Part IV: Whistling Dixie.
Brookline’s Whistleblower Policy
By Arshag A. Mazmanian
Town Administrator Kelliher’s Memorandum of Jan. 17, 2007 to “All Town Employees” included a copy of the Whistleblower Policy with a brief description, adding: “As this is a new policy, please read it thoroughly to become familiar with your rights under the policy and the state law.” As explained below, a copy of the Whistleblower statute should have been provided for employees to understand their rights not addressed in the new Policy.
The penultimate (my favorite word) paragraph of the Policy references the right of an aggrieved employee to sue for a violation of the Whistleblower statute. But the Policy fails to enumerate the remedies available in a civil action which may include in addition to reinstating the employee’s position “(4) compensating the employee for three times the lost wages, benefits and other remuneration, and interest thereon; and (5) order payment by the employer of reasonable costs, and attorneys’ fees.” (G.L. Chapter 149, Section 185(d).)
In fairness to the employer, if the court finds the employee’s action “was without basis in law or in fact, the court may award reasonable attorneys’ fees and court costs to the employer.” (Section 185(e)(1).) But the employee can avoid this by voluntarily dismissing the legal action by “exercising reasonable and diligent efforts … within a reasonable time after determining that the employer would not be found liable for damages.” (Section 185(e)(2).)
This failure in the Policy would seem to contravene the obligation of the Town as employer to “conspicuously display notices reasonably designed to inform its employees of their protection and obligations under this section [185] and use other appropriate means to keep its employees so informed.” (Section 185(g).)
Instead, the Town’s Whistleblower Policy includes a provision that is admittedly (see Part III) not addressed in the statute regarding “False Accusations” that would apparently permit retaliatory action against an employee “who has accused another of engaging in unlawful activity has made the false accusation knowingly or without any good faith basis thereof [and] the accuser will be subject to disciplinary action, up to and including termination of employment.” (Third paragraph from the end of the Policy.)
The impact of this “False Accusations” paragraph may be at odds with the policy behind the Whistleblower statute to provide an employee to conscientiously, reasonably, raise the matter of certain possible violations of law by supervisors or others in Brookline.
| Resource Center |
| Massachusets Whistleblower Statute |
| Brookline’s Anti-retaliation Policy |
| Town of Grafton’s Policy |
| National Whistleblower’s Center |
The small town of Grafton in its draft Whistleblower Policy (see Part II) encourages employees to report improper conduct and goes on to provide for a prompt investigation of such, keeping “the identity of reporting employees confidential to the extent possible under the Law, unless the employee authorizes the disclosure of his or her identity in writing. After an investigation has been completed, the employee … shall be advised of the summary of the results of the investigation, except personnel actions taken as a result of the investigation may be kept confidential.”
But Brookline’s Whistleblower Policy does not encourage its employees to report improper conduct and makes no comparable provision for an investigation.
The small town of Grafton’s Policy also provides: “The Town will, to the extent it considers practical, provide training and education on the Whistleblower Policy. Town Administrators and supervisors are responsible for insuring that this policy is fully implemented within their areas of responsibility.” It concludes with this: “Violations of this policy may result in disciplinary action.”
Again, Brookline’s Whistleblower Policy contains no comparable language.
To Brookline’s employees, the emphasis in its Policy seems to be: Is it worth the risks involved to blow the whistle on alleged improper conduct? The Whistleblower statute calls for the employee to act “reasonably” in blowing the whistle. But the Town’s Policy stresses “False Accusations.”
Was this intentional?
If a Town employee becomes aware of (alleged) improper conduct, he or she should read and study not only the Whistleblower Policy but also the Whistleblower statute. Perhaps the conscientious employee might also consult with an attorney versed in employment law to help establish that he or she would be acting “reasonably” within the meaning of the statute in blowing the whistle. Otherwise the employee may end up Whistling Dixie.
Part V will “grade” the performances of the HR Director, the HR Board, the Selectmen, the School Committee and other Town officials that played, or should have played, a role in establishing this Policy rather than a policy more in compliance with the letter and spirit of the Whistleblower statute.
Isn’t Brookline more exceptional and sophisticated than the small town of Grafton?
