There’s no relief in sight for whistle-blowers inside the D.C. courts.
Two years ago, just before investigators from the federal General Accounting Office (GAO) swept into D.C. Superior Court and the D.C. Court of Appeals to audit the courts’ finances, a staffer in the finance office—who had complained about the condition of the courts’ books—showed up at work to find that his high-ranking job had been eliminated. The staffer was demoted to special financial analyst. After he cooperated with GAO investigators, he was reassigned again.
“I was moved out of fiscal operations altogether,” says the eight-year veteran courts employee, who asked not to be identified. “Basically, I supervise maintenance workers now.”
The tale is all too familiar to longtime courts-watchers. For years, employees of the District’s famously dysfunctional court system have complained that whistle-blowers face harassment for exposing things like budget blunders—and that they have no legal recourse when supervisors retaliate against them. “We can’t even get a union together here because people are so afraid of talking,” says another employee.
Eventually, the court system’s mounting crises got the better of its gag reflex. Court-appointed attorneys who got tired of wondering where their paychecks were started calling Congress, which asked the GAO to investigate. And as the GAO probe proceeded, from December 1998 through January 2000, investigators came across some complaints of retaliation against whistle-blowers. According to GAO investigators, the courts’ overseers on the Hill worried that court employees might not cooperate with investigators, so D.C. Superior Court Chief Judge Eugene Hamilton issued an order last year stating that the court would not tolerate retaliation. The order seemed to work for a while: GAO investigators say they had no problem gathering information.
But whistle-blowers’ advocates say that the effect of the judge’s order was short-lived. So last year, the House of Representatives and the Senate passed H.R. 858, a bill designed to give whistle-blowers at the Carl F. Moultrie Courthouse permanent protection. The legislation would allow D.C. courts workers who face retaliation for exposing wrongdoing to take the Executive Officer of the D.C. Courts or the Joint Committee on Judicial Administration—the panel that is in charge of running the D.C. courts—to federal district court. Court critics were thrilled.
Now the bill is back in the House. (The Senate revised it so much that the House must repass it.) The House will vote on the bill if the members agree to do so by unanimous consent. But such agreement seems unlikely now, thanks to some unexpected opposition from D.C. Delegate Eleanor Holmes Norton. Norton, a law professor on leave from Georgetown University Law Center who is a labor- and constitutional-law expert, calls the bill “patently unconstitutional.”
“I believe there should be statutory whistle-blower protection. The reason this bill isn’t moving is because it violates federalism on the one hand and separation of powers on the other,” Norton says. She notes that if the bill became law, the D.C. courts would be the only local judicial system in the country that employees could sue in a higher court. The home-rule die-hard also argues that Congress shouldn’t tell the city’s courts how to handle employee complaints.
Courts-watchers say this is no time for Norton to be falling back on principle. “I agree with a lot of her arguments, but the reality is, D.C. residents have faced delays in receiving child-support payments and they can’t get decent representation from court-appointed attorneys. We need a functioning court system first. Then we can talk about vindicating those principles,” says Doug Hartnett, staff attorney for the Government Accountability Project, a government watchdog group. “Given realities, this legislation is the best way to provide employees with safe communication channels.”
Currently, D.C. courts employees don’t have access to the protections federal or state courts employees elsewhere do. Although D.C. courts employees get paid by the federal government, they don’t count as federal courts employees—who can take their complaints to the Administrative Office of the U.S. Courts. Nor are they D.C. government employees, who are covered by D.C.’s own whistle-blower protection law.
H.R. 858 was supposed to change the situation. The original version, introduced by Tom Davis, chair of the House Government Reform Committee’s Subcommittee on the District of Columbia, and passed by the House, declared that courts employees were to be covered under the whistle-blower protection statute that covers District government employees. But this setup had two flaws: First, courts employees seeking relief from retaliation would have had to file suit in D.C. Superior Court—that is, in courtrooms run by the very judges they might be complaining against. Second, even if courts employees complained to the mayor or the D.C. Council, those officials wouldn’t have the authority to change anything, because the 1997 National Capital Revitalization and Self-Government Improvement Act turned courts oversight over to Congress.
In October, the Senate passed its own version of the law, which would give courts employees protection if they blew the whistle to Congress—and allow them to seek relief in federal court.
As a substitute to that version, Norton says she’s working on her own legislation, which would give D.C. courts workers recourse similar to that available to federal courts employees. Norton wants to create what she calls a “proxy” for the Administrative Office of the U.S. Courts. But, true to the goal of keeping D.C.’s employees distinct from the federal government’s, this office would be just for the D.C. system.
The constitutionality of allowing staffers to sue D.C. court officers in federal court is debatable, says Paul Rothstein, a constitutional law expert with Georgetown University Law Center. “If D.C. were on par with states, it’s doubtful whether this legislation could stand, but since D.C. is a hybrid, the outcome is very much in doubt,” Rothstein says. However, he adds, Norton’s suggestion to let D.C. courts employees steer their complaints through an administrative office, as federal courts employees do, “sounds more sound legally.”
But supporters of H.R. 858 argue that only whistle-blower protection akin to the kind most city and federal workers enjoy—with the opportunity to take their cases to court—will change the culture of fear among employees inside the courthouse. And they feel a bit betrayed by Norton, a longtime supporter of D.C.’s courts. “I would hope that [Norton] would understand that the management structure [at the courts] is still vulnerable to the kind of abuse we’ve seen that has resulted in the crisis we’ve had in recent years,” says Hartnett. As far as Hartnett’s concerned, a constitutionally awkward—and home-rule-busting—grievance process is worth the trouble.
Inside the courthouse, employees say little has improved since the February departure of D.C. Courts Executive Officer Ulysses Hammond, whom employees accused of mismanagement and cronyism (“Courting Disaster,” 10/1/99). Under Hammond’s watch, two years ago, the court overspent its budget by $4.6 million, siphoning off money that should have gone to court-appointed attorneys who represent indigent defendants and to pay for court operations instead.
“Some of the players have changed, but things are worse than before,” says the employee who lost his job in the finance department. “Good people are afraid to speak out against things they know are corrupt.” CP