Criticism of RSMo 105.055, a Missouri Statute regarding whistleblowing by State Government employees.

The main purpose of this article is to illustrate how poorly-worded statutes create very weak rights, almost non-existent rights, despite their best intentions.

RSMo 105.055 is an example of a statute that grants a “right” that has little or no value, as you will see by the time you finish this article. If you can’t get a lawyer to help you, due to a poorly-worded statute, then the alleged “right” granted by the statute has little or no real world value. RSMo 105.055 only covers Missouri State Government employees.

Please do not assume that RSMo 105.055 is the only protection that applies in whistleblower-type cases involving Missouri State Government employees. Depending on the case, 105.055 might be all you have, but there might be other laws and doctrines protecting you as well - it’s case by case.

In addition to RSMo 105.055 (the limited focus of this article), Missouri State Government employees may enjoy some protection against retaliation under a variety of laws and legal doctrines, depending on the circumstances of course. For example, the Missouri Human Rights Act (see Discrimination) has an anti-retaliation provision. Plus, Missouri State Government employees are also covered by constitutional legal doctrines and by many other laws. Also, most Missouri State Government employees are covered by the global generic protection against being fired, demoted or suspended for “political, religious, or racial reasons, or not for the good of the service” contained in RSMo 36.390.5 (opens in new window).

Again, in this article I am only trying to educate about one - just one - of the anti-retaliation laws, RSMo 105.055.

• INTRO TO DECONSTRUCTING AND CRITIQUING RSMo 105.055
• OVERVIEW of the problems with RSMo 105.055:
• LOOKING AT RSMo 105.055 SECTION BY SECTION
• SUMMARY OF MAJOR REFORMS NEEDED:
• CONTRAST RSMo 105.055 TO RSMo 105.467
• You have to wonder WHY such a weak law as RSMo 105.055 would be written
• CONCLUSION: Improve RSMo 105.055 to encourage reporting of mismanagement. Might help hold down tax increases.

DECONSTRUCTING AND CRITIQUING RSMo 105.055

To get you started, open this link to RSMo 105.055 in a new window: RSMo 105.055 from the Missouri Secretary of State website (opens in new window).

The title of RSMo 105.055 is “State employee reporting mismanagement or violations of agencies, discipline of employee prohibited–appeal by employee from disciplinary actions, procedure–disciplinary action defined –violation, penalties.”

Now we’re going to take a closer look at RSMo 105.055 and see if it was written to actually accomplish what its title says it is trying to accomplish.

RSMo 105.055 creates an illusion of protection without any substance

RSMo 105.055 seems to be a failed attempt to possibly expand whistleblower protections to cover things like giving truthful information to legislators or to the state auditor (and perhaps other investigators), even if such information is not technically blowing the whistle on wrongdoing.

The statute also provides limited coverage for reporting mismanagement (a common form of whistleblowing). But then big problems show up in the statute, as it fails miserably to provide a scheme of protections and remedies that would truly discourage retaliation.

RSMo 105.055 creates an illusion of protection, but the protections are nearly meaningless in the real world. If you look at the title of RSMo 105.055, you will see a seemingly powerful statement about how this statute is to protect against retaliation for whistleblowing. But when you read the statute, you see that there is no meaningful protection, and in fact that retaliation is almost encouraged.

Here’s an overview of the problems with RSMo 105.055:

• First, not all whistleblowing is covered - only a very select kind of whistleblowing is clearly covered.
• Second, the statute does not provide for any damages for the employee for a proven violation. Without damages, agencies have no fear.
• Third, the statute sets the maximum punishment for the retaliating superior at 30 days leave without pay (slap on the wrist, winking at retaliation and even perhaps encouraging some people to retaliate because the penalty is minimal).
• Fourth, the statute has a ridiculously short deadline period of 30 days, and has vague procedures for making a complaint of retaliation.
• Fifth, 105.055 does not provide for your attorney fees if you win. So the great majority of state employees will be unable to afford to hire a lawyer, and the lawyer will be unable to afford to take the case on contingency fee (because no special damages are possible).

