Attorney Bruce Voss joins producer/host Coralie Chun Matayoshi to discuss state and federal whistleblowing laws and allegations of whistleblowing by HPD Chief Joe Logan who stepped down under pressure, Issac Choy who got suspended from HTA, and Dr. Yuen at the Hawaii State Hospital who got demoted.
Bruce Voss is a partner in the law firm of Lung Rose Voss & Wagnild. He is a former business news reporter with 30 years of experience in real estate and land use litigation, complex business disputes, and employment law, including discrimination, retaliation, and whistleblowing.
Q. There have been quite a few allegations of whistleblowing lately when people like when former HPD Chief Joe Logan stepped down allegedly under pressure, Issac Choy got fired from HTA, and Dr. Yuen at the Hawaii State Hospital got demoted. What is whistleblowing?
Whistleblowing is when an employee or insider exposes illegal, unethical, or dangerous wrongdoing within their organization, like fraud, mismanagement, or threats to public health and safety. Without someone “blowing the whistle” and calling attention to what is happening, the activity might remain concealed. When fraud is occurring, whistleblowing can help prevent financial losses to the public and taxpayers and when public health and safety is at risk, whistleblowing can allow action to be taken before a catastrophe occurs. The basis for all these laws is the public good, and that by reporting and deterring employers and others from retaliating against employees or people who report, it’s supposed to encourage and promote people to actively go out and report wrongdoing that they see. While a lot of people think of it in terms of banking or securities or government contracts, it’s a broad range including, among other things, wildlife protection. There’s a very extensive federal statute that protects people who report wildlife violations. So, it is for the public good, and these are very important laws which are very extensive. A lot of people think that you only have a claim if you’re fired, but the law is actually very broad. If you are demoted, if your seniority rights are taken away, if your schedule is changed, just about any adverse employment action can be the basis for a whistleblowing claim.
Q. It takes courage to blow the whistle on something, and fear of retaliation is real. Are there protections for the whistleblower?
The history of this is interesting. It’s not part of what we call the Old English Common Law. Rather, it was created by statute, and it happened over time. It all started back in the Civil War, when the Union Army in the Civil War was having trouble with people giving, bad resources to the Army, like bad ponies or other supplies. Congress created something at the request of President Abraham Lincoln called the False Claims Act, that provided financial incentives to report fraud and abuse to the federal government. But from those beginnings back in the 1860s, it actually took quite some time to be extended to protection of employees, as we know them today. Congress created the Federal Whistleblower Act in the 70s and 80s, and then in 1987, Hawaii along with some other states adopted the Whistleblower Protection Act, which says that an employer shall not discharge, threaten, or discriminate against an employee because that employee reports, or is about to report an actual or suspected violation of law, rule, or regulation. And if the employee can prove that he or she reported, that it was a cause of the firing or other adverse employment action, and that he or she has damages, then substantial remedies are available.
There are both state and federal laws to protect whistleblowers.
Hawaii Whistleblowers’ Protection Act (Hawaii Revised Statutes Section 378-61)
Applies to all employees (both public and private), involves situations where someone reports or refuses to participate in violations of laws, rules, contracts or public safety violations and which results in termination, demotion, suspension, harassment, pay cuts, or hostile work conditions in response to their reporting. You have to file a claim within 2 years of the alleged wrongdoing, or report an action against the employee. If you prevail, the employee can get, among other things, back wages, fringe benefits, seniority rights, reinstatement, or possibly future pay, actual damages and attorney’s fees and costs. There is a limit on punitive damages for intentional bad acts – you can get up to 9 times the compensatory damage,
Federal Whistleblower Laws
There are many federal whistleblower law, and it depends on which agency is involved.
· False Claims Act (FCA) – involves fraud against federal programs or contracts and allows qui tam lawsuits (filed by a private citizen on behalf of the government to recover funds lost to fraud or wrongdoing) where the whistleblower can potentially receive treble damages (triple the amount of actual loss to the government).
· Occupational Safety & Health Administration (OSHA) – involves workplace safety violations that must be reported to OSHA within 30 days of alleged retaliation.
· Sarbanes-Oxley (SOX) – involves corporate fraud in publicly traded companies that must be reported to OSHA within 30 days.
· Dodd-Frank Act – involves securities and financial fraud and allows cash rewards.
