Whistle-Blower Protection Advances In Senate

Snowden being interviewed by Glenn Greenwald and Laura Poitras on June 6, 2013.
Snowden being interviewed by Glenn Greenwald and Laura Poitras on June 6, 2013.

RICHMOND — Whistle-blower protection moved forward this week after a Senate committee voted 36 to 1 in favor of House Bill 728, which would make it illegal to terminate an employee for reasons related to that person’s exposure of waste, fraud or abuse.

“Intimidation and threats are a problem when it comes to quashing the willingness of a public employee to look after the taxpayers,” said Delegate L. Scott Lingamfelter, R-Woodbridge, who introduced three bills on this topic — House Bills 728, 731 and 739. “So I think going forward, my intent is to correct a defect in the law because under current law it’s not clear what a court does when there is a ‘mixed motive’ for the dismissal of an employee.”

The legislation is important to people like Henry Lewis, a former Alexandria architect who won his whistle-blower case against the city last year, after a jury decided his 2011 termination violated the Virginia Fraud Against Taxpayers Act, passed shortly before Lewis lost his job. Lewis is represented by attorney Zachary Kitts, who claims on his website to be the principal architect behind the 2011 amendments to the FATA.

Kitts said he told legislators, including Lingamfelter, he thought the legislation was needed.

“There’s a risk that a defendant can say ’99 percent of the reason that we terminated this person’s employment was because they complained about fraud against the government,’” Kitts said, “but they could say one percent was a lawful reason and they could win the case based on that.”

Lingamfelter repeated Kitts’ assertion that whistle-blowers can be unjustly fired if the person who fired them for exposing fraud also claimed to have legitimate reasons to do so. Moreover, he introduced HB731, which could shift liability onto the agent who illegally terminates a whistle-blower, in addition to the institution itself.

HB731 was defeated twice in the Courts of Justice Senate committee by tie votes that fell, by the majority, along party lines. Different members failed to register votes for each session. However, if the committee had voted on the bill again — and all members voted the same as they did previously — the bill would have passed, making supervisors liable for illegal terminations, in addition to the institutions they represent. On the bill’s final consideration, one member was not present: Sen. Thomas K. Norment, R-Williamsburg. Although Norment favored the bill, the absence of his vote caused its defeat. Norment did not respond to inquiries regarding his absence.

“An abusive supervisor can escape any judgment in a court and it’s the city, town or county that bears the full cost,” Lingamfelter said. “Shouldn’t that supervisor bear some of the wrongdoing, since they’re the one who committed it?”

Director of General Services for the City of Alexandria Jeremy McPike is one such supervisor, according to Lingamfelter. McPike made the recommendation that Lewis be terminated as city architect during construction of a police station. He also ran against Lingamfelter in the 2013 election for a seat in the House.

“This language in this legislation coming from Lingamfelter doesn’t surprise me at all,” McPike said. “He invited a trial attorney to our debate last fall to try to intimidate me. He sat in the front row. It’s petty politics.”

The legislation, as introduced by Lingamfelter, states that a whistle blower may not be discharged, threatened or otherwise discriminated against, “in whole or in part,” for reasons connected to the exposure of fraud, waste or abuse.

“If it were in a township that I was in charge of, (McPike) wouldn’t have his job,” Lingamfelter said, “because I think that anybody who intimidates someone whose greatest sin is they’re just trying to point out taxpayer fraud should not be supervising other people.”

McPike said Richmond is beginning to operate like Washington, D.C.

“It’s legislation driven, frankly, by the trial attorneys again,” McPike said. “Obviously, they’re in cahoots with one another.”

Kitts said one of the bills adds the words “in whole or in part” to the motivation section of the statute.

“Any employee shall be entitled to all relief necessary if that employee is discharged, demoted, suspended, threatened, harassed, or in any other manner discriminated against,” Kitts said, “’in whole or in part,’ because of lawful acts done by the employee.”

The purpose of existing fraud and abuse law is to “make whole” any person fired in retaliation for exposing fraud. When Lewis won his case against the city under the new law, he was then entitled to recovery in the form either of reinstatement of his job as city architect, or front-pay to match the number of years he could have worked; however, he had to appeal for that money. The city was denied its request for an appeal by the Virginia Supreme Court. Instead, the court heard Lewis’ appeal for owed equities and benefits pay.

At the hearing, the court asked Alexandria City Attorney Jonathan Mook how his city can ignore language in the FATA that says a person fired in retaliation “shall” be compensated for lost wages and benefits.

“How can you ignore the ‘shall’ in the law?” Justice William C. Mims asked. “How can reinstatement or front-pay not be required to make Henry Lewis whole?”

