Labor & Employment Law

Whistle blowing pre-disclosure notice

By Harvey Randall, Esq.

Whistle blowing pre-disclosure notice
Brohman v NY Convention Center Operating Corp., App. Div., 1st Dept., 293 A.D.2d 299

The Brohman case discusses the issue of notice to the employer in cases involving al­leged retaliation in violation of the Whistle Blowers Law, Section 75-b of the Civil Serv­ice Law.

Sheldon Brohman sued the New York Convention Center Operating Corporation alleging he was wrongful discharge in violation of Section 75-b. The Appellate Division affirmed a Supreme Court justice's granting the Corporation's motion for summary judgment dismissing Brohman's complaint.

The ruling points out that Section 75-b(2)(b) requires that the individual, prior to disclos­ing information to a governmental body, "shall have made a good faith effort to provide the appointing authority or his or her designee the information to be disclosed and shall provide the appointing authority or designee a reasonable time to take appropriate action."

Civil Service Law Section 2.9 defines the term "appointing authority" as the "officer, commission or body having the power of appointment to subordinate positions." In this instance, said the Appellate Division, the appointing authority is the Corporation's Board of Directors and its designee would be its president and chief executive officer at the time of the alleged improper governmental actions.

Brohman conceded that he did not communicate his concerns of alleged wrongdoing by the Corporation's president to either the Board of Directors or its president and chief operating officer. Brohman contended that he had satisfied Section 75-b pre-disclosure notice requirement because he communicated his concerns to one of the Corporation's vice-presidents. However, said the court, even assuming that the vice-president can be considered the Corporation's designee, Brohman's argument was crippled by his own deposition testimony and affidavit. His statements, according to the Appellate Division, demonstrated that Brohman's communications with the vice-president were not for the purpose of informing Corporation of the alleged improper actions of its president. Rather,

said the court, Brohman used the vice-president:

As a "friend and a soundboard," went to him for "advice," did not ask him to put an end to the alleged improprieties, and had a mutual understanding with him that their conversa­tions would "absolutely" go no further.

Accordingly, Brohman's "pre-disclosure" of his concerns neither satisfied his duty to made a good faith effort to provide his employer with the information he proposed to disclose nor provide his employer with a reasonable time within which it could take appropriate action.

Full post as published by New York Public Personnel Law on March 13, 2008 (boomark / email).