· Whistleblower Protection Act (WPA) – involves federal government workers reporting misconduct
Q. Whether the whistleblower files a complaint under state or federal law, what do they have to prove?
- You reported illegal or unethical conduct to supervisor, regulator, or law enforcement
- Your employer knew that you reported the conduct
- Your employer took retaliatory action against you (e.g. firing, demotion, suspension, harassment, threats, unjustified negative reviews, pay cuts, changes in job duties)
- Your whistleblowing caused your employer to take retaliatory action against you
Q. What is former Police Chief Joe Logan claiming and what does he need to prove his case?
Logan alleges that Mayor Rick Blangiardi “forced him to resign by threatening him and his family” because he refused to comply with directives he felt were illegal (e.g. ordering homeless sweeps, providing police scanner access to media) and pushed back on the Mayor’s attempts to manage personnel decisions (i.e. hiring public information officers). Logan also claims he suffered severe emotional distress due to the alleged coercion. He is seeking $534,240 in wages for the remaining two years of his contract, $250,000 in damages for emotional distress, reputational harm, and attorney’s fees, and a written apology from Mayor Blangiardi.
In his whistleblower claim against Mayor Blangiardi and the city, Logan first needs to prove that he made a report questioning the legality of the homeless sweeps and providing police scanner access to the media, and it’s not clear whether or not he actually made these reports, or whether they were violations of law. Second, it’s also not clear that they were a motivating factor or causation in whatever Mayor Blangiardi was unhappy about because Mayor Blangiardi’s been very vocal about his other concerns about the former chief’s performance. And lastly, Mayor Blangiardi did not have the power to, and in fact did not, terminate his employment contract. The police chief resigned.
Q. What is former Hawaii Tourism Authority (HTA) Vice President of Finance Isaac Choy claiming and what does he need to prove his case?
Choy alleges that he was placed on administrative leave without pay for reporting serious violations of state laws, rules, and contracts (e.g. HTA Board Chair Mufi Hannemann using the convention center without paying, procurement violations involving HTA’s vendor Council for Native Hawaiian Advancement, significant interest expenses incurred due to late payments to HVCB, nearly $1.5 million marketing initiative executed without proper procurement and questionable travel expense claims). HTA alleges that racist and sexist remarks (e.g. using the phrase “dumb Hawaiian”) justified his removal. Choy is seeking reinstatement, back pay, and potential punitive damages for wrongful retaliation under the Hawaii Whistleblower Protection Act.
Full disclosure, I represent Mr. Choy in this whistleblower action. Mr. Choy made numerous and repeated reports of violation of law and violation of state contracts as to procurement, as to misuse of state facilities, as to intentional disregard of state contracts. He made those reports to a lot of people, to state legislators, to the attorney general, to the legislative auditor, and those reports, frankly angered some people in power, who apparently thought that Mr. Choy was unnecessarily creating problems. The state tourism authority placed him on leave without pay, something that almost never happens, except in workplace violence incidents, and then, fired Mr. Choy by a letter emailed by the Governor’s chief of staff.
Often in these cases, there’s a dispute as to whether a report of violation of law is made. Not a dispute in this case, Mr. Choy did that. Also, placing Mr. Choy on leave without pay and then firing him from the Governor’s office was relatively close in time (what we lawyers call temporal proximity) to the reports which creates an inference of causation. The employer has to come forward with a legitimate, non-discriminatory reason for the adverse action (here they are alleging that Mr. Choy made racial and sexist remarks), and then the employee has an opportunity to prove pretext – that those reasons are false, and they’re hiding the real reason that you were fired in retaliation for making these reports. A large majority of those allegations that were made initially against Mr. Choy have proven to either not be substantiated or not what they were originally reported to be, and then it’s simply up for a jury to decide whether or not those were the real reasons that Mr. Choy was fired, or whether that was a pretext for whistleblowing.
Q. What is Hawaii State Hospital Psychiatrist Dr. Brenton Yuen claiming and what does he need to prove his case?
Dr. Brenton Yuen, a staff psychiatrist who had been serving as Chief of Psychiatry at Hawaii State Hospital since 2023, alleges that he repeatedly raised alarms about severe understaffing and dangerous working conditions at the hospital, including frequent staff assaults and overwhelming patient loads, which resulted in his demotion. Yuen is seeking reinstatement to his leadership position, damages, and injunction to prevent the hospital from retaliating against other employees who report concerns, aiming to protect future whistleblowers on staff. Everyone knows that there’s been a long history of violence and problems at the State Hospital including a stabbing that killed a nurse recently. There has been chronic understaffing that the state, for whatever reason, has been unable to address. In a recent case that actually also involved a worker at the State Hospital, the Intermediate Court of Appeals ruled that the employee doesn’t have to identify the specific law that they’re blowing the whistle on. It’s enough that the employee reported serious workplace violence or workplace safety issues. This makes sense because employees are not lawyers and not expected to know every law. If they legitimately report a problem, which there appears to have been at the State Hospital, then the employer cannot retaliate against the employee.
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Disclaimer: this material is intended for informational purposes only and does not constitute legal advice. The law varies by jurisdiction and is constantly changing. For legal advice, you should consult a lawyer that can apply the appropriate law to the facts in your case.