Mook said Lewis is not entitled to back pay because any estimations on how long Lewis might have worked for the city would be speculative, to which Mims responded by asking, “Wouldn’t any estimation be speculative?”

Lingamfelter’s legislation would turn the city’s defense into an argument against itself.

Mook told the court that Lewis was fired for at least two reasons: insubordination, or failing to maintain a harmonious work relationship with co-workers and supervisors; and Lewis’ refusal to sign false invoices at McPike’s request. Therefore, the city’s estimation of how long Lewis might have stayed on differs by at least seven years when compared to what Mook called “abusive” and “punitive” estimations by Lewis and Kitts.

Lingamfelter agrees there is an effort to politicize his whistle-blower legislation.

“I know that people like (Charlottesville Democratic Delegate David) Toscano want to politicize this. I got it. I understand that. That goes on down here all the time,” Lingamfelter said.

Toscano did not respond to requests for comment.

Co-Chairs of the Senate Committee on Courts of Justice Henry L. Marsh, D-Richmond, and A. Donald McEachin, D-Richmond, did not respond to requests for clarifications as to whether the bill would be voted on for a third time early this week.

HB728 awaits the signature of Democratic Gov. Terry McAuliffe. HB739 was left in committee.

This story appeared in The Virginia Free Citizen and Henrico Citizen.

House GOP Debates Medicaid Expansion Rejection Methodology

Delegate James Massie, R-Richmond
Del. James Massie (R-Richmond) said “private market incentives” will prevent the public from abusing the healthcare system.

RICHMOND – House Republicans are echoing national GOP rhetoric in rejecting the Medicaid expansion strongly backed by Democratic Gov. Terry McAuliffe.

Delegate James Massie, R-Richmond, said Obamacare could likely “implode.” Massie said he handles the “business side” of Medicaid reform.

“I would say (it’s not going) particularly well so far,” Massie said with a laugh. “My opinion is if you think Obamacare was hard signing up for on the website … wait till you try to use it.”

Massie is a member on the Medicaid Innovation and Reform Commission, the committee tasked with reviewing and recommending reform proposals affecting the Virginia Medicaid and Family Access to Medical Insurance Security programs.

Massie said federal government inefficiencies lead to fraud and waste, which compromise up to 30 percent of its budget — a statistic he says he believes would increase if Medicaid is expanded in Virginia.

“If we do anything in the state of Virginia,” Massie said, “it’s going to look like private options. In other words, we’re going to take the money from the federal government that will allow these uncovered people to buy their own health insurance.”

Massie said Medicaid is abused because people go to the doctor with their Medicaid cards, and let the doctors do whatever needs to be done:

“I have no equity in the decision — no financial incentive to do the right thing, on controlling what you do to me, how much of it that you do, what it costs — much less, my health — taking care of my own self,” Massie said.

Massie also said studying other states could help the MIRC decide how to react to Medicaid expansion in McAuliffe’s budget proposals.

Arkansas and Iowa, for example, have not gone along with the government management of Medicaid expansion. Those states instead offer a “taxpayer recovery fund” that is supposed to grant federal money to the uninsured so they can afford to pay into private insurance plans.

Sen. John Watkins, R-Midlothian, proposed a similar taxpayer recovery fund, calling it a “pro-business, common sense solution.”

Massie said he was not familiar with the specifics of Watkins’ proposal.

The split in opinion hinges on a disagreement of whether or not to take any federal funds, which must be debated once a House budget is proposed.

Speaker of the House William Howell, R-Fredericksburg, said Watkins’ proposal — which still has not passed the finance committee — is Obamacare’s Medicaid expansion by another name.

“Medicaid and Obamacare expansion are poisonous words,” Massie said. “So (Watkins is) messing with the semantics, or he’s trying to get the right semantics right to create a pass.”

Massie said “private market incentives” will prevent the public from abusing the healthcare system.

“(People) are going to have to pay some money for the coverage,” Massie said. “They’re going to have co-pays. They’re going to have rewards for healthy living. They’re going to have work requirements — and work search requirements.”

Massie says the Republican Party’s proposal will incentivize the public to make healthy choices and good business decisions when choosing insurance.

“Not just ‘I don’t care. I go in. Give me everything,” Massie said, “because it doesn’t cost me anything.’”

A House budget must be produced containing each proposal to be debated against McAuliffe’s submitted budget plan.
Massie said the MIRC is looking for “the Virginia way.”

“If we find ‘the Virginia way,’” Massie said, “it’s going to look a whole lot more like private market insurance, rather than Medicaid.”

Watkins did not respond to requests for comment.

This story appeared in The Virginia Free Citizen.

Grant Would Fund Active-Shooter Training

RICHMOND – A bill is advancing through the House that would grant “active shooter” training funds to smaller police forces, which currently have no budget to accommodate the over-time pay to prepare for mass shootings.