No court cases have been reported regarding RSMo 105.055. That probably means few people are making use of it.

My Lexis research late October 2003 failed to disclose any reported cases regarding RSMo 105.055. Assuming my research is correct, I speculate that the lack of reported cases is explained by the defects in the law. Maybe many potential State Government employee whistleblowers are holding their tongues. Maybe many have been retaliated against, but they have not brought court actions due to the weak laws.

I have not worked with RSMo 105.055, but I am looking at it as if I were to have a potential case to consider. I have tried to identify the traps and defects.

LOOKING AT RSMo 105.055 SECTION BY SECTION

In the narrative that follows, I take each section of RSMo 105.055 and comment on it.

I will not quote the statute (some passages are quite long). So please load the statute into a new browser window in order to follow along. Click this link to open RSMo 105.055 in a new window, so you can follow along with my narrative. RSMo 105.055 from the Missouri Secretary of State website (opens in new window).

Section 105.055.1 - This section prohibits retaliation against employees for discussing agency operations (whether reporting wrongdoing or not) with the Legislature or the State Auditor.

This section seems not to provide any protection against retaliation for reporting wrongdoing to anyone other than the Legislature or the State Auditor.

But most employees, in the real world, do not go to the Legislature or the State Auditor. They go to their managers, or to their personnel officer, or they call a hotline. In the real world, disclosure of wrongdoing does not occur through a precise mechanism. But the legal system might look to see that the exact requirements of RSMo 105.055 are satisfied, and whistleblower protection might be denied to anyone who complained to anyone other than to a legislator or the State Auditor.

If the whistleblower did not make his disclosures to a legislator or to the State Auditor, then there is a hole in his case, and he might not have gained protection against retaliation at all, under RSMo 105.055. He might have gained protection under a different set of laws, but we are only talking about 105.055.

Section 105.055.2 - This section prohibits retaliation against employees for disclosing wrongdoing or giving evidence in a matter already under investigation, such as when the employee is interviewed by an investigator.

105.055.2 begs the question: Under investigation by whom? Since statutory terms are read together in context, judges might rule that the investigation must be conducted only by the Legislature or the State Auditor, reading 105.055.2 together with 105.055.1.

Therefore, 105.055.2 might not provide any protection against retaliation for making disclosures of wrongdoing during investigations conducted by anyone other than the Legislature or the State Auditor.

Section 105.055.3 - This section does not provide further whistleblower protections. This section, in 105.055.3(4), discourages whistleblowing while laying out the Agency’s authorized counter-attacks on the whistleblower.

The Agency is permitted to discipline, in an unrestricted manner, any whistleblowing person who has behaved culpably in connection with the subject matter. This is bad public policy. Frequently, whistleblowers come to the conclusion that they must make a report only after they have participated in an action (with others or on orders from above) and then realized that they have done wrong, or after they have turned a blind eye to questionable actions and decided to stop turning a blind eye. Leniency is often called for, if not forgiveness. But 105.055.3(4) authorizes unrestricted discipline for the whistleblower. This discourages whistleblowing.

The whistleblower can be disciplined, in an unrestricted manner, if, in blowing the whistle, he reveals information that is closed or confidential under the “open meetings law”. This provision could have the effect of encouraging coverups and discouraging whistleblowing. A state whistleblower hotline number of some sort should be provided for, where employees can make whatever disclosures they feel are necessary.

Section 105.055.4 - This section lists the types of discriminatory acts which are to be prohibited.

There are two problems. First, the list of items does not account for the campaign of “attempted constructive discharge” that will be waged against the whistleblower. Second, the section fails to establish the legal standard that must be proved.

Retaliators never say “You blew the whistle - you’re fired”. Instead, they bide their time, and over the course of time get the whistleblower documented for discipline or termination. They turn a cold shoulder to the whistleblower. They begin to downgrade the whistleblower on performance reviews, they nitpick the whistleblower’s work to death. Eventually, the whistleblower gets the message that they are being forced out, or are being documented for termination, but none of the actions yet meet the definition of retaliation contained in the statute.

