Whistlebusters.org
Press Release, February 1, 2006
We are a group of current and former CSU faculty and staff, all of us
former whistleblowers. We have joined together to blow the
whistle on the CSU whistleblower program. Our combined
experiences with this program, administered by the CSU Office of
Employee Relations (CSU-OER), have led us to conclude that the CSU
whistleblower program is fraught with the very problems that it is
supposed to expose and eliminate: incompetence, bad faith, and gross
mismanagement of taxpayer funds.
The wasteful and harmful practices of the CSU-OER have persisted for
years due to a lack of effective oversight by any agency within or
outside the CSU system. Since 2000, CSU-OER personnel have expended
millions of dollars in public funds on investigations, and on
litigation and settlement costs, much of which could have been avoided
given more competent and forthright management of the program.
All the while, by their own admission, CSU-OER managers have operated
without a budget, and have yet to produce a single financial report
that comprehensively tracks or analyzes their expenditures since the
CSU whistleblower program's inception in 1999. Given that the
CSU-OER pays out substantial sums of taxpayer money, but does not
engage in even the most basic financial analysis or reporting
functions, it is difficult to see how they, or any supervisory body,
could know if the program is living up to its charge to thoroughly
investigate whistleblower complaints and eliminate government waste, or
whether the program wastes more money than it saves. Financial
and other records obtained through public records requests strongly
suggest the latter. However, as explained below, economic waste
is not the only serious problem with the CSU-OER’s management approach:
their policies and practices have on the whole reflected a cynical
disregard for the rights and interests of those who have taken on the
greatest risks on behalf of the public’s interest: the whistleblowers
themselves.
The Root of the Problem
CSU-OER personnel have, as a result of their poorly considered, and in
some cases non-existent policies, helped to create conditions that
almost inevitably lead to wasted taxpayer funds, and in all too many
cases to serious personal and professional harm to individual
whistleblowers.
Each year, the CSU-OER posts posters and forwards broadcast emails
through the individual CSU campuses encouraging CSU employees to blow
the whistle on fraud and waste. The language is upbeat and
compelling. It is also contains several false representations, as
described below.
1. False
Representation #1: Blowing the whistle at CSU is safe.
The CSU-OER's whistleblower
recruitment literature conveys the idea that it is safe to blow the
whistle at CSU. In fact, CSU-OER personnel know that blowing the
whistle at CSU is anything but safe: among other indicators, 38
whistleblowers have filed formal retaliation complaints since
2000. In the aftermath of their complaints, many whistleblowers
have been transferred, retired early, or have been forced out of their
jobs. Even more troubling, many whistleblowers end up filing
lawsuits against CSU, most often to seek damages for injuries sustained
in the course of being a CSU whistleblower; 6 whistleblower-related
lawsuits against CSU are currently ongoing.
By failing to disclose to prospective
whistleblowers the known risks, while representing to them that they
will be safe, CSU-OER personnel are in effect engaging in a form
of "fraudulent inducement". The whistleblowers are encouraged to
file a complaint but then end up harmed as a result.
2. False
Representation #2: Whistleblowers will be shielded from retaliation.
The CSU-OER's whistleblower
recruitment literature states that the whistleblower will be "shielded"
from retaliation. In fact, according to public records provided
by the CSU-OER, that office has failed to implement any university-wide
program to shield whistleblowers from retaliation, comparable to the
universal, in-depth training programs and strict enforcement policies
that shield CSU employees from other forms of harassment. The
virtual non-existence of an effective retaliation-prevention training
program at CSU is confirmed in a recent letter of determination drafted
by Vice Chancellor Jackie McClain, who oversees the CSU-OER. In her
Dec. 19, 2005 letter to a whistleblower (obtained through a public
records request), apparently referencing the alleged retaliator, Vice
Chancellor McClain writes, “Appropriate action should, therefore, be
taken by the campus to educate [the alleged retaliator] about her
obligations under EO 822 and to prevent a similar occurrence in the
future”. Later McClain writes, "I hope that one remedy is that the
campus will educate [the alleged retaliator] about her responsibilities
under EO 822". Thus, more than 5 years after the inception of the
whistleblower program at CSU, the protection of whistleblowers against
retaliation remains a matter of “hope” in the mind of the CSU official
who oversees the CSU-OER, and consists of educating individuals about
their responsibilities after they have already been charged with
retaliation.
By failing to implement any credible
mechanism to shield whistleblowers from retaliation, the CSU-OER
virtually guarantees that CSU employees who become whistleblowers will
suffer harm. This leads to more retaliation complaints filed under E.O.
