CalAware Today

Obama Channeling Nixon's Anti-Leak Ferocity?

WHISTLEBLOWERS -- The Obama Administration is cracking down harder on leakers than did its predecessor—in fact than any of its predecessors, reports Scott Shane in the New York Times.

A $3.5 Million Tweet from an Amazing Whistle

WHISTLEBLOWERS -- Cross a government watchdog with a government whistleblower and what do you get? Crossman—Kimo Crossman, that is, a co-founder of San Francisco's Sunshine Posse and a man who doesn't like to see huge banks skate away from their tax obligations.  Rebecca Bowe has the story in the San Francisco Bay Guardian.

Whistleblower Air Marshal Appealing His Dismissal

WHISTLEBLOWERS -- A former federal air marshal last week finally got his day in court to appeal his firing by the Federal Air Marshal Service (FAMS) three years ago for disclosing "sensitive" but unclassified information to the media in the summer of 2003, reports Matthew Harwood in Security Management. The whistleblower says his disclosure protected the public from vulnerabilities that could have led to another 9-11 style attack.

FBI Whistleblower: Was Pelosi Protecting Harman?

WHISTLEBLOWERS/OPEN GOVERNMENT -- Sibel Edmonds, the War on Terror's most frustrated—and celebrated—whistleblower, wonders whether House Speaker Nancy Pelosi may have quashed public hearings into her case by fellow California Democrat Henry Waxman's aggressive watchdog committee, to protect yet a third California Democrat, Jane Harman, long before she came under public  scrutiny for alleged background efforts on behalf of a foreign government.

In March 2007, I was contacted by one of Rep. Waxman's staff people who felt responsible and conscientious enough to at least let me know that there would never be a hearing into my case by their office, or for that matter, any Democratic office in the House. Based on his/her account, in February 2007 Waxman's office was preparing the necessary ingredients for their promised hearing, but in mid-March the Speaker of the House, Nancy Pelosi, called Waxman into a meeting on the case, and after Waxman came out of that twenty-minute meeting, he told his staff 'we are no longer involved in Edmonds' case.' And so they became 'uninvolved.'
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Is it possible that Pelosi asked Waxman to lay off my case in order to protect a few of their own in an equally scandalous case? Was there a deal made between the Democratic and Republican leaders in the House to keep this and other related scandals hushed? Will we ever know the answer to these questions? Most likely not, considering the current state of our mainstream media.

WHISTLEBLOWERS: Federal Air Marshals Punished for Speaking Up

The Project on Government Oversight (POGO) has announced release of its new report, Breaking the Sound Barrier: Experiences of Air Marshals Confirm Need for Reform at the OSC, recommending to the incoming Administration a major overhaul of the Office of Special Counsel (OSC).

Despite contacting almost a dozen current and former air marshals who blew the whistle, POGO could not identify one instance where the OSC upheld its responsibility to provide a secure whistleblower disclosure channel for the resolution of workplace improprieties, to protect whistleblowers from retaliation, and to hold accountable those responsible for whistleblower retaliation.

“The POGO report describes in great detail what actually happens to federal air marshals when they do come forward to root out misconduct and criminal behavior –– they are retaliated against, and in most cases terminated,” P. Jeffrey Black, a federal air marshal from the Las Vegas office.

Court: U.C. Whistleblowers Have Nowhere to Go

The California Supreme Court decided last week what two subordinate levels of the state’s judiciary had already agreed on: an employee of the University of California who reports fraud, waste, abuse or other problems within his or her unit of the system, and who then suffers career abrasion or termination, has no standing to bring a suit for damages under the state’s Whistleblower Protection Act so long as the University itself has checked out the retaliation complaint and, with proper timeliness, found it baseless.

This lack of an independent forum for relief is no accident, as the court noted. The Whistleblower Protection Act allows other state employees in general to sue for damages so long as they have taken their retaliation grievances first to the State Personnel Board. The Act allows California State University employees to seek outside remedies if their employer’s internal processes have failed to provide a satisfactory resolution within 18 months. But the Supreme Court majority held that, thanks to the Act, UC’s internal dispute resolution process, providing it yields some result in a timely way, leaves no avenue of appeal in court.

To appreciate what public awareness issues can be at stake here, consider what these whistleblowers were saying, as described in the high court’s opinion in Miklosy v. Regents:

Plaintiffs Leo Miklosy and Luciana Messina are computer scientists who, in February 2003, were employed . . . at the Lawrence Livermore National Laboratory (the Laboratory). Plaintiffs worked in the National Ignition Facility on a project designed to determine the safety and reliability of the nation’s nuclear weapons stockpile. One method of evaluating the safety and reliability of these weapons involved shooting laser beams at “nuclear material” placed in a “Target Chamber.”

As their work proceeded, plaintiffs “identified problems with the . . . project, including . . . potential collisions by large million dollar robotic ‘positioners’ within the [Target Chamber] . . . , the delivery of unusable and untested control software, a lack of defined engineering and operational processes . . . , and inadequate . . . control operator training . . . .” Plaintiffs repeatedly expressed their concerns to management, both orally and in writing, enumerating specific mechanical problems with the positioners and the robotic controls.

On Friday, February 28, 2003, defendants Kim Minuzzo, Larry Lagin, and Jerry Krammen, who were supervisory employees of the Laboratory, fired Miklosy. As he was leaving the premises, Miklosy heard Minuzzo tell Krammen: “Messina is next.” Believing her performance was comparable to that of Miklosy, Messina submitted a letter of resignation. Lagin and Minuzzo asked Messina to reconsider her resignation over the weekend, which she agreed to do. When Messina returned to her office after this meeting, she found her computer disconnected.