What occurs is often a campaign of “attempted constructive discharge” (trying to force someone to quit), and the procedures used are varied, and the things done might not qualify as forms of retaliation covered by the statute. Courts have legal doctrines useful in sorting out whether an “attempted constructive discharge” has occurred, so the statute should probably say that “attempted constructive discharge” is prohibited. For more about the concept of “constructive discharge”, see my article on the subject: Constructive Discharge.

Without a legal standard set by the statute itself, I wonder if some judge might rule that the disciplinary action must be “solely and exclusively” caused by an intent to retaliate. For comparison, the “exclusive causality doctrine” has been judicially determined to be present in the “workers comp retaliation” law 287.780. See Workers comp retaliation and the problem of exclusive causality. The “exclusive cause” standard is quite troublesome for employees, to understate the magnitude of the problem.

Ideally, this section (RSMo 105.055.4) should set a reasonable legal standard, such as “Where retaliation is a motivating factor, the following acts constitute ‘disciplinary action’ as used in this section” - (and then list the retaliatory acts, adding “attempted constructive discharge”).

Section 105.055.5 - This section lays out the procedures and penalties for a violation.

This section is a TRAP and it virtually destroys the good intent of the statute, and guarantees that very few people will risk blowing the whistle.

Here are the big problems with this section, RSMo 105.055.5:

• LOW PENALTY TO RETALIATOR: The maximum penalty for a first offense of retaliating against a whistleblower is 30 days leave without pay. That encourages retaliation. Retaliators have little to fear.
• SHORT FILING DEADLINE: The employee only has 30 days to file a formal complaint of retaliation. This effectively time-bars and prevents the great majority of complaints, because the great majority of complaints will arise from a long campaign of attempted constructive discharge, or a long campaign of trying to document someone for discipline or termination. Smart retaliators will never do or say anything that could give rise to an immediate claim of retaliation. By the time the whistleblower feels enough bad acts have occurred to convince someone that retaliation is occurring, more than 30 days have passed since any act has occurred that could possibly have met the existing definition of retaliation.
• VAGUE INSTRUCTIONS ON WHERE TO FILE COMPLAINTS: Where does the whistleblower file? The statute is vague, and not even lawyers know the answer with any degree of certainty. If we file with the Personnel Advisory Board (PAB) , we miss the deadline if the agency has procedures “similar to those” provided in chapter 36. How would anyone know whether an agency’s procedures are “similar-enough” to chapter 36 to mean that we must file with the agency rather than the PAB? Who is tasked in Missouri law with knowing the answer to the question of whether an appeal to PAB is required or an appeal to the agency is required? NO ONE. There is no ready resource. People can’t figure it out.
• TOLLING TRAP- The 30 day statue of limitations is NOT TOLLED if the state employee files with the agency (in error) but should have filed with the PAB. When the employee is informed by the agency that they should have filed with the PAB, the PAB will then reject the complaint because more than 30 days have passed. (”Tolling” is when the deadline stops running for a while. Tolling can be critical to a case.)
• CONFLICT OF INTEREST - The whistleblower’s agency has a conflict of interest when being asked to process a whistleblower retaliation complaint, or at least the agency has the potential to be influenced by the friendly relations between the retaliator and the top-level review personnel at the agency. Therefore, the agency itself should never sit in review of a whistleblower’s retaliation complaint.
• NO COURT ACTION, ONLY A PETITION FOR REVIEW IS ALLOWED - Review of the PAB or agency appeal decision in the circuit court is the only avenue for the whistleblower to get his claim heard by the court. But that is not the same as a legal action brought in court for damages. The court only reviews the PAB or agency decision to see if the PAB or agency had “a substantial basis” for its decision. The most the court does is send the case back to the PAB or agency.
• NO DAMAGES: What damages can the whistleblower win? NONE. The employee can only be given equitable relief in the form of reinstatement and backpay. The statute should be changed to provide at least compensatory damages.
• NO ATTORNEY FEES: Who pays the successful complainant’s attorney fees? The complainant. There is no attorney fee provision. State employees cannot, as a rule, afford to have a lawyer assist them. When no damages are available, and no attorney fees provided by statute, lawyers must be paid pure hourly legal fees most of the time. It’s extremely expensive to get a lawyer to fight a case on an hourly fee basis. State Government employees can’t afford it.
• DEADLINE AND TRIBUNAL REFORM: If the statute is not going to give the employee a private right of court action, then the PAB should hear all complaints, and the deadline should be extended to match the Missouri Human Rights Act’s 180 day deadline.

