a year and a half of harmony. The "disciplinary activities" she had been subjected to evaporated, her on-air hosting duties were restored (along with the extra money for them) and her performance evaluations again turned positive. The subject of overtime and vacation time arose again in the winter of 1993, and was still a sore spot with management. Kimball says she was out sick with the flu twice. While she was gone, her projects were not reassigned by her supervisors, and upon returning to work, Kimball found herself facing a backlog of work and no additional time to perform it.
In February 1994, Kimball turned in a memo claiming time off she felt she had earned for her extra work; her claim was denied. She objected, and told a higher-up at the station that she was considering making a complaint to the U.S. Department of Labor.
Within hours, she says, she received a memo saying she was to be formally disciplined and that she was again being removed from her on-air duties. There would be no friendly patch-up this time. Kimball continued working at the station, as things grew more and more tense, for more than a year. Finally, she went on a voluntary, unpaid leave in May of this year. She also filed her whistle-blower complaint, alleging that she was retaliated against for disclosing mismanagement and abuse of authority on the part of KAET higher-ups. (KAET says Kimball was disciplined for violating station work policies and lowering office morale.)
Ironically, when she complained to the Department of Labor, Kimball got lucky. Although she did not know it at the time, the Labor department is, legally speaking, a federal law enforcement body. If not for that happy accident, her whistle-blower complaint likely would have been dismissed immediately.
Now Kimball faces another procedural headache. As an employee of ASU, she is supposed to argue her case to the university's own grievance board.
If she does so, she faces additional bureaucratic obstacles that often apply to whistle-blowing employees of city and county governments, too. As long as the government an employee works for has its own grievance system, it falls outside the jurisdiction of the state board. And most of these other personnel systems, including ASU's, give the employee less latitude than the state does.
For one thing, the rights she would have in front of the state personnel board--the right to subpoena witnesses, for example, or to have an attorney direct the presentation of her case at the hearing--she does not have in front of the ASU board. If she does slug it out with Channel 8 in front of ASU's grievance board and loses, she could appeal the case to the court system. But, once there, she would have to begin her case all over.
None of the evidence presented to the grievance board--transcripts, depositions, even briefs--can be used in the superior court.
Arbetman says attorney fees stemming from the board hearing can easily top $10,000. That money is thrown out the window if the employee eventually decides to go to court. It's no wonder that almost no one does.
In a hearing on June 12, Kimball and Arbetman asked Superior Court Judge Paul Katz to order her hearing moved from the ASU board to the state personnel board. They are still waiting for a decision. Arbetman says he is guardedly optimistic.
"I think we'll prevail," he says. "That's about all I can say."
Kimball is also optimistic about her future. But she acknowledges that even if she does prevail, it's hard to say what she will have won. After years of being uncomfortable at work, and after suffering varying degrees of personal estrangement from so many co-workers, including, of course, her boss, does she think it's worth trying to be reinstated to her old job?
"I don't know how to answer that," she says. "I'd like to go back. I like my job there. But there is a lot to overcome."
In 1992, Eric Pollard decided he'd had enough of his job. As a purchasing and inventory employee of the Arizona Department of Corrections for eight years, Pollard traveled from facility to facility, watching the agency grow from a smallish, low-profile entity into the high-exposure, megabudget behemoth it is today. Along with that growth, he says, came an explosion in waste and fiscal mismanagement.
"Before things got so big," he says, "people paid more attention to the small details. But as we got busier, more stuff started to slide. It sounds like little things, but when you look at it on a larger scale, you're talking about a lot of money."
Though he's happy about it now, Pollard was furious to find out in 1993 that after nearly two years of struggling with the state over his whistle-blower complaint, his whole fight was for naught. Technical trap doors in the whistle-blower law made sure of that.
Pollard made his first complaint about waste in May 1992, when he memoed his immediate supervisor about activities he claimed to have witnessed at the state prison in Florence. He told his supervisor that he saw employees there discard large quantities of equipment and supplies--to make room for incoming shipments of the same items. He alleged that he saw employees dump perfectly good office supplies, furniture and even computers into trash receptacles, which would then be hauled away. He says his supervisor told him he'd look into the matter.
A few months passed, and when his supervisor didn't mention anything about the incident, Pollard asked about it.
"He was very edgy, like he was uncomfortable with the question," Pollard says. "Finally, after beating around the bush, he said he had talked to a supervisor [at Florence] and that nothing had happened.
"But I had seen it with my own two eyes."
