“Disclosing wrongful acts is painful,” Payne told me. A former procurement director for Chief Financial Officer Natwar M. Gandhi, he raised concerns in 2008 about the multi-million dollar lottery contracting process. He went to the CFO’s internal integrity unit, the city’s inspector general, the auditor and the attorney general. He also spoke with D.C. Council member Jack Evans (D-Ward 2), who, as head of the Committee on Finance and Revenue with oversight of the CFO, initially asked a staffer via e-mail: “What do we know about Eric Payne?”
“Shouldn’t the first question have been ‘Did anything improper happen here?’ or ‘Do we need an independent, outside investigation of the lottery?’” said Payne.
Evans didn’t hold a hearing on issues raised by Payne and others until 2012 — three years after Payne was fired and two years after he filed a lawsuit. But the OAG has yet to settle Payne’s case.
“No one is going to say anything in this environment,” Payne continued. “Who wants to take a chance on doing the right thing but not being able to support your family?”
Muzzling, through retaliation, simply creates fertile ground for mismanagement and corruption. Equally important, it hurts D.C. residents. How many Office of Tax and Revenue workers, out of fear of reprisal, sat by as horrific things were done to poor and elderly property owners?
“It’s having a chilling effect,” lamented Kristopher Baumann, head of the Fraternal Order of Police, adding that Rodriguez, Zabavsky and Fetting weren’t “malcontents”; they had been nominated for awards, including Officer of the Year by the Washington Regional Alcohol Program.
But in 2010, they made several disclosures, including before the council’s Committee on the Public Safety and the Judiciary, about the Metropolitan Police Department’s use of incorrectly calibrated breathalyzer equipment, according to court documents. Hundreds of drunk-driving convictions were in jeopardy. The officers also alleged that they had been advised to provide false court testimony. Ultimately, 400 convictions were questioned and the city spent nearly $400,000 in settlements because of the faulty equipment.
After the officers’ disclosures, OAG lawyers asked the MPD to investigate Rodriguez and Zabavsky for a year-old harassment complaint and Rodriguez and Zabavsky for allegedly incorrectly processing a urine sample. Police internal affairs recommended Rodriguez be terminated. A hearing panel concluded there had been no misconduct, however. Nevertheless, OAG lawyers made it known in conversations with MPD officials that the officers wouldn’t be supported to lead a newly created drunken-driving unit, according to court documents.
In 2011, with the union’s backing, the officers filed a lawsuit. On Aug. 21, Superior Court Judge Anthony Epstein dismissed their case without permitting a jury trial — although city law entitled them to one. The judge ruled that the officers had not participated in “protected disclosures” and that neither the OAG nor MPD had engaged in retaliation.
“[That] order is a reminder that one of the best enablers of public corruption and mismanagement in the District is the D.C. Superior Court,” said Baumann. The officers are appealing.
OAG spokesman Ted Gest said, “We believe that Judge Epstein’s painstakingly 57-page opinion is absolutely correct in his analysis both of the facts and of the applicable statute.” That’s one reason why the city needs an elected attorney general.
If the judge is correct, help us. We have a huge problem that requires the council’s immediate attention, especially if it’s serious about employees being a first-line defense against corruption. The council should review all whistleblower cases for the last three years, more clearly define “protected disclosures,” remove any ambiguity about whether retaliation must follow disclosure within a certain time period, make clear workers can’t be considered insubordinate when they refuse to comply with illegal acts and remove judicial discretion regarding jury trial.
Finally, if the council wants to save employees the expense of fighting an obstinate OAG and confused judges, it could further empower the city’s new Board of Ethics and Government Accountability. The ethics act gave the board “authority to treat certain types of retaliatory misconduct as it would any Code of Conduct violation, with all of the attendant sanctions, including fines of up to $5,000 per violation,” said the board’s director, Darrin Sobin, in an e-mail to me. “I intend to pursue such matters in due course.”
The ethics board isn’t on the list of mandatory agencies to receive reports of alleged retaliation; it should be. Given what we know, Sobin and his board may be the only help for whistleblowing employees and the only hope for an honest and ethical D.C. government.