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The Honolulu Advertiser
Posted on: Sunday, August 20, 2006

Whistleblowers say ordeal not worth it

By Rob Perez
Advertiser Staff Writer

Clockwise, from top: Norman Salsedo, George A. Smith Jr., Solomon Silva and Kenneth Mersburgh at Kailua Wastewater Treatment Plant, where all worked. A jury found the city retaliated against three of them.

REBECCA BREYER | The Honolulu Advertiser

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George Smith Jr. wouldn't do it again.

Neither would Kenneth Mersburgh, Solomon Silva, Norman Salsedo nor Charles Wiggins.

All five were Hawai'i whistleblowers whose reports of wrongdoing the past several years led to criminal prosecutions of fellow government workers for charges ranging from theft to bribery.

While cracking down on illegal activities was a positive outcome, the five said the retaliation they suffered for stepping forward was so great that they would keep their mouths shut if faced with similar circumstances again.

"It's sad to say (that), but it just wasn't worth what I went through and what my family went through," said Wiggins, a former Honolulu Liquor Commission investigator whose testimony helped convict eight fellow investigators but who eventually left the state because of the fallout.

Smith, who suffered retaliation after disclosing abuses at Kailua Wastewater Treatment Plant, said the stress contributed to health problems and became a major drag on his life. "You end up bringing your problems home. You don't sleep at night. It snowballs right to the bottom of whatever you're involved with," he said.

As the state and city in recent years have taken steps to encourage more people to report fraud and other wrongdoing, Smith, Wiggins and others who have gone through the process say it generates so much strain at work and home that they would advise others to think twice about stepping forward.

Not even the prospect of a sizeable financial award would be enough to tilt the balance, they say.

Two other whistleblowers said they would do it again, either because they were obligated as law enforcement officers to do so or because they believed people were being physically harmed. But even they advised caution, noting the constant harassment they endured.

If government insiders are reluctant to blow the whistle, the public can pay a hefty price. Fraud and waste can go unchecked.

Had two whistleblowers not stepped forward, for instance, to disclose billing irregularities at the state's largest long-term-care provider, Hale Nani Rehabilitation and Nursing Center, the state may not have reached a 2003 settlement that resulted in more than $1 million in penalties and reimbursements going to the government.

The two Hale Nani whistleblowers split a $250,000 reward.

ADVICE: DON'T DO IT

The fallout that whistleblowers tend to suffer is not a problem unique to Hawai'i. No matter the setting, those who go public with charges of wrongdoing often are branded as snitches or troublemakers, bucking in some cases an accepted workplace culture.

Stepping forward can be so traumatic that the Government Accountability Project, a national nonprofit group that defends whistleblowers, doesn't advise people to do it.

"It weighs so heavily on a person's life that we don't actively encourage it," said Dylan Blaylock, the project's communication director. "We leave that decision to the person."

Two recent cases in which Honolulu government workers won their whistleblower lawsuits underscore the difficulties such tipsters can face even when they prevail at trial, which is rare. Most cases are resolved before going to trial.

Howard Tom Sun, a city painter, alleged that he was written up in 2000 by his supervisor, isolated, not given job duties and denied leave after he reported concerns about workplace hazards, including discovering a punctured gasoline tank at the Pali Municipal Golf Course. At one point, Tom Sun said in a sworn affidavit, a supervisor called Tom Sun's co-workers to a meeting and threatened them if they helped with his whistleblower case.

A year ago, a federal jury found in favor of Tom Sun and awarded him $1.5 million in damages. At the time, Tom Sun said the jury was sending a message to the city that it should be more concerned about its workers and the public.

But U.S. Magistrate Judge Barry Kurren several months later virtually wiped out the award, reducing the amount to $1. Although Kurren upheld the jury's findings that Tom Sun's constitutional rights were violated after he spoke out, the judge ruled that Tom Sun failed to prove any actual damages and therefore was entitled to only a nominal award of $1. Kurren also denied Tom Sun's request that the city pay his attorney fees, which totaled more than $147,000, according to court records.

In his January written ruling, the judge noted that Tom Sun continued to work as a city painter, that his duties and work conditions appeared to be unchanged and that the city's policies for painters essentially remained the same.