This time, Pollard wrote a letter to the state Attorney General's Office. Like Kimball, Pollard had addressed his concerns to the proper body out of sheer luck. His wife told him to. He had originally planned to memo his supervisor's supervisor, who would not have been high enough in DOC management to be considered a representative of a "public body" under the whistle-blower law.
After a couple of weeks, Pollard says, he heard rumors from a co-worker that inquiries had been made and that his supervisor was upset with him. About a month after he sent the letter to the Attorney General's Office, he was notified in writing that his duties were being "redefined," that he would no longer be traveling from facility to facility. He also says he noticed his supervisor's attitude toward him change sharply.
"He was mad, no doubt about it, but he also seemed to be a little hurt, too," he says. "Like I had betrayed him somehow. It got really hard for us to work together after that. We had always gotten along before that."
Pollard appealed to higher-ups at DOC, and when he got nowhere, he filed his whistle-blower action in early 1993. His action was dismissed for two reasons: He had not filed his claim of retaliation within ten days, as the law demands, and he was not able to definitively prove a link between his disclosure and the subsequent change in his job.
Although the ten-day rule meant that under the law, it probably would have made no difference, Pollard thinks he might have gotten farther along if he'd had a lawyer. He was bitter about it at first, and considered trying to file again with legal help. Looking back on the experience, though, he sees his lack of legal savvy as a blessing in disguise.
"Who knows how much it would have cost me?" he says. "I still probably wouldn't have gotten anywhere."
Pollard began looking for other employment in the state government, and left Corrections in the summer of 1993. He has been happily employed ever since.
"It was just best to get out," he says.
Anyone who has been through it can tell you that the worst part of being involved in a whistle-blower action is finding out that doing what you always thought was the right thing can be so devastating, both personally and professionally.
It takes a long time, and a lot of money, to learn that lesson.
Whistle-blowers, it seems, are an overwhelmingly idealistic and, often, naive lot, motivated by what they think is obviously right. By embarking on a course that others might view as doomed, they set themselves up for falls that can take years to recover from.
Terry Thayer pursued, and lost, a whistle-blower action against Pinal County in 1990. Her allegations centered on a supervisor, now departed, whom Thayer thought was wasting county money on unnecessary equipment and supplies. She followed the proscribed channels, and notified a county supervisor of her manager's activities in the correct form.
Her manager found out about the disclosure, Thayer claims, and responded to her allegations by giving her unreasonable work assignments with impossible deadlines, reprimanding her for stepping outside to smoke and rejecting her requests for vacation and sick time. Over the next two years, she says, she found out how physically, emotionally and financially draining her choice turned out to be.
"I spent two whole years fighting over that," she says. "That's two years of my life I'll never get back. Two years of hating going to work every day. That takes a real toll on you."
Thayer says there were people in her office she had been friends with; her actions split the once-friendly group almost down the middle, some on her side and others against her. But with the exception of one person, even those who privately claimed to support her were unwilling to take her side publicly in the battle with the boss.
"It wasn't just me who suffered because of what I did," she says. "Everyone there felt it somehow. I know people there who have moved on to other jobs, people who were friends once but haven't spoken to each other at all now for years."
Her case took 21 months to wind its way through county channels, then, finally, to the personnel board. Her hearing officer ruled that although her work reviews had been exemplary until the date of her disclosure, then plummeted, and although her relationship with her boss had been cordial until she turned him in, there was no way she could definitively prove that he had retaliated against her because she had reported possible waste.
Thayer thought about appealing the decision to the courts, she says, but not for long.
"I had a long talk with my boyfriend at the time, and we added up the legal bills I already had sustained. I remember it to this day. Six thousand, eight hundred dollars, give or take a little. For what? I still lost my job."
It took Thayer more than a year to find another job in her field. Even then, she took a substantial pay cut. By the time she was making as much as she had before, three years had slipped by from the date of her first complaint.
The only county co-worker she keeps in contact with is one who stood up for Thayer, publicly, in the dispute with her boss. That friend, who still works for the county and asked that her name not be used, says she thinks she suffered retaliation of her own.
Learning from Thayer's example, she says she let it slide.
"There was no way I was going to go through that," the friend says. "Terry's a strong person, but toward the end of it, even she was really a mess."
Thayer doesn't necessarily disagree with her friend's decision. In fact, Thayer echoes the sentiments of most of the whistle-blowers interviewed for this story when she says she doesn't think she would go through the formal complaint process again.
"It was just too hard," she says. "There was so much going on, I could hardly keep up with it all. It cost me so much money. It set my life back. I lost 20 pounds. My boyfriend and I broke up. It was an awful time.
"I wouldn't wish that on anyone.
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