The State Worker

Lessons from a lawsuit

Well, here’s something you don’t see every day: A high-level executive of a high-profile agency gets fired, retains a celebrity attorney and then files a tell-all lawsuit alleging he was whacked for whistleblowing.

Former state Sen. Joe Dunn’s acrimonious departure as the California State Bar’s executive director has lawyers everywhere talking, since the quasi-public organization administers the gateway exam into their profession and then disciplines them for illegal or unethical practices.

So far, we’ve heard mostly from Dunn, who alleges that a bar executive falsified investigation reports to enhance her evaluation and pay, that the same person made an unspecified complaint about him, that the board of trustees’ president was out to get Dunn and that he was fired, he says, for reporting the corruption.

The board countered with a news release calling Dunn’s lawsuit “baseless.” Without getting into the gory details, the bar said that staff complaints prompted Dunn’s termination after considerable investigation and deliberation.

“It’s bewildering to hear Mr. Dunn claim that he is a whistleblower,” the bar’s statement says, since he was the guy just below the board on State Bar org chart.

The dispute could take a year to play out, says workplace lawyer Jessica Linehan. But beyond gossip fodder for the litigating class, the case also serves up reminders for employees and employers:

Whistleblowing is risky. It takes courage to tell what you know. Sure, the law affords protections for most employees who call out waste, fraud or abuse. But reprisal can be as subtle as losing your preferred shift or, as Dunn claims, as severe as losing your job.

Most retaliation claims go nowhere. Last year, the State Personnel Board fielded 44 such complaints and accepted 27 of them, according to its latest report. Of those, the board granted two claims. One was settled. The rest were withdrawn, dismissed or consolidated with other appeals or set for a full hearing. Most court cases settle, Linehan said.

Whistleblowing can be like a messy divorce. Now that Dunn has gone public, Linehan said, “the bar has to make their case (within 30 days) that they had legitimate, non-retaliatory reasons for separating.” Translation: Get ready for damning claims about Dunn.

Reprisal goes both ways. The whistleblower card can be played to gain leverage during, say, acrimonious severance-pay negotiations. “There are times when you suspect the employee’s endgame is negotiating a better severance,” Linehan said. “Whether it works is an imprecise science.”

Some public employees have no protections. Despite scandals that roiled the Senate this year, lawmakers killed a bill that would have given their staff the same whistleblower protections afforded civil-service employees. So the big lesson from the Dunn case for legislative staff is this: See something wrong? Muster your courage.

Call Jon Ortiz, Bee Capitol Bureau, (916) 321-1043. For more columns, go to sacbee.com/stateworker.

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