SUMMARY OF MAJOR REFORMS NEEDED:

Expand the definition of whistleblowing to make it clear that any reporting of wrongdoing in good faith to superiors or to any investigative body gives the employee protection against retaliation.

Provide a private right of court action for damages.

Provide for equitable relief, actual, compensatory and punitive damages, and attorney fees.

If Missouri is to keep the administrative appeal process, then at least provide for tolling of the deadline period if the employee erroneously files with either the agency or the PAB. Extend the deadline to 180 days from 30 days.

Add “attempted constructive discharge” as a prohibited form of discipline.

Set a reasonable legal standard such as “motivating factor”.

CONTRAST RSMo 105.055 TO RSMo 105.467

Contrast RSMo 105.055 with RSMo 105.467. RSMo 105.467 is a whistleblower statute regarding the taking of bribes or personal dealings by state officials. RSMo 105.467 allows a direct civil action, with attorney fees. It’s a no-nonsense statute, whose biggest deficiency is the absence of compensatory damages.

By comparison, RSMo 105.055 is a non-starter. Vague procedures, no damages, no attorney fees, ridiculously short statute of limitations of 30 days. No meaningful penalty to the retaliatory on first offense. So RSMo 105.055 seems to wink at retaliation. But RSMo 105.467 seems to be more of a real attempt at an anti-retaliation statute (minus the chance of compensatory damages).

You have to wonder WHY such a weak law as RSMo 105.055 would be written

Let’s speculate about why an anti-retaliation law would be written that provides no damages, ridiculously short deadlines, and a mere slap on the wrist punishment to those who commit retaliation. When a law is written to be nearly meaningless, why does it exist at all?

Missouri conservative politics has not permitted too much in the way of progressive legislation, as a general proposition. This has held true even during the decades of a Democratic controlled legislature.

I expect that the legislature was faced with a public relations problem: Politicians wanted to try to reduce waste and mismanagement in government, but someone pointed out to them that there was no law protecting state employees who report mismanagement. So the politicians figured they needed to write a protection law, to try to encourage the reporting of mismanagement.

BUT, if they write a good law, with real solid protections, then they will cause people to file lawsuits because lawyers will be attracted to the cases. So the politicians (who hate lawyers) could not bring themselves to write a law with meaningful protections. The law could not provide for any hope of winning special damages or attorney fees, for to do so would just attract lawyers.

I guess it was politically possible to pass a law that, essentially, requested the agencies not to retaliate. But it was definitely not politically possible to pass a REAL law prohibiting retaliation (with the right to lawsuit, damages and attorney fees).

As I write this in November 2003, we have a more “conservative” legislature in Missouri than we had in 1987 when RSMo 105.055 was first enacted. In 1987 the legislature was Democratic, but the governor was a Republican. Now, the governor is a Democrat and the legislature is Republican. It’s doubtful anything will be done to improve RSMo 105.055.

CONCLUSION: Improve RSMo 105.055 to encourage reporting of mismanagement. Might help hold down tax increases.

It would be good policy to improve the protections against retaliation, so that State Government employees would be encouraged to report waste and mismanagement. It might even hold down our taxes a little if employees are encouraged to report mismanagement.

Politicians and the TV and Radio commentators like to scream about all the mismanagement and waste, and how we could eliminate so much of it and thereby avoid tax increases. How are we going to find all this mismanagement? In Missouri, we are not doing anything to encourage employees to report mismanagement, so we are missing an opportunity to improve the efficiency of government and hold down taxes.