WHISTLING IN THE DARK? (Part II)

1. Archie Mazmanian reports.
2. Much more minimal research by Bob.

1. Archie Mazmanian reports.

The City of Cambridge website is quite extensive, with search aids providing access to various public documents, records and information. However, despite my extensive search efforts, I was unable to link to any notices required by subsection (g) of the Whistleblower Statute. (See Part I of this series. The Whistleblower Statute is available at: http://www.mass.gov/legis/laws/149-185.htm - download and print it out for reference.) While I did find several references to General Laws Chapter 149, I found none for its Section 185.

The neighboring Town of Arlington has posted its “Employee Handbook” on the Internet in PDF form, available by “Googling” Town of Arlington Whistle Blower Policy. Its Whistleblower Policy is on pages 11 and 12.

Perhaps the City of Cambridge has posts of the required subsection (g) notices on bulletin boards at its public facilities. [Note: My search of the bulletin boards on the third floor of City Hall on 12/23/09 failed to reveal such notices. There is a detailed laminated post prepared by the Office of the MA Attorney General (“AG”) relative to MA Wage and Hour Laws with reference to certain provisions of Chapter 149 but not to the Section 185 Whistleblower Statute.] It would seem helpful to not only Cambridge employees but also to its residents if such notices were readily available at its website.

While Arlington’s Whistleblower Policy may satisfy the letter of subsection (g), does it capture its spirit? (I should point out that Arlington’s Whistleblower Policy, which has long been in place, is much more detailed than the much later Town of Brookline steps to comply with subsection (g) referenced in Part I.) Here are some thoughts on Arlington’s Policy in considering what information should subsection (g) notices contain to inform “employees of their protection and obligations under [the Whistleblower Statute]”:

1. While reference is made to “retaliatory action” against an employee, the definition of that term is not included. Subsection (a)(5) of the Whistleblower Statute defines this as: “ … the discharge, suspension or demotion of an employee, or other adverse employment action taken against an employee in the terms and conditions of employment.” It would seem important that employees be aware of this definition.

2. While the Policy states: “Employees aggrieved by a violation of this law may institute civil action in the Superior Court in accordance with M.G.L. Chapter 149, Section 185(d)”, subsection (d) provides that such an action may be brought within two (2) years of an alleged violation, that a jury trial can be claimed, and that broad remedies are available for such an alleged violation, including treble damages, reasonable costs and attorneys’ fees. It would seem important that employees be aware of this.

3. The Policy fails to disclose the circumstances described in subsection (e)(1) to the effect that if a court finds the action taken by the employee “was without basis in law or in fact, the court may award reasonable attorneys’ fees and court costs to the employer.” Nor does it disclose the circumstances in subsection (e)(2) under which attorneys’ fees may not be assessed (but presumably court costs could). It would seem important that employees be aware of these provisions.

4. The Policy includes this requirement: “The employee must, by written notice, bring the activity, policy or practice in question to the attention of the persons designated by the Town to receive such notice unless [certain listed exceptions are applicable].” It would appear that this is intended to reflect subsection (c) of the Whistleblower Statute. However, paragraph (1) of subsection (c) seems to be limited to “an employee who makes a disclosure to a public body” of an alleged violation; that such a disclosure to a public body would not afford an employee with protection against retaliatory action provided by subsection (b)(1), unless the employee first brings the matter “to the attention of a supervisor of the employee by written notice and has afforded the employer a reasonable opportunity to correct the activity, policy or practice.” [Paragraph (2) of subsection (c) sets forth exceptions to paragraph (1).] The term “public body” is defined in subsection (a)(3) of the Whistleblower Statute with much specificity. But subsection (b)(1) of the Whistleblower Statute also applies to disclosures, actual or threatened, by an employee other than to a “public body” that would entitle an employee to protection against “retaliatory action” presumably without the need for the written notice required by subsection (c)(1) regarding disclosure to a “public body.” For example, the definition of a “public body” does not include newspapers and other media (including TV and the Internet).

My comments on the Arlington Whistleblower Policy are not intended to be critical of the Town of Arlington, which based upon my research has made a good faith effort to comply with the requirements of subsection (g) of the Whistleblower Statute much more so, and much earlier, than most of MA’s 350 cities and towns. Rather, my interest is in compliance with both the letter and the spirit of subsection (g). Perhaps the MA AG should be providing assistance to MA governmental employers in its monitoring of such employers’ compliance with subsection (g) to ensure that their notices satisfy its requirements. (See Part I concerning the role of the AG with the Whistleblower Statute.)

[Part III of this series will address the consequences to a MA governmental employer if it fails to comply with subsection (g).]

2. Much more minimal research by Bob.

I emailed HR at Cambridge and was referred to the laminated poster on the third floor of Cambridge City Hall which Archie describes in his third paragraph above.

Urban Ring 2 Delay Granted

1. Archie Mazmanian reports.
2. Related Items.

Edited, with added matter by Bob.

1. Archie Mazmanian reports.

EOEEA Commissioner Bowles with his December 16th response to MassDOT's Mullan granted the latter's 30 day extension request. (This has been posted at the Urban Ring website.) Mr. Mullan has yet to schedule any public meetings in advance of the new Jan. 15, 2010 "drop-dead" response date.

2. Related Items.

Archie’s prior report on the Mullan request is below at: http://charlesriverwhitegeeseblog.blogspot.com/2009/12/urban-ring-phase-2-on-holiday.html.

The Bowles response may be read at: http://www.theurbanring.com/documentframeset.asp?docname=https://www.commentmgr.com/Projects/1169/docs/Bowles_URP2_Response_Dec1609.pdf.