Auditor case sheds light on Delaware's whistleblower policies

Officials say those who report misconduct ‘ensure accountability’

By Craig Anderson
Posted 10/17/21

WILMINGTON — The path toward an extremely high-profile indictment announced Monday began when a dozen or so people stepped forward to express concern.

Though Delaware’s justice system will ultimately determine the legitimacy of accusations made against Democratic State Auditor Kathy McGuiness, the whistleblowers have made their collective voice heard.

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Auditor case sheds light on Delaware's whistleblower policies

Officials say those who report misconduct ‘ensure accountability’

Posted

WILMINGTON — The path toward an extremely high-profile indictment announced Monday began when a dozen or so people stepped forward to express concern.

Though Delaware’s justice system will ultimately determine the legitimacy of accusations made against Democratic State Auditor Kathy McGuiness, the whistleblowers have made their collective voice heard.

And that voice prompted a year-plus-long investigation involving Ms. McGuiness by the Delaware Department of Justice, leading to two felonies and three misdemeanors against the auditor, who the DOJ is accusing of corruption, nepotism, official misconduct and more.

The whistleblowers weren’t publicly identified and didn’t get grouped into any one category as Attorney General Kathy Jennings referenced their contribution to the investigation.

Speaking generally later in the week, Ms. Jennings said, “I admire the courage that whistleblowers show and cannot overstate my appreciation for the service they do for the public by ensuring accountability — and often ensuring accountability specifically for powerful people and institutions.”

So who fits into the definition of a whistleblower?

According to DOJ spokesman Mat Marshall, it’s “a broad term that refers to any member of an organization who reports misconduct within that organization to any outside entity, including the DOJ, police, legislators, executive agencies or the press.

“Even within the DOJ, there are multiple divisions which might receive multiple types of complaints (and not necessarily organize them as being from whistleblowers versus non-whistleblowers), and complainants who fit a definition of ‘whistleblower’ might not necessarily volunteer that to us.”

Thus, Mr. Marshall said, “It’s not possible for us to provide an accurate estimate” of how many of those types of complaints are received in a year.

When in doubt, he said, individuals should report concerns.

“The Delaware Code defines crimes,” he said. “We don’t expect the public to have the code committed to memory and generally advise anyone who thinks a crime might have been committed to contact the police, or — when the offense is committed by a public official — the DOJ.”

Protection after reports

But whistleblower complaints aren’t always valid, and the accused deserve protection, as well, according to American Civil Liberties Union of Delaware legal staff member Dwayne Bensing.

“Generally, due process rights of public employees include the right not to be disciplined without just cause and the right of individual employees to (a) notice and hearing in cases of termination or discipline,” he said.

Mr. Marshall said there’s no way to quantify how many complaints are unfounded.
But regardless of the validity of complaints, whistleblowers are protected from any retribution through state and federal law.

Mr. Bensing knows the value of protection firsthand: As a whistleblower, he filed a complaint against the U.S. Board of Education, his employer at the time, for mishandling a transgender-related issue. The board settled in his favor.

He added that he was suspended after he filed the complaint but was protected by the Whistleblower Protection Act and that his proposed removal will be rescinded from his federal personnel file. Further terms of the settlement were not disclosed.

“The public needs access to information about mismanagement and misconduct within the government, both classified and unclassified, in order to hold our government accountable for abuses of power and ensure that Americans’ security is being adequately protected,” Mr. Bensing said.

“Citizens cannot perform effective oversight unless informed public employees and contractors are willing to tell the truth about what is happening within government agencies. We cannot expect these brave individuals to tell the truth if they know it will cost them their jobs.”

Sam Hoff, a George Washington Distinguished Professor Emeritus of history and political science at Delaware State University, noted that National Whistleblower Appreciation Day is commemorated each July 30.

