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Education and Training in Relation to the City’s Whistleblower Law

Testimony of Irum Taqi on Behalf of the New York Civil Liberties Union before The New York City Council Committee on Oversight and Investigations Regarding Education and Training in Relation to the City’s Whistleblower Law, Int. No. 59

My name is Irum Taqi. I am Legislative Counsel at the New York Civil Liberties Union (‘NYCLU’). The NYCLU is the New York affiliate of the American Civil Liberties Union. The NYCLU is devoted to the protection and enhancement of those fundamental rights and constitutional values embodied in the Bill of Rights of the U.S. Constitution and the Constitution of the State of New York.

Most of us would agree with the proposition that it is in the public interest that employees in New York City disclose waste, fraud, abuse, corruption and criminal activity to appropriate authorities. And most of us, certainly the sponsors of Int. No. 59, would consider it a duty to make such disclosures. This duty is so important that our courts have recognized constitutional protections that are intended to shield from retaliation those who blow the whistle on corrupt and dangerous conduct.

Under the First and Fourteenth Amendments to the federal Constitution, state and local government officials are prohibited from retaliating against whistleblowers that speak out on matters of ‘public concern.’ There is, however, no comprehensive federal, New York State or New York City law that prohibits employers from retaliating against employees who disclose potential governmental violations of law. Consequently, the patchwork of existing remedies provide insufficient protections to City employee whistleblowers against retaliation.

The inadequacy of existing whistleblower protections for City employees can have devastating consequences, as illustrated by a recent New York Times report on the investigation of the City’s Department of Environmental Protection (DEP). In 2001, the DEP pled guilty to violating environmental laws, admitting that from 1998-2000 the agency knowingly discharged mercury-contaminated water into an upstate reservoir and allowed employees to use machinery contaminated with polychlorinated biphenyls, or PCB’s, for over a decade without protection. (Among the health affects of PCB’s are skin ailments, reproductive disorders, liver disease and others. PCB’s are a suspected human carcinogen and a known animal carcinogen.)

The judge in the case took the extraordinary step of appointing an outside monitor to investigate the DEP and supervise its work. The monitor’s three-year investigation found that Thomas Hook, a veteran manager in the agency who was responsible for all operations in the city’s upstate water supply and who supervised more than 370 employees, reportedly castigated employees for trying to report spills. The U.S. Attorney’s Office also found that Mr. Hook’s conduct contributed to ‘‘a climate of fear, intimidation and neglect’ that encouraged the covering up of violations.’

If even one of the 370 employees supervised by Mr. Hook felt protected from the consequences of retaliation, perhaps he or she might have come forward to expose the violations of enviornmental laws by the DEP, and avert what could have resulted in a public health emergency.

This incident is instructive for policy makers, and appears to be precisely the type of occurrence that the sponsors of Int. No. 59 would seek to prevent. Int. No. 59 requires the City’s Department of Investigation (DOI) to develop educational materials and provide training to officers and employees of City agencies regarding whistleblower protections in the City’s administrative code. While the NYCLU applauds these training and public education efforts, our concern is that the Council has not addressed the inherent weaknesses in the City’s whistleblower statute.

The City’s current whistleblower law provides inadequate protection to City employee whistleblowers. Specifically, the law fails to provide a standard for determining the validity of an employee’s complaint of retaliation. It also does not provide the DOI authority to provide interim relief for whistleblowers, or power to enforce remedial action if it finds that an employee was retaliated against. These and other measures that would enhance protections and enforcement mechanisms in the whistleblower law were proposed in 2002 (Int. No. 63) but were not included in the legislation enacted in 2003.

The NYCLU therefore urges the Committee to consider introducing additional legislation for employees who blow the whistle on the wrongful operations of city government. Accordingly, we offer the following recommendations to broaden the protections afforded whistleblowers under the City’s whistleblower law.

Provide a standard for determining the validity of a complaint

The City’s whistleblower law fails to include the standard to be used by the DOI in determining the validity of an employee’s complaint of retaliation. Int. No. 63 had required the DOI to determine whether an employee’s disclosure was a ‘motivating factor’ in the adverse employment action. Without a standard, there is no guidepost against which a whistleblower’s claim of retaliation can be measured. The NYCLU therefore urges the Committee to incorporate the ‘motivating factor’ standard in the City’s whistleblower law as a guide in determining whether retaliation has occurred.

