Marilyn Odendahl for www.theindianalawyer.com
Rep. Ed DeLaney, D-Indianapolis, has filed a bill that would extend whistleblower protections to state employees who speak up about government misdeeds or fiscal malfeasance.
The legislation could impact a recent split decision from the Indiana Supreme Court, which found the state whistleblower statute did not include workers in the public sector. In Suzanne E. Esserman v. Indiana Department of Environmental Management, 49S02-1740-PL-00189, four of the five justices found the state has sovereign immunity and cannot be subject to whistleblower lawsuits.
Language in House Bill 1182 would make the provision retroactive to Nov. 1, 2017. The Indiana Supreme Court issued the Esserman ruling Nov. 2, 2017.
“It is my intent that this bill, if it were to pass, it would revive this case,” DeLaney said, although he emphasized the Indiana Justices would ultimately have to decide what happens. “I’m not in a position to void any decision of the Supreme Court.”
However, DeLaney said he would reluctantly remove the retroactive language if that enabled the bill to pass through the Legislature.
After the Indiana Supreme Court’s decision, DeLaney said he would file a bill amending the state whistleblower laws. He was optimistic his legislation would attract bipartisan support.
Yet SB 1182 has not gained momentum. The bill has been assigned to the House Judiciary Committee but has not been scheduled for a hearing, and no other legislators have joined as either co-authors or sponsors.
Esserman, an IDEM employee for more than 20 years, sued the agency after she was fired in January 2014. She claimed she was terminated in retaliation for raising concerns about alleged misuse of public money from the Excess Liability Trust Fund.
The majority of the Indiana Supreme Court determined that because the statutes do not specifically identify the state as a permissible defendant in a whistleblower dispute, the state remains protected by immunity.
House Bill 1182 adds language to state whistleblower laws specifying the term “employee” includes state workers and the term “employer” also encompasses the state of Indiana. Under the bill, the clarifying language would be added to the false claims and whistleblower protection statute, the Medicaid false claims and whistleblower protection statutes, and the statute providing whistleblower protection relating to adult protective services.
DeLaney said he is trying to amend state law so ordinary citizens such as Esserman do not suffer because the Supreme Court is deferential to the Legislature. He wants to ensure state employees can point out wrongdoing without fear of losing their jobs. And if they are fired in retaliation, they can get compensation and fair treatment.
“I hate to see citizens get backed in a corner because of that,” DeLaney said of how the judiciary interprets the Legislature’s actions.