Delegate Mike Webert, R-Marshall, said the Fauquier County Sheriff Department recently integrated an active shooter program. To do so, he said the department brought in experts from Fairfax, which has a larger police force. “(Fairfax) has one of the best task forces in the nation,” Webert said. “A lot of their guys end up training our smaller localities. So, we want to be able to provide our localities with the tools to help keep our children safe.”

Webert said the initial training cost Fauquier County money that was not in the police budget, which is why he introduced legislation calling for a $500,000 training grant. His bill would grant funding up to $50,000 per locality to provide overtime pay for police officers to be trained to respond in the event of a shooting.

Lt. James Hartman, of the Fauquier County Sheriff Department, said his department is “very much in favor of the bill and (supports) it 100 percent.”

Hartman said it is obvious the active shooter and training grant fund is needed in jurisdictions like Fauquier County. He described his department as “too small to be big, and too big to be small,” adding that the force has about 125 sworn officers covering patrols and stationed in schools. Hartman said overtime pay for active-shooter training exceeds the police budget. He said over-time costs between $16,000–$17,000 for each training session and consists of about 22 officers.

The training covers response tactics leading to the neutralization of an active shooter. Usually, Hartman said, his department will go into a school when students are out and stage a simulation using actors. County schools even have color-coded doors so officers easily can communicate their locations from within a building. Although his department trains for the first critical minutes of a public school incident, Hartman said “active shooter” applies to more than just school shootings. “Active shooter incidents across the country mainly have just been in schools,” he said. “But we’ve also seen active shooters in workplaces, such as the Navy Yard shooter (and) movie theaters.”

Hartman said his department already has conducted four training sessions and had a fifth planned in January.

Chief John Venuti of the VCU Police Department would not discuss specific training. “The VCU Police Department provides active shooter training to the campus community,” Venuti stated in an email. “We do not discuss specific information pertaining to training, technology or tactics.”

Webert said he hopes to convince the appropriations committee to create a grant from the currently unappropriated federal fund, which he said is about $15 million.

This story appeared in RVA News and Emporia News.

Trial Date Set For McDonnells

Bob and Maureen McDonnellRICHMOND — A trial date has been set for former Gov. Robert F. McDonnell and his wife Maureen for July 28, following a Friday arraignment at a Richmond federal courthouse. Both pleaded not guilty to all 14 charges.

Federal authorities say the McDonnells repeatedly asked Johnnie Williams, a Richmond-area businessman, for loans and gifts totaling more than $165,000. The 43-page indictment alleges the McDonnells asked for money, clothes, golf fees, equipment, numerous trips and private jet rides in exchange for access to political clout.

Prosecutors allege that McDonnell helped promote Anatabloc, the company’s new product. The indictment states McDonnell pitched Anatabloc during an official meeting March 2012 with the secretary of administration in which they would discuss the state employee health plan.

“[Robert McDonnell] pulled some Anatabloc out of his pocket,” the indictment states, “and told the secretary of administration and one of her staff members that Anatabloc had beneficial health effects, that he personally took Anatabloc and that it was working well for him.”

The indictment states Maureen McDonnell traveled with Star Scientific in October 2011, speaking favorably of the product at corporate functions.

The report states that under Virginia. law, certain state officials and employees – including the governor and members of his staff – are required to annually file a standardized disclosure statement of their personal economic interests on or before Jan. 15 each year.

The indictment describes specific charges against Maureen, stating she intentionally avoided annual reporting requirements by transferring a total of 5,000 Star Scientific shares into newly opened brokerage accounts in the names of her five children.

“[Maureen McDonnell] further informed the broker that these transfers had to occur before year-end in order to avoid reporting requirements related to the ownership of Star Scientific stock,” the report states.

Federal documents state Williams took Maureen on an April 2011 shopping spree in New York City, in exchange for a seat beside McDonnell at a political event. The document states Williams spent about $10,999 at Oscar de la Renta, $5,685 at Louis Vuitton and $2,604 at Bergdorf Goodman, and later sat next to the governor.

According to the indictment, Williams sought independent studies in July 2011 to lend credibility to Star Scientific’s new product, Anatabloc. But when he approached the Tobacco Commission – a state research institution – it refused to fund the research as requested by a for-profit entity.

Among the gifts listed in the indictment was a custom Rolex watch inscribed with the words “71st Governor of Virginia.” Maureen McDonnell met privately with Williams to discuss ways the state could research Star Scientific’s Anatabloc. The indictment alleges Maureen complimented Williams’ watch, and asked him to purchase a similar watch she could give to her husband. Williams purchased the watch. On the same day Williams asked what she wanted inscribed on the watch, Maureen scheduled herself to attend an Aug. 30 luncheon with state researchers.

