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Ohio whistleblower ruling raising concerns

COLUMBUS, Ohio – A little-noticed Ohio appeals court ruling could have sweeping effects on state employees seeking to report noncriminal misconduct in government to the state’s watchdog.

In a ruling Dec. 30, the Franklin County Court of Appeals ruled that the deeds reported to the Ohio Inspector General must be criminal in order for whistleblower protections provided under state law to apply.

The Columbus Dispatch reports the decision has the 33,000-member Ohio Civil Service Employees Association and Republican state auditor calling for clarifications to the law.

“It sends the wrong message to state employees that their voice doesn’t count, that now they can be retaliated against when they speak out about unsafe equipment or contractor violations or incompetent managers,” OCSEA spokeswoman Sally Meckling told the newspaper.

Meckling said the ruling requires non-lawyers to make a legal determination as to what’s criminal and what’s not. “And if they are wrong, they could be punished.”

The long-running dispute involves now-retired Ohio Bureau of Workers’ Compensation lawyer Joe Sommer. Sommer’s initial complaint involved a reprimand letter he received in 2009 that he alleged represented retaliation for bringing to the Inspector General’s attention violations of state law associated with the nomination process to the Ohio Industrial Commission.

“This lack of protection is against the public interest because many state employees will be too scared of possible retaliation and harassment to report wrongdoing in state government,” Sommer said.

The appellate judges said in their 3-0 decision said Ohio employees have other avenues for reporting noncriminal activity that state whistleblower laws do protect, such as going to supervisors or to the state internal audit office.

The Ohio Attorney General’s office told the newspaper an unusual set of facts were in play and the case didn’t set any “groundbreaking” precedent.

Sommer had appealed his reprimand as a violation of whistleblower protections first to the State Personnel Board of Review, then to the Franklin County Common Pleas Court. He lost in both venues and appealed.

The other two venues didn’t determine that Sommer was not protected by whistleblower laws, the newspaper reported, but that he was reprimanded outside those protections for giving the false impression that he was speaking on behalf of the Workers’ Compensation Bureau or its legal department.

The appellate court ruled that Sommer’s arguments were moot because he was not protected by whistleblower laws, an issue that had not previously been raised by either side in the case.

Ohio Auditor Dave Yost called the appellate court’s ruling “technically correct,” but in terms of public policy he said it’s “180 degrees wrong.”

Yost, a lawyer and former prosecutor, pledged to speak to state lawmakers about a potential fix to whistleblower laws so that state workers “won’t feel their jobs are on the line.”

Ohio’s current inspector general, Randall Meyer, declined comment.

State legislators stationed a deputy inspector general at the Bureau of Workers’ Compensation after it was rocked by a sweeping state investment scandal in the mid-2000s. Sommer questioned the purpose of the office if employees who report misdeeds there aren’t protected.

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Information from: The Columbus Dispatch, http://www.dispatch.com

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