Expand the DOI’s authority to protect whistleblowers

Allow the DOI to determine appropriate interim protection pending conclusion of its investigation

Int. No. 63 enhanced the authority of the DOI to protect whistleblowers by requiring that an agency head immediately reinstate an employee (or direct other remedial action) upon the recommendation of the DOI, pending conclusion of its investigation. Current law is silent as to the interim relief to which the employee retaliated against should be entitled. The authority to provide immediate interim relief to the victim of retaliation based upon a finding and recommendation by the DOI is an essential protection for employees who expose wrongdoing, and should be required under the City’s whistleblower law.

Allow the DOI to direct remedial action upon conclusion of its investigation

Under current law, after the DOI finds that retaliation occurred and makes a recommendation that remedial action be taken, it is up to the head of the City agency to determine whether to take the remedial action. If the DOI determines that the agency head failed to take remedial action, the DOI then ‘consults’ with the agency head who is given ‘reasonable opportunity’ to take remedial action. If the agency head still fails to remedy the matter, the DOI reports its findings and the lack of remedial action to the Mayor or the city officers who appointed the agency head. It is then up to them to ‘take such action as is deemed appropriate.’

Consequently, the DOI is virtually powerless if an agency guilty of retaliation ignores the recommended remedial action. The NYCLU suggests amending the whistleblower law to give the DOI the authority to determine whether remedial action should be taken, and to direct that City agencies comply immediately with the DOI’s recommended remedial action. We also urge the Committee to incorporate a strict timetable as set forth in Int. No. 63, dictating when remedial action must be taken once the DOI has determined that a retaliatory employment action occurred. The NYCLU further recommends imposing a timeframe in which the DOI is required to complete its investigation.

Allow the DOI to recommend appropriate penalties

Int. No. 63 also gave the DOI authority to recommend penalties against the officer or employee found to have retaliated against an employee whistleblower, and required the Mayor or agency head to comply. On this issue, the existing whistleblower law is vague: ‘violation of this section may constitute cause for administrative penalties.’ The law should make clear under what circumstances penalties may be imposed against those who violate the City’s whistleblower law.

Broaden categories of employee communications that are covered under the city’s whistleblower law

Under section 12-113(b)(1) of the City whistleblower law, an employee is protected from retaliatory employment actions only if he or she discloses ‘information concerning conduct which he or she knows or reasonably believes to involve corruption, criminal activity, conflict of interest, gross mismanagement or abuse of authority by another city officer or employee, which concerns his or her office or employment, or by persons dealing with the city, which concern their dealings with the city.’ We would suggest that the employee communications not be restricted to time, place, form, motive or context. Rather, we propose the following language:

No officer or employer of the City or persons who do business with, or receive benefits from, the City shall take any adverse personnel action against an employee because the employee does any of the following:

  1. Discloses, threatens to disclose or is about to disclose to a supervisor or to a public body, an activity, policy or practice of the employer, a co-employee or another employer, that the employee reasonably believes to involve corruption, criminal activity, conflict of interest, violation of law, gross mismanagement, waste of public funds, or that the employee reasonably believes is incompatible with a clear mandate of public policy;
  2. Provides information to, or testifies before, any public body conducting an investigation,hearing or inquiry into corruption, criminal activity, conflict of interest, violation of law, gross mismanagement, waste of public funds, or that the employee reasonably believes is incompatible with a clear mandate of public policy;
  3. Assists or participates in a proceeding to enforce the provisions of this law; or
  4. Objects to, opposes or refuses to participate in any activity, policy or practice which the employee reasonably believes to involve corruption criminal activity,conflict of interest, violation of law, gross mismanagement, waste of public funds, or that the employee reasonably believes is incompatible with a clear mandate of public policy.

Provide private right of action for whistleblowers

Finally, we would urge the Committee to provide a private right of action that permits whistleblowers to commence a civil action in court and to seek all remedies available to prevailing plaintiffs in common law tort actions, as well as to obtain, where appropriate, injunctive relief restraining the continued violation of the whistleblower law. Further, a City employer should not be able to require an employee to waive, as a condition of settlement, his or her right to reasonably engage in whistle blowing conduct protected under the City’s whistleblower law.


The NYCLU supports Int. No. 59, which would increase awareness and understanding of the existing provisions of the City’s whistleblower law, but we find it to be an inadequate legislative response given the shortcomings in the City’s existing whistleblower law. We therefore urge the Council to introduce further legislation that broadens the protections and recourse afforded city employee whistleblowers.

The consequences of employer retaliation against a whistleblower can be dire. Jobs may be lost, careers ruined, and the safety of the public may be compromised. It is sound public policy not to permit retaliation against persons who act courageously to protect the public good by disclosing the harmful conduct of their employers. We encourage the Committee to make those protections broader for the protection of both the whistleblowers themselves and the public in general.

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