Does an employee have legal protection as a whistleblower if they report their suspicions of possible illegal activity before the feared bad act takes place?
In what is believed to be a precedent-setting case in Connecticut and a victory for Gov. Ned Lamont, a Hartford Superior Court judge this week said no.
The ruling Tuesday by Judge Stuart D. Rosen dismissed the case of a state employee who sued the state to get his job back after being fired for what he calls his attempt to prevent illegal action by the former Commissioner of the state Department of Public Health regarding a fine she later imposed on a Bridgeport bar.
The judge said that then-agency media spokesman Av Harris was not protected as a whistleblower because the action he was trying to prevent – the fine – had not yet occurred.
Harris based his claim on a provision in state statutes that makes it illegal for any employer to “discharge, discipline, or otherwise penalize an employee because the employee…reports a violation or a suspected violation of federal or state law or regulation.”
But Harris, Rosen ruled in a written decision, alleged only that Department of Public Health Commissioner Deidre Gifford “contemplated or planned potential violations of state law, but does not allege any actual or ongoing violations or suspected violations,” as the judge said state law requires.
Harris’ lawyers had argued that such an interpretation – presented to the judge by the state Office of Attorney General on behalf of the Department of Public Health and Lamont – exposes the public to harm caused by the employer’s act.
They compared that situation to an employer having to actually pollute a river and harm the public before a whistleblower would be protected for trying to stop the pollution.
Lamont’s spokesman, Max Reiss, declined to comment on the case Wednesday, as did the Attorney General’s office and Harris.
A former journalist and spokesman for Bridgeport Mayor Joseph Ganim, Harris was fired on Dec. 31, 2020 – two days after his actions in the Bridgeport case prompted then-commissioner Gifford to say he couldn’t be trusted.
Harris was an Executive Assistant, a position commonly known as a “political appointee,” and therefore had no recourse to his firing through channels available to classified, “civil service” employees.
The issue centers on Harris being ordered by his supervisor to call city officials Harris knew in Bridgeport to get police information about a sports bar, Mangoz, that the Department of Public Health planned to cite for a COVID-19-related violation.
The planned fine was prompted by a double-homicide at the bar on Dec. 20.
Harris says he was asked to try to get police officers who investigated the killings to make statements about an excessive number of patrons who were in the bar that night, including many who were unmasked, in violation of the state’s COVID-19 restrictions.
He immediately had doubts about the legality of doing so, his suit alleged, and so tried to bring his concerns to lawyers at the Department of Public Health that such a call might be considered interference with the ongoing criminal investigation.
Harris also doubted department’s authority to fine the bar, as agency regulations mandate that it cannot issue such a fine until it determines that a municipality had failed to adequately enforce the COVID-19 restrictions.
When Harris couldn’t reach lawyers at the agency, he contacted legal counsel in Lamont’s office, who told him to take no further action in reaching out to Bridgeport and that the Governor’s office would handle the situation.
Later the same afternoon, Harris was called to a meeting with Gifford and Lita Orefice, chief of staff of the Department of Public Health, who both admonished Harris for escalating his legal concerns to the office of the governor.
Harris received a termination letter from Gifford two days later, New Year’s Eve.
That same day, the department issued a $10,000 fine against the bar where the killings took place.
In the end, Judge Rosen ruled, the Department of Public Health did nothing illegal in issuing the fine, and therefore Harris’ firing — based on his reporting his suspicions to that effect — was not subject to whistleblower-protection laws.
“States with comparable whistleblower statutes similarly have held that the phrase ‘violation or suspected violation’ requires conduct that has already occurred, or is occurring,” Rosen said.