Text messages from 2012 between Bob McDonnell and Williams appear throughout the document, discussing share prices of Star Scientific.

“Good announcements lately,” McDonnell told Williams in a text, according to prosecutors. “Stock looks good. Hope all is well. You and [Williams’ wife] enjoy the 4th of July.”

In a text message sent to McDonnell, Williams reassured McDonnell that Star Scientific shares were continuing in a favorable trend.

McDonnell denied helping Williams in a public address this past week, and said he has done nothing illegal; adding that his behavior is characteristic of many elected officials in his position.

“I will use every available resource and advocate that I have,” McDonnell said, “for as long as it takes to fight and prevail against these false allegations and the unjust overreach of the federal government.”

Judge David Novak said Friday the McDonnell case will be tried in the courtroom and will not be tried in the media and ordered attorneys on both sides not to comment publicly on the case.

“The gamesmanship with the media ends now,” Novak said.

This story appeared in Virginia News Feed, Virginia Business, The Suffolk News-Herald, Northern VA Times, The Centreville Independent, Williamsburg Yorktown Daily, Emporia News, Gazette.net, The News Journal, and AltDaily.

Privacy Concerns Table Search, Seizure Bill

Mike Webert
Del. Michael Webert (R-Marshall) sponsored a bill that would have violated consumers’ Fourth Amendment rights.

RICHMOND — A bill that would give Virginia police power to search private computers without a secondary search warrant was tabled after a committee determined the bill’s language failed to protect Fourth Amendment rights.

According to Delegate Mike Webert, R-Marshall, who is chief patron of the bill, the purpose of the bill “is not more money and power.”

Webert said his bill was meant to “streamline the process” of searching through a citizen’s computer, by eliminating the need for two warrants.

“A lot of times, what will happen is somebody (police) will go, and they will confiscate a computer looking for child porn – then they need to go and get another search warrant to search inside the computer,” Webert said. “We just wanted to streamline the process so that they (police) could go ahead and look into the computer.”

The bill first became problematic when it was written to include entire public networks or households, which would have enabled immediate searches upon seizure of any number of personal computers in a household.

After narrowing down the bill’s language to apply only to the personal computers of a certain individual, the House criminal law subcommittee determined there still were Fourth Amendment problems, which only can be addressed during the 2015 session, once the language is changed again.

“It has nothing to do with giving (police) more power,” Webert said in a mid-January interview. “It has nothing to do with that.”

He later said he highly doubts state police would have requested the bill with the intention of subverting Fourth Amendment rights.

However, Lt. James Hartman of the Fauquier County Sheriff Department said the bill would “absolutely” give police more power to investigate computers.

Hartman said the legislation would afford his department new powers to solve computer crimes including fraud and embezzlement, but “first and foremost,” he said the legislation would expedite police power to prosecute crimes against children, such as child sex abuse.

“We don’t have a computer lab here at Fauquier,” Hartman said, “so we almost always rely on partners in jurisdictions next door, and other counties to help with these examinations.”

The bill went before the Joint Commission on Technology and Science in December, which addressed Fourth Amendment and privacy issues. Present at the discussions were state police, the commonwealth’s attorney, prosecutors, the attorney general’s representatives and representatives from AOL, Facebook and Google.

Webert said he understands the corporations represented are known to be complicit with Fourth Amendment rights violations. He said the language of the bill changed dramatically after the corporate reps expressed privacy concerns.

The bill originally was requested of the McDonnell administration by the state police, said Delegate Kenneth R. Plum, D-Reston, as a means for expediting investigations into computer crime by removing the need for a secondary warrant to search a computer. Currently, probable cause must be established to obtain both warrants.

“It (the bill) dealt with a very practical problem they (police) had,” Plum said. “They sometimes needed to take it (a computer) to some place other than where they may originally have taken it for a warrant, and that was simply because I think the technology support they need, they don’t have every place in the state.”

Virginia already sends guns and drugs to labs without a second warrant, and Webert said computers are different. He said he wanted the language to reflect that

“To get gun particles off of a gun that had been fired doesn’t need a second search warrant,” he said. “Whereas computers – due to the new digital age – it’s the same but different.”

Webert said he wants to help police catch child pornographers, who keep illegal images on their computers. He said there were magistrates who complained about needing a secondary warrant to search through files on a suspect’s computer.

However, Webert also said he could not recall any specific case in which a magistrate said the procurement of a secondary search warrant became problematic to an investigation.

The resolution was to narrow the bill’s terminology to individual users on a given network and not to include the network of an entire business or household, Webert said.

“The language originally had ‘network,’” Webert said, “and (when) other people (are) using a network, there’s risk of invading their privacy.”

This story appeared in The Southwest Times and The Virginia Free Citizen.

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