Montana Legislature Whistleblower protections proposal gets first hearing

A proposal to provide new protections for government whistleblowers got its first hearing in the Montana Legislature on Thursday, earning praise from a public employee currently suing the state for wrongful termination while prompting concerns from lawmakers that it would result in additional caseloads and costs to the state if enacted.

House Bill 202 is sponsored by Rep. Kirk Wagoner, R-Montana City, who characterized the measure as providing an “alternate approach” to the grievance process currently available to state employees.

Rather than requiring public employees to bring complaints within the executive branch, such as those handled by the Department of Administration or the Commissioner of Political Practices, it would allow them to reach out to legislators to pursue a cases of wrongdoing in their office. It would also create a “public obstruction” felony for those who attempt to impede whistleblowers from lodging a complaint, punishable by a fine of up to $20,000 and up to five years in prison.

Speaking in support of the measure before the House Judiciary Committee was Carol Bondy, a former state employee who served as the Department of Public and Human Health Services’ audit bureau chief for 14 years, until she was dismissed in late 2015.

Bondy gained statewide attention last year after filing suit against the state, alleging she had been fired for attempting to shine light on misuses of public funds within the department. She told the committee she was fired for misconduct after one of her employees provided information to a legislator whose request had been stymied by the department. The state alleged she had improperly supervised the employee by not requiring him to notify a department head beforehand, she said.

“I am not alone,” Bondy said. “State employees have been fired, they have been demoted, they have been reassigned and they’ve been harassed until they quit, because they have information that is damaging to state agencies and they do not have the protection at the moment, or a venue to report these concerns.”

The proposal was met with opposition by Lewis and Clark County Attorney Leo Gallagher, who said the law “would create absolute mayhem” by giving his office and the Helena Police Department the political power to investigate and prosecute the public-obstruction felony cases.

“It would invest enormous power in the police and the county attorney at Lewis and Clark County to come into this body, then into the state government,” Gallagher said.

Responding to Wagoner’s argument that all but 16 other states in the U.S. have passed similar protections, Rep. Jenny Eck, D-Helena, noted that many of those laws place legal accountability on a whistleblower’s employer, rather than individual supervisors.

“It’s unclear to me why you would create criminal liability on an individual who is operating under a hierarchy and a culture created by the employer,” Eck said.

The Commissioner of Political Practices office objected to the additional caseload it could create for the agency’s lone hearing examiner, and several committee members expressed concerns about the costs to Montana’s government for defending potentially fraudulent or politically motivated complaints against the state.

Rep. Laurie Bishop, D-Helena, asked whether Wagoner could simply establish whistleblower protections that strengthen the state’s current process for handling such complaints.

“The process of removing the current process is a very difficult thing to complete in the Legislature,” Wagoner responded, adding that his previous attempt to do so proved too complex to win approval from lawmakers. “... But I think if we have an alternative process in place, then next session we could remove the old process or parts of the old process.”

Responding to concerns that the law would also apply to county employees, Wagoner said he would be open to amending the bill to restrict its scope to state government, and would be open to altering the penalties established for those who silence whistleblowers.

A separate measure sponsored by Wagoner, House Bill 208, would provide similar penalities for public employees who retaliate against whistleblowers.

With the publication of Bondy’s suit against the state last year, Sens. Bob Keenan, R-Bigfork, and Dee Brown, R-Hungry Horse, declared their intent to form an investigative committee to look into the issue. Keenan said Thursday that he no longer expects to pursue the committee, but agreed with the premise of Wagoner’s bill.

Reporter Sam Wilson can be reached at 758-4407 or by email at swilson@dailyinterlake.com.