822, each of which must be investigated at substantial cost, followed
in some cases by litigation, which leads to even greater costs to the
taxpayer.
3. False
Representation #3: If you blow the whistle, the CSU will go to bat for
you.
The CSU-OER's whistleblower
recruitment literature reassures the potential whistleblower that the
state will "go to bat" for them. Sadly, the opposite is
true. Once a whistleblower has experienced retaliation, and has
filed an E.O. 822 complaint, the relationship between CSU and the
whistleblower turns immediately adversarial. This is because the
CSU-OER understands that an official finding of retaliation by them
would (1) embarrass them by calling attention to the fact that they do
virtually nothing to prevent retaliation, (2) put pressure on them, and
on Vice Chancellor McClain, to discipline the retaliators, which could
lead to further personnel problems including more lawsuits, and (3)
entitle the whistleblower to substantial compensation for damages,
which the CSU-OER would prefer to avoid paying. All three
problems are rendered moot, however, if the individual that the CSU-OER
hires to carry out the E.O. 822 investigation happens to find that no
"adverse employment action" against the whistleblower has occurred, or
if it did occur, that the adverse action "could not be connected" to
the whistleblower's filing of his or her complaint.
How often do CSU-OER's investigators find retaliation? In 38
cases of retaliation reported to the CSU-OER under E.O. 822 since 2000,
the investigators hired by the CSU-OER have found retaliation only 4
times. In one case, an outside defense lawyer hired by the
CSU-OER (Alan Zuckerman of Lewis, Brisbois Bisgaard & Smith LLP)
admitted to the whistleblower (M.C.) at the outset of his investigation
that his client, CSU, would prefer that he find that no retaliation had
occurred. To his credit, Mr. Zuckerman thus admitted that he was
subject to a conflict of interest. At the conclusion of his
investigation, Mr. Zuckerman reported to CSU that 13 of the 14 acts of
retaliation alleged in the complaint, having begun immediately
following the filing of the whistleblower's complaint, having never
occurred before the filing of the complaint, and having continued over
a period of a year following the filing of the complaint, nonetheless
"could not be connected" to the filing of the complaint. Mr.
Zuckerman was paid $24,000 for his work for CSU in that case.
According to best available information, Alan Zuckerman’s firm has
received more than $500,000 in fees from CSU for this and other legal
work.
In hiring outside defense lawyers who
are subject to a conflict of interest, rather than neutral
investigators, the CSU-OER fails in its responsibility to the public,
and especially to individual whistleblowers, to conduct thorough,
neutral investigations of whistleblower retaliation
complaints. The incomplete and biased nature of the E.O.
822 investigations run by the CSU-OER has—of a certainty—led to several
lawsuits against the CSU by whistleblowers who feel they were "sold
out" by the process. In one case, CSU expended $727,000 in attorney’s
fees fighting a whistleblower who sued to recover damages from the
retaliation he experienced as a CSU whistleblower. Such lawsuits,
and the corresponding waste of taxpayer funds, could have been avoided.
4. False
Representation #4: The CSU-OER enforces whistleblower retaliation laws
with harsh penalties.
The CSU-OER's whistleblower
recruitment literature speaks of harsh penalties for retaliation,
including $10,000 fines and one year in jail. This language
suggests that a significant deterrent exists, making it safer to blow
the whistle. In practice, however, the CSU-OER does not enforce
whistleblower retaliation laws. As previously mentioned, in the
38 retaliation complaints brought to the CSU-OER since 2000, only 4
cases of retaliation were found, and in only a single case did Vice
Chancellor McClain dispense any disciplinary action.
Was at least that single disciplinary action particularly severe?
Evidently not. Vice Chancellor McClain stated in a letter of
determination that the disciplinary action had been carried out
retroactively, that is, some unspecified disciplinary action had
already been prescribed at a time predating the retaliation
investigation entirely. The nature of that disciplinary action
was kept secret, but it involved neither a fine, jail time, or any
perceptible change in the retaliator's duties or powers as a CSU
Department Chair. What is not secret is that that Chair was given
the highest award that can be conferred upon a CSU professor by campus
administrators at the next possible opportunity (the 2005 "Best
Professor" award).
The CSU seems to be more interested
in defending itself against claims that the CWPA has been violated than
it is in protecting the rights of the whistleblowers themselves. Among
the most troublesome aspects of the enforcement of the CWPA is that the
CSU is allowed to investigate itself. No credible investigative pursuit
can be conducted by the very entity charged with the violation.
