|Court rules acting in good faith key to whistleblower protection|
After becoming aware of alleged bidding irregularities in the New York City Department of
Yes, according to the state’s highest court, the Court of Appeals, in Tipaldo v. Lynn.
The reason? The appointing authorities and the alleged wrongdoers were one and the same, and the actions of the employee, John Tipaldo, demonstrated good faith compliance with the law.
Tipaldo worked as DOT’s Acting Assistant Commissioner for Planning and Engineering. He discovered an alleged scheme by his then-superiors (Transportation Commissioner Christopher Lynn and First Deputy Commissioner Richard Malchow) by which a signage contract was to be awarded to Lynn’s acquaintance in violation of the city’s public bidding rules.
After an order was placed for the signs from Lynn’s acquaintance, a meeting was held informing DOT employees, including Tipaldo, that the signs had been purchased. The legality of the process was questioned by Tipaldo and other employees, and the DOT employees who were required to authorize the purchase refused to sign the authorization for the purchase. According to the court, the next day, Lynn and Malchow solicited bids from the public and after the delivery and installment of the signs, the DOT received lower bids as compared to the amount paid to Lynn’s acquaintance. Then Lynn and Malchow allegedly created a backdated memorandum indicating that the need for the signs was “urgent” and that the order must be placed immediately, rather than proceed through bidding.
Tipaldo informed his immediate supervisors about the alleged misconduct and, one or two business days later, reported the alleged improper actions to the DOT Office of the Inspector General. Tipaldo claimed that shortly after that, various retaliatory actions were taken against him by Lynn and Malchow. He was eventually removed from his position and demoted.
Tipaldo commenced a whistleblower action pursuant to Civil Service Law Section 75-b. Pursuant to that law, adverse action must not be taken against a public employee because the employee discloses to a governmental body information which he or she “reasonably believes to be true and reasonably believes constitutes an improper governmental action.” However, prior to the reporting, the employee must make “a good faith effort to provide the appointing authority or his or her designee the information to be disclosed and shall provide the appointing authority or designee a reasonable time to take appropriate action unless there is imminent and serious danger to public
A state Supreme Court judge granted defendants motion and dismissed the complaint, but the Appellate Division reversed on appeal. The Appellate Division found that “plaintiff’s good-faith efforts in the manner and timing of his reporting, first informally to his immediate supervisors, and then soon thereafter to the [DOI], satisfactorily met the requirements” of the Civil Service Law.
The Court of Appeals agreed with the Appellate Division. It determined that because the appointing authorities in the specific case were actually Lynn and Malchow, the
Although this case does not involve school district employees, the court’s decision applies to all public employees and thus school districts will be affected by this ruling.
Editor’s Note: A legislative bill (A.7951/S.4628) which passed both houses during the last legislative session would eliminate the requirement for a whistleblower to first report to the appointing authority. NYSSBA opposed the bill because such notification provides school districts and other public employers with the opportunity to make corrections and avoid unnecessary litigation. The bill has not yet been delivered to the governor.
New York court orders reinstatement of whistleblower
By on September 2, 2010Posted in Government Whistleblowers
A New York State appellate court has ordered the New York City Department of Transportation to reinstate whistleblower John Tipaldo. When Tipaldo reported that his superiors violated bidding rules, he was demoted from his position as Acting Assistant Commissioner for Planning. That was in 1996. In 2006, the trial court granted the City summary judgment on grounds that Tipaldo had not made a formal report of the bidding violations to the "appointing authority." The appellate court reversed in 2008 holding that Tipaldo’s report to the Department of Investigations was appropriate when the "appointing authority" was the person engaged in the violations. Tipaldo v. Lynn, 48 AD3d 361. The appellate court held that since there was no dispute about the retaliatory demotion, the case would be remanded only for a determination of damages and remedies. On the second appeal, the court held that Tipaldo was entitled to interest on his back pay, thereby increasing his award from $175,000 to $662,721. The appellate court awarded the interest even though the state’s statute did not make any explicit provision for interest. The state statute has "the goal of remediating adverse employment actions which, if allowed, would undermine an important public policy, that is, encouraging public employees to expose fraud, waste and other squandering of the public fisc." Tipaldo had hired an expert to compute the interest and the City did not. The court also held that Tipaldo was entitled to reinstatement even though he had declined promotions offered after his demotion. The court said that his corroborated fear of retaliation made his decisions reasonable so that he could still receive reinstatement as part of the court’s order. It took Tipaldo 14 years, and two trips to the court of appeals to get justice. This is an example of how public officials, when challenged by the integrity of a whistleblower, will waste unlimited public resources to delay justice. This might be a good time for New York’s legislature to consider improving its whistleblower law to provide for general and punitive damages, interest, expert fees, attorney fees and jury trials. The case is Tipaldo v. Lynn, Thank you to the New York Public Personnel Law blog for alerting me to this decision.
While Tipaldo was due a promotion to assistant commissioner, the duo bad-mouthed his