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June 14, 2010

Whistleblower must blow the whistle to claim the whistleblower protection provided by the Whistleblower Statute, Civil Service Law §75-b

Whistleblower must blow the whistle to claim the whistleblower protection provided by the Whistleblower Statute, Civil Service Law §75-b
Hastie v State Univ. of N.Y. Coll. of Agric. & Tech. At Morrisville, 2010 NY Slip Op 04911, Decided on June 10, 2010, Appellate Division, Third Department

Civil Service Law §75-b protects an officer or employee in the event he or she reports what he or she in good faith believes is an improper governmental action to a governmental body.*

James Hastie was employed by SUNY Morrisville. Among his job duties was overseeing SUNY Morrisville’s development program and fundraising efforts. In the course of reviewing an Internal Revenue Service tax form (IRS form 8283) prepared by a third party involving property donated to Morrisville, Hastie became concerned about the truthfulness of statements regarding the property's appraised value.**

Sharing his concerns with Morrisville's president and its vice-president for administrative services, they directed him to sign the form. Hastie refused and his employment was terminated shortly thereafter.

Hastie then sued Morrisville, claiming he had been subjected to “a retaliatory discharge” within the meaning of Civil Service Law §75-b, the so-called the whistleblower statute. Supreme Court, however, granted Morrisville’s motion to dismiss his petition.

The Appellate Division, in reviewing Hastie’s appeal from the Supreme Court’s ruling, said that notwithstanding its accepting Hastie’s allegations in his complaint as true, it must, nevertheless, affirm the Supreme Court’s ruling.

Explaining that although an adverse employment action may not be taken against a public employee based upon his or her disclosure of information "which the employee reasonably believes to be true and reasonably believes constitutes an improper governmental action" to a governmental body, in this instance the alleged wrongdoing consisted of Morrisville’s president and vice-president directing Hastie to sign the receipt section of the IRS form 8283.

Hastie, however, had not reported the alleged improper directive to any governmental body other than the alleged wrongdoers themselves. As §75-b requires that the employee to advise the appointing authority prior to his or her reporting the information to a “governmental body,” the court apparently concluded that neither Morrisville’s president or vice-president qualified as a “governmental body” for the purposes of §75-b in this instance.

Accordingly, the Appellate Division ruled that Hastie had not undertaken “the notification efforts which are a procedural prerequisite to invoke the protections of the statute.”***

In Hastie’s case, the single possible improper governmental action was not the submission of the allegedly flawed tax form by a third party but, rather, “the directives from the alleged wrongdoers, [Morrisville’s] president and vice-president, that [Hastie] sign the receipt section of the form.”

As Hastie had not reported this “directive” to any “governmental body,” he failed to undertake the notification effort that constitutes the procedural prerequisite to his invoking the protections of the statute.

* See, also, Labor Law §740, which essentially applies to employers in the private sector.

** IRS form 8283 required an acknowledgment from Morrisville that it had received the property.

*** Civil Service Law §75-b 2, in pertinent part, provides: “(a) A public employer shall not dismiss or take other disciplinary or other adverse personnel action against a public employee regarding the employee's employment because the employee discloses to a governmental body information: (i) regarding a violation of a law, rule or regulation which violation creates and presents a substantial and specific danger to the public health or safety; or (ii) which the employee reasonably believes to be true and reasonably believes constitutes an improper governmental action.” Further, sub-paragraph (b), in pertinent part, requires that the individual “Prior to disclosing information pursuant to paragraph (a) … shall have made 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….”

The decision is posted on the Internet at: http://www.courts.state.ny.us/reporter/3dseries/2010/2010_04911.htm

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