Massachusetts Needs Meaningful Shield, Public Record, Open Meeting, Whistleblower Laws

Tuesday, October 2, 2007

The government will always cover up its mistakes if it operates in secret and that it was up to journalists to expose the truth…..Robert Schieffer, CBS News Reporter.

News Reporters and Their Sources Deserve Protections Mandated by Law

An editorial in the Boston Globe in the last days of the formal 2006 Massachusetts legislative session this past July stated what laws should be passed before adjournment. There was a statehouse legislative committee hearing at the same time relative to a proposed new law to protect news reporters from disclosing their sources. This should have been included in The Globe editorial of must laws to be passed especially with the current revelations coming forward on persons not reporting improprieties on one of our nation's grandiose scandals, Boston's Big Dig.

Governor Deval Patrick is now telling publishers and reporters that he supports a shield law adding weight for passage while criticizing the media industry for the manner of reporting on his campaign for the office.
Trial lawyers, legislators, and others wanting to patronage the media are at the forefront to promote new Shield Laws. Unless done right, we will only have special legislation passed for a special interest group that will have no affect to deal with waste, fraud, and abuse on behalf of citizens and taxpayers in Massachusetts. Sincere sources and whistleblowers often stand alone doing the public well being by reporting improprieties by coming forward must not be left behind. They must same or stronger protections from intimidation and harassment.
Sincere News Reporters Should Never Be Threatened With Jail for Refusing To Disclose Sources

Local examples of the threat of jail time could have been given were to Boston WCVB Channel 5 reporter Susan Wornick and Providence WJAR Channel 10 reporter Jim Taricani. They testified at the legislative hearing about not disclosing sources in corruption and scandal trials. State or federal government should not be allowed to file charges against honest reporters and their sources. Governments should be doing their own investigations and not intimidating the press from reporting the news and protecting sources.

State Employees and Legislators Personal Assets Should Not be Threatened by Lawsuits From Companies Doing Business with State Government who are being Investigated-Protections Are Needed

The State Public Employee Whistle Blower law, MGL C149s185 should be further enhanced. Several years ago, two conscientious state engineers Paul E. Constantino and Steven Quinlan I had asked to come forward and testify at a sanctioned legislative hearing about the Massachusetts Highway Department purchasing more outdated dysfunctional equipment being sold by a former head of the Federal Highway Administration, Raymond Barnhart. The Massachusetts Inspector General even issued a report stating buying more of the outdated technology and poorly maintained equipment if purchased was not in the state's best interests. However, the Massachusetts Highway Department went along and made more purchases. The two engineers along with then Northampton Chair of the House Committee on Post Audit Representative William P. Nagle were sued personally placing their own assets at great risk for testifying before the committee about allegations of impropriety and dysfunction relative to purchasing more of the failed archaic "Call Boxes" that lined interstate highways. Shocking to witness was the company Signal Corporation hiring a high profile former State Attorney General, Francis X. Bellotti to be part of the legal proceedings. Signal Corporation also hired Democratic public relations political consultant Michael Goldman. News articles began to appear in the legislator's hometown newspapers Northampton Gazette and Springfield Republican. The suit halted some of the activities the committee was also doing relative to investigating the Big Dig Juggernaut. The call box company instituted a so called harassment "slap suit" to personally sue the individuals that could have taken their personal assets. This diverted attention from the impropriety of the original contract purchase that took 3 court decisions to remove against the legislator and the two state engineers. This action enabled me with the assistance of several co-sponsors and others to craft state legislation calling for a Whistle Blower Law. Unfortunately, the law was unsuccessfully opposed by the worker advocate Massachusetts State Labor Council AfL-CIO who wanted different legislation that they were doing little to seek passage. However, several co sponsors and public employee unions broke with the Labor Federation, along with Democrat and Republican legislators, and good government advocates to strongly advocate passage and enact the law.

Next, I unsuccessfully filed legislation which attempted to obtain legislation to prevent legislators and conscientious public employees to be victimized by frivolous law suits for bringing allegations of wrong doing and testifying before a duly sanctioned legislative committee. A shield that legislators, government employees, private citizens and reporters reporting wrongdoing must have. However, there are still no protections for legislators, public employees, reporters, and citizens that speak or report about waste, fraud, and abuse at duly called legislative hearings or provide information. This is the reason I advise conscientious employees who want to report government improprieties to seek their own counsel or free assistance on how to proceed to report wrongdoing from the Washington based watchdog group Project on Government Oversight. I give as a reason the " motorist call box" case as an example stating even legislators have no protections from harassment personal suits against their own assets in carrying out investigations and testifying at their own legislative hearings. This issue must be addressed in any potential proposed Shield Law to have any real meaning.

Whistle Blowers must be Careful in Disclosing Government wrongdoing to Law Enforcement. The Wrongdoers get protected and their legal fees and Judgments are paid by Taxpayers while Whistle Blowers can be abused by their Disclosures.

