Indiana State Supreme Court deals another blow to State Employee Whistleblowers

More bad news for Indiana State Employees. Kara Kenney of WRTV reported on Monday November 13th, 2017 that Suzanne Esserman a 25-year veteran of the Indiana Department of Environmental Management (IDEM) lost her whistleblower case against the State of Indiana.

Kara Kenney writes:

The Indiana Supreme Court has ruled against an ex-state employee who said she was fired for blowing the whistle on misuse of state tax dollars.
In a decision handed down November 2, the Indiana Supreme Court found the state of Indiana is immune from a claim made by Suzanne Esserman under the Indiana False Claims and Whistleblower Protection Act.

Esserman told Call 6 Investigates she was fired from the Indiana Department of Environmental Management when she refused to rubber stamp questionable claims.

In a split decision, the Indiana Supreme Court agreed with the Marion County Superior Court’s dismissal of her lawsuit against IDEM.
Most of the Supreme Court justices said the state is immune from non-tort claims because the whistleblower act does clearly show the state could be sued for violations of the whistleblower statute.
Esserman’s attorney says Indiana workers should be concerned about the ruling, because it makes it more difficult for government employees to expose wrongdoing.
“Ms. Esserman and I are very disappointed about this decision,” said Esserman’s attorney Mary Jane Lapointe. “This decision has the effect of insulating the State from liability for its own misconduct and penalizes the employee who tries to stand up for the taxpayers.”
Justice Steven David dissented, arguing when the law says “employer,” state government should be included in that.

Esserman and her attorney are calling for the state legislature to update the law to specifically include state government as an employer that can be sued under the Whistleblower Act.

“I agree with the dissenting Justice that the term ‘employer’ is clear as a bell, and in our case the State is the employer so the law should apply,” said LaPointe. “We can only hope that the General Assembly will amend this law to make clear that an ‘employer’ includes the State.”

Esserman had worked for IDEM for nearly 25 years and was terminated on January 17, 2014, while working as a senior environmental manager.

The Marion County Superior Court decided IDEM had immunity and dismissed the case.

In December, the Indiana Court of Appeals overturned the dismissal of her whistleblower lawsuit and the case is now in the hands of the Indiana Supreme Court, which heard oral arguments in May.

The Supreme Court ruling pointed out that state workers have another option to sue, under the State Personnel Act.

But Esserman’s attorney said that’s not enough to make up.

“We have utilized that remedy, however, the State Personnel Act’s whistleblower provision does not protect those who object to illegal activity but do not put it in writing—and Ms. Esserman had more oral complaints than written ones,” said Lapointe.

Under the State Personnel Act the employee can’t collect more than 30 days of back pay, and no attorney fees.

Call 6 Investigates has contacted IDEM for a response to the Indiana Supreme Court ruling.

Kara Kenney had first covered this story back in October here.

While we all agree that the State's Whistleblower Law needs to be much better written. IR is skeptical that just enacting a great whistleblower protection law for state employees will do very good. Simply because if the law is never enforced it is meaningless. Longtime readers of INDY REPUBLICAN, ADVANCE INDIANA, and OGDEN ON POLITICS may remember Paul Ogden's fight to be reinstated at the Indiana Department of Insurance after he reported violations of law being committed by an upper-level supervisor. Mr. Ogden was promptly fired for doing his job and reporting illegal activity. We all appreciate and respect Kara Kenney's longstanding commitment to investigative journalism. Ms. Kenney's report on the IDEM Whistleblower reminds us all of Deanna Dewberry's report on Whistleblowers at the Indiana Department of Workforce Development back in 2012.

Here are some links to further information about past state employee whistleblowers:

Paul Ogden's posts on whistleblowing:

http://www.ogdenonpolitics.com/search?q=Whistleblower

http://www.ogdenonpolitics.com/2008/12/part-i-my-days-at-department-of.html

http://www.ogdenonpolitics.com/2008/12/art-ii-my-days-at-department-of.html

http://www.ogdenonpolitics.com/2008/12/part-iii-my-days-at-department-of.html

Paul Ogden and Gary Welsh's posts on the 2012 Department of Workforce Development's Whistleblowers:

http://www.ogdenonpolitics.com/2012/02/whistleblowers-attempt-to-report.html

http://advanceindiana.blogspot.com/2012/02/whistle-blowers-say-mismanagement-at.html