WHISTLING IN THE DARK? (Part I)
Archie Mazmanian reports the following.
His report, of course, is highly relevant given the now $5 million plus award to Malvina Monteiro. Judge and jury found that Cambridge destroyed the life of this black woman department head in retaliation for her filing a civil rights complaint. The judge summed up her decision using the word “reprehensible.” Monteiro case still in Superior Court considering post trial motions. [Bob comment]
Are employees and residents of the City of Cambridge aware of the MA Whistleblower Statute set forth in Section 185 of Chapter 149 of the MA General Laws? Subsection (g) of Section 185 provides:
“An employer shall conspicuously display notices reasonably designed to inform its employees of their protection and obligations under this section, and use other appropriate means to keep its employees so informed. Each notice posted pursuant to this subsection shall include the name or the person or persons the employer has designated to receive written notifications pursuant to subsection (c).”
Is the City of Cambridge in compliance with both the letter and spirit of subsection (g)? Are the required notices conspicuously displayed? Are they furnished routinely to new employees? Are all employees appropriately kept informed?
The Whistleblower Statute has been around since the 1990s. A few years ago, I learned that my Town of Brookline was not in compliance with subsection (g) following a public records request. To their credit Brookline officials promptly addressed this by preparing and distributing notices to Town employees pursuant to subsection (g), although in my view such notices did not comply with both the letter and spirit of subsection (g).
For purposes of Section 185, subsection (a)(2) defines “employer” as:
“ … the commonwealth, and its agencies or political subdivisions, including, but not limited to, cities, towns, counties and regional school districts, or any authority, commission, board or instrumentality thereof.”
Chapter 149, and thus Section 185, falls within the jurisdiction of the MA Office of the Attorney General (“AG”) for enforcement. How many of MA governmental employers are in compliance with subsection (g)? How, if at all, does the AG monitor compliance by such employers?
Now, no one likes a snitch. Recall the scene in the movie “Sparticus” when a Roman leader offers certain amnesties to slaves if the identity of Sparticus were revealed. One by one a chained slave would rise from the mass of slaves and say “I am Sparticus” until all the slaves, including Sparticus, rose to so declare themselves. Sparticus’ cause was worthy of protecting, as these slaves well recognized.
But what about a conscientious MA governmental employee faced in the course of employment with situations described in subsection (b)(1) of Section 185:
“ … an activity, policy or practice of the employer, or of another employer with whom the employee’s employer has a business relationship, that the employee reasonably believes is in violation of a law, or a rule or regulation promulgated pursuant to law, or which the employee reasonably believes poses a risk to public health, safety or the environment.”
Should the employee just remain silent, i.e., not snitch? Should the employee consider resigning, for reasons of conscience or otherwise? Well, Section 185 prohibits retaliatory action by a MA governmental employer against an employee who decides not to remain silent.
The MA Whistleblower Statute is narrowly drawn and is much less protective than federal whistleblower provisions. In my view, protections for MA governmental employees should be expanded. But I don’t have confidence that MA legislators have the political will or courage to do so, considering the history of corruption that has been exposed by federal authorities.
Even so, the Whistleblower Statute we do have should be enforced, from the top down. After all, public funds are involved. Enforcement just might diminish the need for MA governmental employees to blow the whistle, thus better preserving the public fisc.
[I plan to follow up with additional commentary on this topic. Interested viewers may access the MA Whistleblower Statute at http://www.mass.gov/legis/laws/mgl/149-185.htm ]