5. False
Representation #5: The CSU-OER cares about whistleblowers.
The overall tenor of the
whistleblower recruitment process projects a concern for the
whistleblowers. In informal conversations, most CSU whistleblowers
report feeling crushed and demoralized by the process. (According
to a public records request, the CSU-OER has never polled
whistleblowers about their level of satisfaction with the CSU-OER’s
performance.) Despite this, the CSU-OER director, Ms. Maria
Santos, has stated that she is unwilling to assist in the creation of,
or even to publicize the existence of, a grass-roots support network
whose purpose is to help former whistleblowers recover from the
psychological trauma of having been a CSU whistleblower.
Perhaps the impediment to the
formation of such a group from the CSU-OER's perspective is that any
organization of CSU whistleblowers could mean further legal and/or
public relations problems for the CSU-OER.
Summary of the Problem
The CSU-OER recruits whistleblowers each year by suggesting that (1)
"blowing the whistle is safe", whereas whistleblowers face grave
personal and professional risks and the CSU-OER knows it; (2)
"whistleblowers will be shielded from retaliation", whereas no credible
program has been put into effect within the CSU to shield
whistleblowers from retaliation; (3) "the state will go to bat for
you", whereas upon filing a retaliation complaint, the whistleblower is
immediately transformed into a potential legal problem for the
university, and is dealt with accordingly; and (4) "retaliators will be
dealt with harshly", whereas the CSU-OER reneges on enforcement of
whistleblower retaliation laws. The combined effects of the
misrepresentations and the ineffective or non-existent policies of the
CSU-OER are that large sums of taxpayer money are wasted, and
whistleblowers, who have been fraudulently induced to identify waste
and corruption in the CSU system, are subjected to serious personal
and/or professional injury that could have been avoided. These
undesirable outcomes were clearly not the intent of the drafters of the
California Whistleblower Protection Act as it applies to the California
State University.
What We Are Seeking
We hereby call upon the Trustees of the California State University to
immediately suspend any new activities of the CSU whistleblower
program, as administered by the CSU-OER, pending an investigation into
its current policies and practices by the California Bureau of State
Audits.
Our vision for improvements in the CSU whistleblower program includes
five categories of changes:
- Disclosure.
The history of outcomes and risks associated with whistleblower claims
filed at CSU should be quantitatively documented and clearly
communicated to any prospective whistleblower at CSU (and to
legislators, the public, the Trustees, etc.). Regarding
outcomes, whistleblowers should be informed as to what substantive
corrective actions have resulted from previous whistleblower claims, so
that they may judge whether filing a claim at CSU is worthwhile.
Regarding risks, prospective whistleblowers should know the historical
frequency of exposed identities, the frequency of reported retaliation
vs. the frequency of findings of retaliation, types of disciplinary
action taken against retaliators, the frequency of subsequent
transfers/retirement/termination of whistleblowers, and the frequency
and types of lawsuits filed by former whistleblowers against the CSU.
- Training.
If whistleblowers are to be told that they will be shielded from
retaliation, a training program comparable to those created for sexual
harassment and other types of workplace harassment should be developed
and promulgated. This could be achieved by incorporating whistleblower
retaliation information into the existing harassment training programs
already required of current CSU employees.
- Impartial
investigations. Whistleblower and retaliation complaints
should be investigated by panels (analogous to grand juries) made up of
individuals with no financial or other stake in the outcome of the
investigations. A panel might include one or more members of the
CSU faculty or staff, a professional auditor, a student, a
representative of the Trustees, a labor lawyer, and so on. All of those
who serve must demonstrate that service on the panel does not
constitute any conflict of interest.
- Accountability and
oversight. The CSU whistleblower program should
publish annual reports including outcomes (see item 1), expenditures,
and analysis of cost effectiveness of the program.
- Whistleblower
support. CSU should establish an optional anonymous
electronic exchange whereby current and former whistleblowers can make
contact with each other to form a support network. Specialized
counseling services should also be made available to whistleblowers to
cope with the difficulties arising from their grievance process.
Back to
homepage: www.whistlebusters.org
Prof. Maria Carreira, CSULB, Committee Chair
carreiragfmc@hotmail.com
Carole Kosloski, formerly CSU Hayward
Prof. Suave Lobodzinski, CSULB
Leslie Markle, formerly CSULB
Prof. Walter Moore, CSULB (Emeritus)
David Ohton, CSU San Diego
Prof. Richard Runyon, CSULB