Bill would streamline handling of ‘whistleblower’ complaints, increase protections

After failing last year to address a backlogged system for processing state employee complaints of corruption and waste, the General Assembly adopted a bill this week granting state auditors broad discretion to reject complaints while expanding whistleblowers’ protections.

The measure, which now heads to Gov. Dannel P. Malloy’s desk, also prohibits agencies and state contractors from retaliating against employees who testify in or provide assistance to another employee’s whistleblower case.

“This is a very reasonable way of streamlining the process,” Sen. Gayle S. Slossberg, D-Milford, co-chairwoman of the Government Administration and Elections Committee, said Thursday, referring to six new criteria that the auditors can use reject a complaint after an initial review. “Courts can reject frivolous complaints. Not every complaint has merit.”

Under the bill, auditors may reject a complaint if they determine:

• A complainant has other available remedies that could reasonably be pursued.
• Other agencies are better suited to investigate.
• It is “trivial, frivolous, vexatious, or made in bad faith.”
• The complainant has waited too long to file.
• The subject of the complaint already is being addressed in an ongoing audit.
• Other complaints have been given greater priority.

If the auditors reject any complaint, they still must file a report with the attorney general citing their reason for doing so.

State government’s whistleblower statutes have been under scrutiny since the legislature’s chief investigative arm reported in December 2009 that nearly 200 whistleblower cases were backlogged, including 29 that were more than two years old.

The Program Review and Investigations Committee also found that the number of whistleblower complaints filed under this system more than doubled between 2002 and 2008. The growth, from 70 in the 2002 to 151 in 2008, has strained auditors’ resources, the panel concluded, also recommending establishment of a process for quickly dismissing frivolous complaints.

Retiring State Auditors Kevin P. Johnston and Robert G. Jaekle used their final annual report to the legislature in late December to recommend creation of a new agency to assume responsibility for whistleblower complaint review.

“The statutory requirement that our office review all whistleblower complaints filed with our agency affords our agency no flexibility in deciding which complaints are worthy of spending limited state resources to review and investigate,” Johnston and Jaekle wrote.

One of the smallest agencies within the Legislative Branch, the auditors’ office has 117 staffers and a $13.4 million operating budget.

The auditors’ office, which traces its origins back to the colonial charter of 1652, primarily is responsible for auditing state agencies, quasi-public entities and government programs, and for preparing the statewide single audit report, a comprehensive analysis of state finances including federal assistance. A total of 63 audits with 456 recommendations were issued in 2010.

But since the whistleblower statutes were enacted in the late 1970s, the auditors have had primary responsibility for processing those complaints, though certain criminal matters also are reviewed to the Attorney General’s office.

Johnston and Jaekle also recommended that the auditors be allowed to direct other agencies to review particular complaints if they are deemed better suited to do so–a recommendation incorporated into the bill adopted this week.

The new auditors, Democrat John Geragosian and Republican Robert M. Ward, also endorsed this referral power, and Geragosian said Thursday that he believes this change and others in the bill will strengthen the whistleblower system.

“I believe our office will be able to devote resources to the more complex complaints,” he said, “and ultimately it will get the complainants better results.”

Another key change in the bill is designed to better protect whistleblowers who believe they have been retaliated against by a state agency or contractor.

Those employees already have 30 days to file a complaint with the Commission on Human Rights and Opportunities. While adjudicating the case, CHRO begins with the presumption, which can be rebutted, that any disputed actions taken against an employee within one year after a whistleblower complaint has been filed are retaliatory.

Under the bill sent to the governor’s desk, the rebuttable presumption applies to any actions taken within two years of the initial complaint, and workers now would have 90 days to report retaliatory acts to CHRO.

Whistleblowers who believe they face retaliation also can file complaints with the attorney general’s office under current law, but that option disappears in the new bill.

“I’m pleased by the changes made in the whistleblower complaint investigation process because they provide more protection to whistleblowers and eliminate duplication and confusion,” Attorney General George C. Jepsen said Thursday.

Jepsen also backed removal of the appeal option involving his office, noting that while the attorney general can investigate claims under current law, it is not empowered to provide any relief to aggrieved parties.

“The change will free up valuable resources for my office to continue to investigate and report on fraud, waste and corruption in state government,” Jepsen said. “More importantly, the provisions will extend protections for whistleblowers to everyone’s benefit.”

The State Employees Bargaining Agent Coalition also has raised concerns about the whistleblower case backlog in recent years–including last spring, when reform measures died from inaction on the House and Senate calendars.

“The need for significant protection for employees who report waste, mismanagement, or inappropriate conduct has always been a high priority,” SEBAC spokesman Matt O’Connor said Thursday. O’Connor said SEBAC has not yet reviewed the current legislation, however.

Because the whistleblower changes were included in an omnibus budget policy bill negotiated by majority Democratic legislators and by the Malloy administration, the measure is expected to be signed by the governor.