"In short, this litigation accomplished little beyond giving to the plaintiff the satisfaction of having a court recognize that his constitutional rights were violated," Kurren wrote.

Venetia Carpenter-Asui, Tom Sun's attorney, argued that the court denied her client the opportunity at trial to provide evidence regarding damages. In a court filing, she asked for a new trial, but Kurren denied that request as well.

Carpenter-Asui and Tom Sun did not respond to Advertiser requests for comment.

CITY'S RETALIATION

Although favorable jury verdicts for plaintiffs are rare in whistleblower cases in Hawai'i only a few have been reported over the past decade a second one came in May.

A state jury found that the city retaliated against Smith, Silva and Salsedo, who at one time all worked at the Kailua sewage treatment plant, for reporting suspected wrongdoing several years ago. The jury awarded each $25,000 in damages.

The jury did not find in favor of Mersburgh, another plant worker and the fourth plaintiff in the lawsuit. Mersburgh was the first to report suspected wrongdoing to police and prompted the other three to come forward.

Their whistle-blowing led to an investigation that resulted in one Kailua plant supervisor, Harry Hauck, pleading guilty in 2004 to theft, and another supervisor, Jay Gonsalves, pleading no contest last year to theft.

Silva and Salsedo told police they were taken by Hauck to work on a sprinkler system at the home of Gonsalves' relative while on overtime with the city. Hauck and Gonsalves were friends. Salsedo told police in one instance in 2002 he spent more than four hours at the private residence.

Yet after the wrongdoing came to light, both supervisors were promoted while the four rank-and-file employees suffered retaliation, the workers said.

"The system is a failure," Silva said.

In court documents, Hauck's attorney even cited the fact that his client was promoted after being disciplined to argue that the criminal charges should be dismissed because the case was old. Two bribery charges subsequently were dropped.

For at least three of the four whistleblowers, their lives have since taken a turn for the worse. Mersburgh is on unpaid leave, and Smith is fighting the city over compensation issues for a planned retirement he said was hastened by the retaliation. Silva was fired for allegedly threatening a supervisor. The jury ruled the firing did not violate his rights, but Silva said the incident happened because of the retaliation.

Only Salsedo, a mechanic now working at the city's Sand Island treatment plant, has fared better on the job, having been promoted twice. But even he believes the system leaves whistleblowers unprotected from harassment. He said he was the target of threatening and intimidating comments, sometimes even getting calls at home.

Asked if he would ever blow the whistle again, Salsedo didn't hesitate with a reply: "I wouldn't even think twice about opening my mouth. I would just look the other way."

The city declined to answer questions about this case or others because they involved personnel matters, which are confidential.

Rodney Ching, Hauck's attorney, said his client accepted responsibility for what he did but isn't the criminal some people might make him out to be. He noted that Hauck's guilty plea was deferred, and the city promoted him because his bosses recognized the incident was a minor blip in an otherwise stellar career.

Gonsalves' attorney didn't respond to requests for comment.

ROUGH ROAD TO COURT

It is unusual for whistleblower cases to enter the court arena, partly because attorneys are reluctant to take them on unless the potential for damages is enough to justify filing a lawsuit.

Over the past 12 years, the city has handled only 14 such lawsuits, according to city figures. Five, including the Tom Sun and Kailua sewage-worker cases, resulted in financial settlements or jury verdicts against the city. The settlements and verdicts totaled nearly $1.2 million. Seven of the lawsuits are still pending, while two were dismissed.

Employees can avoid the potential fallout from blowing the whistle if they do so anonymously. But workers say that usually doesn't result in a serious investigation. Anonymity also tends to make investigating a case more difficult because investigators can't ask follow-up questions.

While Hawai'i whistleblowers say they weren't afforded adequate protection from retaliation, the state's Whistleblower Protection Act is considered a strong one.

"I think Hawai'i has as broad protections as anywhere," said attorney David Simons, who represents whistleblowers.

The law basically prohibits employers from retaliating against an employee who reports or is about to report a suspected violation of law or regulation. In 2002 it was strengthened to broaden the circumstances under which the law applies and to lengthen the statute of limitations to two years, instead of 90 days.

The problem, according to those who have gone through the process, is that the law doesn't prevent the many different ways, sometimes subtle, sometimes indirect, that a person can be harassed and intimidated before and even after a lawsuit is brought.