He also said that the Delaware False Claims and Reporting Act, updated in 2019, “punishes (those who present) false or fraudulent claims and awards a percentage of any funds recovered to whistleblowers. This law likewise protects whistleblowers from retaliation by employers.”

According to Mr. Hoff, “In a well-known example from Delaware, a couple reported tax fraud by Connections Community Support Programs, which furnished mental health and additional services to the state of Delaware. This led to a federal investigation and eventual bankruptcy by Connections.”

The professor said about 20% of whistleblowers are successful in stopping illegal behavior and that the U.S. government has paid more than $5 billion in whistleblower reward monies over the past 30 years.

Regarding the effectiveness of whistleblowing, Mr. Hoff said, “There has and always will be a need (to) fight fraud, waste and abuse at the public level, where protections for whistleblowers have exponentially increased.

“It is still harder to track, expose and hold to account abuses which occur in the private sector, though things are changing. Unfortunately, there is still a negative stigma against whistleblowers in certain quarters. The paradox is the tattler versus the do-gooder. Generally, the more serious (or) immediate public harm the information or activity (deters), the greater the likelihood for the whistleblower to be regarded as a hero rather than a rat.”

While the complaints can be made anonymously, Mr. Marshall said, “I can’t get into how frequently whistleblowers avail themselves of that option or how those cases are handled, except to say that investigators and (deputy attorneys general) will follow up on complaints and conduct an investigation to determine whether there is sufficient evidence of a crime to sustain criminal charges or other enforcement action.”

Some other complaints can go directly from the public to DOJ, as opposed to police departments or other agencies.

“Those include hate crimes, pattern or practice discrimination cases, consumer protection issues, investor protection issues, criminal nuisance abatement and allegations of Medicaid fraud,” Mr. Marshall said.

Keith Steck, vice president of the Delaware Coalition for Open Government, formerly worked in the U.S. Government Accountability Office’s Office of the Inspector General, handing emails, phone calls and occasional walk-in whistleblowers.

“I will say that the whistleblower system is meant to be a way for concerned citizens, government and private-sector employees — including contractor and contractor employees — to raise concerns about misdeeds running the gamut from unethical behavior all the way up to criminal conduct,” he said. “It’s a valid and legitimate way for people to raise concerns.

“The systems in place in federal agencies — and I assume at the state level — are also meant to protect whistleblowers from threats and retaliation, but it is imperfect as, sometimes, people’s identities cannot be kept confidential.”

Mr. Steck described the whistleblower system as “legitimate,” giving voice to valid concerns.

“In some instances, some people also try to create problems for another person or entity, but the sort of checks and balances put in place are designed to weed out these kinds of obvious or unsubstantiated allegations and complaints,” he said.

When it comes to the accused, Mr. Steck said, “standard practice is to guard their identity, especially given the possibility that a complaint may not be legitimate. My experience inside my agency, and in others, was that you need to protect that person’s identity as much as the identity of the caller. You don’t want to inadvertently disclose someone’s name.

“That’s as much to protect them from undue harm to their reputation or career if the complaint is not valid and to also protect any possible or real investigation that might be going on; you don’t want to tip off that person or others with knowledge about the complaint.”

Another aspect of whistleblowing, Mr. Steck said “is the need to make sure the system is structured to ensure confidence that anyone stepping forward will be protected. If not, the system will not work. Right now, the whistleblower system is under attack.”

He added, “People on both sides of a complaint need to be protected, and if they feel like they are not, it undermines confidence in the whistleblower system and the government.”

Avenues to reporting concerns include:

  • Anyone with a public trust complaint should contact the Division of Civil Rights & Public Trust at 577-5400 or here.
  • Consumer protection complaints can be directed to 800-220-5424 or here.
  • Any other complaints can be directed to 577-8500.

Formal complaints can also be submitted to the Public Integrity Commission, which would then hold a hearing involving both parties. The complaint can be dismissed or subsequently forwarded to DOJ, said Deborah Moreau, the commission’s counsel.