The Whistleblower's Dilemma

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When Chris Roberts got a face full of herbicide while on the job as an assistant gardener in a West Harlem playground his managers at the New York City Parks Department laughed. When he dropped out of the herbicide applicator training program because of animal safety concerns, his coworkers chuckled.

But when Roberts began reporting hazardous chemical storage and unsafe spraying procedures to his supervisors and to the city's Department of Environmental Protection, his bosses seem to have lost their sense of humor.

And Chris Roberts lost his job.

“It was really blatant,” he says of his termination, which he claims cam without an explanation and happened only days before he would have been eligible for increased workers rights. “It sent a message that if you're speaking out, it's going to catch up and they'll get rid of you.”

Parks Department officials say they fired Roberts because of his poor job performance and erratic attendance. They did not, however, provide specific examples. Roberts says he never received a job performance evaluation, nor was he ever placed in the department's program for employees with high absentee rates.

Roberts is now preparing to file a lawsuit against the city, claiming that his supervisors violated the state's civil service law, which protects government workers who report violations that endanger public health to another agency. He hope his tactic will get him his job back, because it's his only chance: Neither the state nor city whistleblower laws offer him any protection.

Some members of the City Council are now trying to change that. Helen Sears of Queens has drafted a bill to add protections to the city's whistleblower law. The Council Committee on Standards and Ethics, which she chairs, plans to hold a public hearing on the proposed amendment in September. “Whistleblowers need to feel a strong sense of protection when they come forward to expose corruption,” she says.

Sears and her bill's supporters–there are seven signed on so far–hope to encourage more witnesses to wrongdoing to come forward. The current city whistleblower law, written in 1984, offers some protections for employees of mayoral agencies who report on-the-job incidents of corruption, criminal activity and conflict of interest. Those complaints must be filed with the city's Department of Investigation, Public Advocate, comptroller or City Council members. Roberts ha no such job protection, because he had made his report on a job safety violation, and made it to the Department of Environmental Protection.

Sears' legislation would allow whistleblowers working at any agency or institution that is at least partially funded by the city to register concerns with any government official or agency authorized to monitor government performance. Those concerns could include gross mismanagement, waste of public funds and violations of any law. The bill also calls for confidentiality for complainants–something that is not assured now.

“We need to do more to encourage a climate in which employees feel free to discuss all aspects of their jobs,” says Beth Haroules of the New York Civil Liberties Union. The civil rights group has long advocated for stronger employee protections, and it has started to make some progress: In June, the group won a lawsuit that challenged gag-order policies, put in place by the Giuliani administration, that prohibited employees from talking to the pres and the general public about misconduct in city agencies.

The next step, says Haroules, is changing the city law. Figuring out exactly how, however, has proven difficult. The NYCLU has yet to support Sears' bill, hoping to see broader First Amendment rights for whistleblowers. Haroules believes that any city worker who speaks out about corruption publicly–not just to the prescribed city agencies–ought to be protected by law.

Public Advocate Betsy Gotbaum is also calling for a more comprehensive education program and more feedback on its inquiries by the city Department of Investigation.

But DOI fears these kinds of changes might make things worse. “We may start having reports falling into the cracks with agencies who do not know how to handle a report and actually place the whistleblower at risk,” says Alain Burgeois, the agency's first deputy commissioner. The current law is effective and well-used, he says, citing the fact that the department receives on average 8,500 complaints a year.

Proponents of change still remain hopeful. “The culture in the past has been one of complete control over the discussion of information,” says Haroules. “But the Bloomberg administration is more attuned to the employee as a watchdog, a guardian. It's just a question o clarifying the rules of the game.” ?

Carolyn Szczepanski is a Queens-based freelance writer.

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