On Monday, March 3, 2003, Messina inquired about transferring to a different position at the Laboratory, but Minuzzo telephoned her the next day and directed her to return to the National Ignition Facility. After that conversation had ended, but before the telephone call was disconnected, Messina overheard Minuzzo tell another employee that he intended to fire Messina. Messina resigned as of March 7, 2003.

When Miklosy and Messina filed whistleblower complaints, the internal investigating officer concluded that they had not been fired for expressing their technical concerns; Miklosy was let go for unsatisfactory work, and Messina was not fired at all, but asked to stay on. And that, all courts subsequently agreed, was the only relief afforded the pair under the Act.

Justice Kathryn Mickle Werdegar, in a concurring opinion joined by Chief Justice Ron Geoge and Justice Carlos Moreno, said the Act was ambiguous: Was the UC’s internal dispute resolution mechanism intended to be simply an exhaustion requirement, i.e. a mandatory first stop for any employee alleging retaliation, or was it meant, as the court majority concluded, as the exclusive and final source of review for retaliation claims?

The latter interpretation accords with the statute’s unambiguous language but is contrary to the overall purposes and structure of the Act. I urge the Legislature to revisit this statute and if, as I suspect, it intended to create only a requirement that complainants exhaust their internal remedies, to amend the statute in a manner that makes that intent clear.

The issue seems tailor-made for Senator Leland Yee (D-San Francisco), whose legislative work this year currently includes a bill to improve employee remedies under the Whistleblower Protection Act; and for the second year in a row, the American Federation of State, County and Municipal Employees (AFSCME) Local 3299, which represents over 20,000 UC employees, this past Saturday named Senator Yee as their Legislator of the Year.

Public Forum Law Week in Review: 11/2/07

(CalAware Weekly comprises this plus the previous three posts)

Free Press
    Gag denied   A judge has again denied a public employee union’s bid to stop the Daily News in Los Angeles from publishing members’ names, positions and salaries in a lookup database on its website.
    Police clashes   Law enforcement officers blocked news media coverage in several incidents in the San Diego wildfires, according to a report by the local ACLU; a San Diego Police Department spokesman responded that the police have the authority to protect evacuees from unwanted press interviews.
    Offending column   The Benicia Herald, a daily newspaper, has fired its editor for a political column he wrote that upset two heavily advertising candidates in next week’s city election.
    Shield veto threat   The White House is threatening to veto the federal shield law bill, H.R. 2102, if Congress passes it, which USA Today predicts is likely.

Free Speech
    Flame retardant   Statements posted to a website on homeowner association issues attacking an attorney’s professional integrity were merely “a private campaign of vilification” and not a matter of public concern meriting anti-SLAPP protection, ruled the Court of Appeal in an unpublished decision.

Open/Secret Government
    Paper trace   Senator Jim Bunning (R-KY) has put a hold on a bipartisan bill to reverse President Bush’s 2001 executive order giving presidents and former presidents more power to halt indefinitely the release of their White House records. The House-originating measure is authored by California’s Henry Waxman.  Meanwhile candidate Hillary Clinton, asked about releasing her husband’s papers, stayed true to message and said they’ll be available after being processed.
    Pumping irony   Contra Costa Times columnist Tom Peele’s reaction to Governor Schwarzenegger’s boast, in vetoing AB 1393, that “My administration's commitment to the public records act is unwavering"—“Really? Does the governor actually believe the things his staff writes in his name?” Meanwhile Schwarzenegger’s office has told the Daily Journal in Los Angeles (sorry for the link lack—its website is subscription only) that it will not identify those whom it consults for recommendations on the appointment of judges, although it has said it would release the names to the Assembly—by January.
    Land deal secrets   The Legislative Analyst’s Office has concluded after two years of research that the Department of Fish and Game and other California state agencies “keep too many documents secret when they buy land and do not have consistent standards to ensure the public is paying reasonable prices,” reports the San Jose Mercury News.

Public Information
    Day labor employers   The California Newspaper Publishers Association, the Los Angeles Times and the San Diego Union-Tribune have appealed a judge’s ruling barring the City of Vista from disclosing a list of those who have registered as an employer of day laborers.  The ACLU obtained a temporary restraining order in September against release of the names to protect the employers’ privacy.

Records Released Reveal . . .
A city official denied pension credit for time she never worked; an admired police chief’s retirement marred by an issue of possible pension-spiking; a legal aide to the Insurance Commissioner secretly helped regulated companies in their lawsuit against his boss; Long Beach subsidies for a summer Sea Festival run by a private association were wasted, according to an online news site.

Open Meetings
    A Fate Worse Than Indictment?  The Orange County DA won’t prosecute four members of the Capistrano Unified School Board who accepted his report that over a six-month period they discussed business unlawfully in closed session and otherwise violated the open meeting law dozens of times. But wait—OC Weekly reports that the county Republican Central Committee “did something unprecedented by unanimously voting to call for the resignations of four of its own elected officials who sit on the Capistrano Unified School District Board.”

Whistleblowers
    Dummy up!   The Bush administration isn’t the first to punish insiders who go public  with inconvenient facts.  But, James Sandler tells Salon, it’s the most ferocious in resisting Congressional efforts to protect them.