There is an inherent conflict that now exists and is becoming a problem with the enforcement of The Whistle Blower Law. This results in great risk to both public employees and reporters. Government employees and others cannot bring allegations of wrongdoing or impropriety to the State Police or Office of Attorney General. The Attorney General is the lawyer for any and all lawsuits brought against the commonwealth. Therefore, the government employee after presenting information to the Attorney General's Office next goes back to his/her discipline ensues. The employee next is terminated or unfairly disciplined and is forced to file a Whistle Blower lawsuit. The Attorney General comes in and defends the wrong doer agency and perpetrator political appointee (I made note of this in a past Globe guest editorial). In addition, in the case of the "Saltonstall Whistle Blower suit", the state legislature, without objection from the Attorney General passes legislation and the Governor signs into law state tax monies to be given for a personal court judgment made against the perpetrator who was accused of allowing state employees and the general public to be exposed to asbestos contamination that the Whistle Blower attempted to bring to his attention and other high government officials. These shameful actions by both the highest ranking elected Republican and Democrat officials exemplifies a new era in public mistrust in state government accountability and oversight.

Another example is the special interest protection law under MGL C258 passed to protect without certainty constitutional officers and not other public employees or investigating legislators by option as a result of the former turnpike member lawsuit against former Governor Jane Swift on his infamous turnpike board dismissal. A special interest law passed to protect liability for guilty constitutional officers, defended free for wrongdoing by the Attorney General, and especially the governor facing a suit for alleged impropriety or because of acting improperly is wrong. The new law passed because of former Governor Jane Swift now gives all constitutional officers the ability to harass, intimidate, and potentially stop government employees not agreeing with them or exposing their own wrongdoing and face no financial liability. If they are found wrong such as former Governor Swift, the taxpayers will pick up the bills. Yet, legislators and all other government employees have no such protections under this new special interest law. This issue must be addressed in any potential Shield Law proposal

Attorney Generals Do Not Enforce Public Records Law Decisions under State Law made by The Secretary of State

There is also another component to keep in perspective as we process in gaining a Shield Law. There is a vicious battle that has gone on with the previous Attorney General L. Scott Harshbarger and then Secretary of State Michael J. Connolly that has carried on with the current incumbents Attorney General Tom Reilly and State secretary William Galvin. The Secretary of State makes decision on what is a public record and what is not a public record. The Attorney general is obligated by state law to enforce the decisions which are not done. The current public records supervisor Alan Cote made note of this in a public records article which appeared in the Quincy Patriot Leger newspaper that the current Attorney General Tom Reilly will not enforce the public record law against violators. The Boston Phoenix under the former Attorney General Harshbarger noted the conflict and lack of action to no avail. I again attempted to resolve this bitter conflict by having legislation filed through the leading accountability in government advocate State Representative Marie J. Parente, of Milford supported by both the press and publishers associations proposing a Freedom of Information Commission to determine swiftly what public government records are public. News editors and citizens should not have to use expensive court action on their own to force disclosure of any public record already paid for by tax dollars.

Code of Conduct Needed to Insure Protection from Reporters False Reporting

Additionally, a new code of conduct for reporters and media owners is needed. The recent Boston Globe safety memo story on Big Dig Tunnel inspections and dysfunction in reporting is a reason and justification. There should be no zealous witch hunts or inaccurate reporting by reporters. Media groups, Press and broadcast associations need to police and punish their own. The code is required especially with all the downsizing and multiple monopolistic style ownership in media markets due to severe advertising deficiencies causing a lack of proper revenues giving undue pressures on reporting and editorial integrity. It is sad to witness reporters reporting when their resumes are out to government officials or businesses they are reporting seeking employment due to a lack of employment openings and career advancement in their own chosen profession of journalism.

News Coverage and investigative reporting lacking

We should note that with the lack of syndicated reporters stationed at the statehouse and lack of designated personnel by media owners. Statehouse coverage of hearings and investigative journalism is at an all time low. The multi ownership of radio stations and news outlets coupled with unheard of until recent years of news rooms downsizing throughout Massachusetts newspapers, media layoffs, and corporate raiders such as Jack Welch and high priced public relations pen for hire wanting to buy the Globe is causing a serious challenge to integrity in journalism. The survival peril of The Herald mode may cause Boston and the region to be a one newspaper town.

Shield Law Must be Done Correctly

I would request that any proposed shield law be done right to contain an updated whistle blower component, sunshine, freedom of Information for public records disclosure and disclosure laws and not do it piece meal. Failure to do so, will only fragment good intentions and become special legislation for a special interest group, lawyers courting favor with the media, and legislators pontificating to enhance their own self serving attention from the media. The failure of shield law advocates to not be inclusive and solve long standing difficulties is giving the appearance of journalist elitism and is self serving that will not protect Massachusetts Citizens and Taxpayers.