Detective Kenneth Kamakana, a highly decorated Honolulu Police Department officer who received $650,000 from the city in 2003 to settle a whistleblower case, said he was subject to constant harassment, had his car vandalized, was shunned by other officers and given the leastdesirable assignments after reporting to the FBI about alleged wrongdoing in HPD's elite Criminal Intelligence Unit.

"It was like hell," Kamakana said.

In a recent interview over breakfast, Kamakana said he still suffers nightmares because of the horrible experiences. Yet he said he would report suspected wrongdoing again if faced with similar circumstances because "that's my job. If you can't do your duty, you don't belong in this occupation."

Dr. Terry Allen, a former Hawai'i prison physician, likewise said he would blow the whistle again, although he probably wouldn't pursue a civil lawsuit.

Allen was awarded $110,000 in damages from the state in 1999 for retaliation he suffered after publicly disclosing inmate abuse.

The state appealed the federal court decision, but the 9th Circuit Court of Appeals upheld the ruling in 2002. Allen's attorney fees, which the state also had to pay, totaled more than $500,000.

Allen, now a Washington state resident, said the system is not designed so the typical worker can fight back. The tremendous amount of time and cost involved in taking such a fight to court with no guarantee of winning makes the process beyond the reach of most people, he said.

'DAVID VS. GOLIATH'

Attorney Michael Lilly, a former state attorney general, said he's turned down hundreds of people who had meritorious whistleblower or wrongful termination cases over the years, not because they lacked merit but because the potential damages didn't justify pursuing litigation.

"We're talking about in most cases David vs. Goliath," Lilly said. "Those employees are taking on a gorilla who has most of the evidence" and tremendous resources to devote to a case.

Many people don't even bother to call attorneys, let alone report their concerns to superiors.

Randy Perreira, deputy executive director of the Hawai'i Government Employees Association, said he hears about cases in which workers are reluctant to speak up because of retaliation fears.

"That feeling is very real," he said.

Perreira noted that the union in a few cases in recent years has pursued grievances on behalf of employees who alleged they were retaliated against.

To encourage people to report fraud against the government, the state enacted a law in 2001 that allows whistleblowers to get a percentage of money recovered by the government.

Attorney Tom Grande, who has represented clients using that statute, believes it has had a major effect on not only recovering money for the government but stopping practices that hurt the delivery of healthcare to seniors and the poor.

In one such case, the state reached a $4 million settlement in a medical-fraud lawsuit in 2001, and the two pharmaceutical company employees who disclosed the illegal recycling of prescription drugs split $750,000.

TREATED LIKE 'A PARIAH'

The city encourages workers to report misconduct and provides a variety of ways, including a complaint line, to make such reports.

Whenever a city employee files a complaint about another worker, both parties are reminded that retaliation is prohibited, according to city spokesman Bill Brennan.

When the whistleblower law works, the wrongdoing is identified, corrected and no retaliation occurs, Brennan said.

He questioned the notion that few cases come to light because employees are afraid to report suspected wrongdoing. "In the end, there may not be anything about which to 'blow the whistle,' " Brennan said in a written response.

Wiggins, the former city liquor inspector, said the city didn't seem to welcome his stepping forward. The city never even thanked him for his role in helping federal authorities get convictions of the other liquor inspectors, he said.

"The city treated me like I was a pariah, (like) I was the bad guy," he said.

In 2003, Wiggins settled his whistleblower lawsuit against the city for $387,500. The government did not admit liability.

But even after Wiggins moved to the Mainland, the case continued to haunt him.

Wiggins said he was turned down for numerous law enforcement jobs after the agencies learned he was a whistleblower. "No one wants to hire one," he said. "It was like poison."

Only three months ago, Wiggins landed his first job in law enforcement since leaving Hawai'i. He was hired as an investigator for the Virginia public defender's office. But Wiggins said his nine years with HPD and his nine years with the liquor commission were not counted toward his salary, essentially meaning he is getting rookie pay.

Despite all that has happened, Wiggins doesn't regret blowing the whistle. But he said his experience sends a clear message to others contemplating blowing the whistle. "What it says is you're better off keeping your mouth shut," he said.

Reach Rob Perez at rperez@honoluluadvertiser.com.