New Your State School Boards Association

Court rules acting in good faith key to whistleblower protection


On Board Online • November 16, 2015

 

After becoming aware of alleged bidding irregularities in the New York City Department of Transportation (DOT), an employee notified his immediate supervisors and the Department’s Inspector General. Should the employee be protected under the state’s Civil Service whistleblower law from adverse job actions, even though he failed to first inform the official “appointing authority” as specified in the law?

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 health or safety.” This requirement gives the employer the opportunity to end the violations prior to disclosing misconduct to an outside agency.

The defendants sought to dismiss the case, arguing that Tipaldo failed to comply with the statute by not reporting the alleged wrongful actions to the appointing authority (Lynn and Malchow) before contacting the Office of the Inspector General.

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 plaintiff “understandably did not report their alleged misconduct to them.” The court noted, “Lynn and Malchow would not likely have been receptive to plaintiff’s complaints or reported themselves to the Department of Investigation.” The court found that Tipaldo’s actions demonstrated good faith compliance with the Civil Service Law.

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.

 


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