Sunday, January 31, 2010

WHISTLING IN THE DARK? (Part V) ̵ Practical Aspects to Noncompliance

Archie Mazmanian Continues his Series on the Massachusetts Whistleblower Statute.


This series started on 12/18/09. I had expected to hear by now whether Cambridge is in compliance with subsection (g) of the MA Whistleblower Statute. [The Statute is available at - download and print it out for reference. Also, refer to Parts I through IV of this series.] But I have not heard back. Let’s assume that Cambridge is not in compliance. What is the impact of such failure upon an employee of the City of Cambridge?

When I last checked, all but one appellate court decision on the Statute were at the federal level. None of the appellate decisions I have reviewed discussed what happens if a MA governmental employer fails to comply with Subsection (g). But several of such decisions have denied recovery to a MA governmental employee for failure to provide in writing to the MA governmental employer complaints of the type contemplated by the Statute before commencing a lawsuit against the latter. Why? Because “public body” as defined in subsection (a)(3)(B) includes “ … any federal, state or local judiciary ….”

Subsection (c)(1) of the Statute would not prevent a MA governmental employer from taking retaliatory action against an employee if the latter “ … makes a disclosure to a public body unless the employee has brought the activity, policy or practice 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 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.” [Emphasis added.] (An exception to this requirement is provided under subsection (c)(2) discussed below.)

Recall that notices of the MA governmental employer required under subsection (g) of the Statute “ … shall include the name of the person or persons the employer has designated to receive written notifications pursuant to subsection (c).” So how can the employee comply with subsection (c)(1) if the employer has not complied with subsection (g)?

Subsection (a)(4) of the Statute provides a definition for “Supervisor” based upon the employment relationship of the employee “ … or who has been designated by the employer on the notice required under subsection (g).” What if the employee’s complaint under the Whistleblower Statute relates to conduct, etc, of the “Supervisor”? Might the policy behind the requirements of subsection (g) be thwarted by the failure of the employer to make the designation required under subsection (g)? Might the employee be placed in a “Catch-22” situation by such failure?

In effect, the MA governmental employee is between the rock and the hard place as a result of the failure of the employer to comply with subsection (g) of the Whistleblower Statute. While such failure does not deprive the employee of his/her rights under the Statute, it makes navigating its provisions risky without consulting with an attorney (which can be expensive). Might a MA governmental employer intentionally fail to comply with subsection (g) to frustrate an employee from taking any of the steps outlined in subsection (b)(1), (2) and (3) concerned with “activity, policy or practice in violation of law, or which the employee reasonably believes poses a risk to public health, safety or environment” because of the employee’s concern with retaliatory employment action?

Yes, there is an exception under subsection (c)(2) from the requirement to provide written notice under subsection (c)(1); but it would be risky relying upon an exception even with the advice of counsel in being assured that an exception would apply. (Again, such legal advice may be expensive.)

And there is a relatively short 2-year statute of limitations under subsection (d) of the Statute for the employee to commence a civil action seeking remedies for any retaliatory actions taken by the employer against the employee.

Let’s assume that despite the failure of the employer to comply with subsection (g) the employee provides the written notice pursuant to subsection (c)(1) to a supervisor to afford “the employer a reasonable opportunity to correct the activity, policy or practice.” How long might that take? How may the supervisor react to the written notice especially if the employee’s written notice concerns that supervisor? Again, the employee may be placed within the rock and the hard place.

If the MA governmental employer had complied with subsection (g) of the Statute, perhaps the person designated by the employer “to receive written notifications pursuant to subsection (c)” would not be a direct supervisor of the employer. In the Towns of Arlington and Brookline, each has so designated its Town Administrator as such a person. Presumably there would be a good faith obligation on the part of such a designee to investigate the employee’s written notice, thus affording “the employer a reasonable opportunity to correct the activity, policy or practice.”

Are the good employees of the good City of Cambridge between the rock and the hard place or is Cambridge in compliance with the requirements of subsection (g)? If anyone knows, I’m in the book in Brookline.

Cambridge is but one of the 350 MA municipalities required to comply with the Whistleblower Statute, in addition to the numerous MA state and county governmental employers. The Statute not only protects employees, it also protects the public which funds MA governmental employers.

[Note: I had thought that this series would be concluded with Part V. However, there are more aspects of the Whistleblower Statute that should be addressed. This is a statewide matter in the public’s interest. The letter and spirit of the Statute should be complied with by all MA governmental employers. So bear with me for a Part VI and possibly a Part VII.]