Wednesday, September 21, 2011

 

Whistleblowing and mandatory reporting—two mine fields for employees in Hawaii


by Larry Geller

The whistleblower suit against United Airlines wrapped up today for the Honolulu segment—the attorneys will still confer on some lose threads and they will file closing briefs.

There is much to say about this trial, which the mainstream media has overlooked, but also, as with many similar cases, the underlying issues which prompted the employee to blow the whistle have far greater societal importance than just the adverse effect on a single (usually now terminated) brave employee. So it is with this case, and I’ll have more on that shortly.

Closely related to whistleblowing is the requirement that certain state employees are mandatory reporters. Most people know, for example, that psychologists are mandatory reporters. If they witness or are made aware of child abuse, they must notify Child Protective Services. HRS §350 requires several professions and in particular any school employee to report child abuse, yet the law has never, as far as my research can discover, been enforced in the schools. I’ve written several times about Hawaii’s failure to enforce this protective law. Bottom line is that children can be abused, and perhaps some have died, because a person who should have reported the abuse didn’t do so. Our police and prosecutors let them get away with it.

Should a school staff person actually report, they can kiss goodbye any chance of working in education in Hawaii:

Report and you might be fired

Are the fears of retaliation justified? I have documentation on one case in which a part-time special education teacher at Pearl Harbor Kai Elementary School stated as part of her whistleblower complaint that she reported abuse of a student to authorities to school officials and was reassigned and later terminated by the DOE. (Civil No. 00-1-1184-04). We understood, as this incident unfolded, that the alleged perpetrator continued with the DOE in another classroom.

So again, the alleged perpetrator stays on. An employee who reported the abuse as required by HRS 350 is terminated. The whistleblower suit was settled, and the terms are not public. It took the complainant a long time to find an attorney willing to take her case. Presumably, the damages were small because a part-time DOE teacher’s salary is small. Because of the difficulty in finding attorneys to take up these cases, it is easy for DOE to retaliate, which must be a powerful disincentive to report. Strengthening the whistleblower protection statute may also help protect the children.

[Children’s safety threatened by schools’ failure to report abuse as the law requires, 9/5/2009]

The article linked above describes several situations of abuse in the schools and the failure of anyone who knew about the instances or observed them to report.

Those of us who live here are aware of a strong culture of retaliation designed to discourage reports of wrongdoing. In the DOE, retaliation includes not only firing but also blacklisting. Since Hawaii has but one state-wide school district, it is impossible for paraprofessionals, for example, to find work should they “rat” on the DOE. Retaliation in the DOE is a way of life. Cross them and suffer the consequences.

I have personal experience while a case manager during the Felix Consent Decree of DOE attempts to get me fired when I advocated for the students, which is part of the responsibilities of a case manager. The DOE model is that the case manager should sit at school meetings with duct tape over the mouth area. Speak out and risk retaliation. I could not sit there silently while the DOE broke the law and tried to cheat the students of their education.

Hawaii enforces laws very selectively. Drivers feel it’s ok to speed on streets and highways because there is almost zero chance of being caught. Illegal vacation rentals abound in Kailua and elsewhere because the laws have not been enforced. And so on. Throw in the mandatory reporting law as well. What are the consequences? Speeding causes highway deaths. Not enforcing HRS §350 contributes to children’s deaths.

As we may see in the case now underway, should allegations be proven, up to eight deaths may be involved or related. It is too early to assign any responsibility, and I do not suggest any here. But this is why the mainstream media should pay attention. Were these workers adequately protected by state departments?

One person’s whistleblower suit may shed light on conditions that affect many more, as well as the environment.

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