State lawmakers of both parties push more protections for whistleblowers
Lansing — Republicans and Democrats in the Michigan Legislature want more safeguards for whistleblowers who risk their jobs by revealing wrongdoing, citing governmental breakdowns dating back to the Flint water crisis.
One bill, sponsored by Sen. Jeff Irwin, D-Ann Arbor, would specifically shield individuals who expose suspected legal violations that are yet to occur from reprisals. Another bill, sponsored by Sen. Tom Barrett, R-Charlotte, would protect state employees who take allegations of wrongdoing to lawmakers.
Irwin and Barrett come from different political parties but support each other's bills. The legislation would likely need bipartisan support to try to overcome potential objections from Gov. Gretchen Whitmer, who vetoed similar whistleblower protections placed in budget bills passed in September.
"I think that our law should protect whistleblowers," Irwin said. "When people are taking a courageous action and putting their career at risk to protect people in their community or wherever it is they work, those folks deserve protection."
Barrett's bill has the likely backing of Senate Majority Leader Mike Shirkey, R-Clarklake, and the support of House Speaker Lee Chatfield, R-Levering, who helped put the whistleblower protection language in the state budget bills.
Irwin's bill would expand Michigan's Whistleblowers' Protection Act, which says employers cannot threaten, fire or discriminate against employees who report suspected legal violations. In 2016, the Michigan Supreme Court narrowly interpreted the law to protect only individuals disclosing "an act or conduct that has actually occurred or is ongoing."
In a 6-0 ruling, the Supreme Court said the law didn't protect a worker at an Eaton County emergency shelter who reported a co-worker who allegedly planned to use grant money to purchase a stove for her daughter.
The Whistleblowers' Protection Act didn't protect the worker because the purchase was allegedly planned and hadn't happened yet, the justices said.
To explain his bill, Irwin used the story of Michael Glasgow, who managed Flint's water treatment plant. Glasgow sent an email warning others that Flint's plant wasn't ready when it opened in April 2014, setting off the city's water crisis that resulted in the lead contamination of the drinking water.
Irwin, who previously served on the Flint Water Public Health Emergency Committee, said he asked Glasgow why he went forward with opening the treatment plant despite his concerns. Glasgow said his boss instructed him to do it and he would have lost his job if he hadn't done it, Irwin recalled.
Irwin said his proposal would protect someone like Glasgow, who wanted to prevent something bad from happening in the future. Under the bill, the legal standard for protection would be if a "reasonable person" would believe the upcoming action would cause harm, the Ann Arbor lawmaker said.
Barrett's bill would ban state departments from taking disciplinary actions against employees because they shared information with state lawmakers. The bill aims to promote integrity within state government, Barrett said.
"People should want lawmakers to make the best informed decision," he said.
Lawmakers have previously included similar language to protect their communications with state employees in annual budget bills. But Whitmer used her executive powers to strike the language from departmental budgets for 2020 and said it was unconstitutional.
The state already has several layers of existing protections for whistleblowers, Whitmer's spokeswoman Tiffany Brown said in October.
Michigan Attorney General Dana Nessel and state courts have said the provision violated the separation of powers in the state Constitution “because a department’s disciplinary policy is a core executive function,” Brown added.
But Barrett argued that a separately enacted law on the subject could resolve the constitutional concerns.
The topic was front and center during a November Senate Oversight Committee hearing on the Michigan Department of Transportation's handling of a 2016 study covering the aggregates market.
The state's auditor general found that the Department of Transportation allowed industry stakeholders to influence the study and didn't follow contracting guidelines. FMI Corp., the North Carolina firm that conducted the study, said the Department of Transportation and the Michigan Aggregates Association did not "attempt to influence the results of our study."
Multiple GOP lawmakers highlighted during the hearing a report from the State Transportation Commission's Office of Commission Audits. The report said one department employee had "expressed fear of reprisal for speaking out against the study."
Complaints made through the department's hotline for reporting fraud and abuse were routed through the department's executive office, the employee said.
Barrett repeatedly questioned Paul Ajegba, who became director of the Michigan Department of Transportation three years after the study, if he would punish a state employee who contacted a lawmaker about wrongdoing.
Ajegba answered that department employees can currently contact lawmakers without fear of reprisal. Employees can make anonymous reports through the hotline, he also noted.
“I don’t think I’ve seen any backlash for somebody reporting wrongdoing," Ajegba told the committee.
The response prompted Senate Oversight Chairman Ed McBroom, R-Vulcan, to say he had heard from employees in another state department who've been unwilling to provide information.
Chatfield has consistently supported whistleblower protection language in the budget, said Chatfield spokesman Gideon D'Assandro.
"Anyone concerned about illegal activities, fraud or abuse should feel free to report that to the watchdogs in the Legislature," D'Assandro added.
Barrett's bill currently has 16 Republican cosponsors. But Irwin, a Democrat, said in an interview that he plans to support Barrett's proposal.
"I agree with the governor on almost everything, but not this," he said.
Public employees should be able to speak freely with legislators, Irwin said. He added that he values the relationships he has with public employees.
Barrett said he hopes to get additional support for his bill from Democrats.
"It’s not about politics," Barrett argued about the whistleblower protections. "It’s about good government."
Staff Writer Beth LeBlanc contributed.