Philly City Employee Alleges Whistleblower Retaliation
A former Philadelphia city employee is alleging that he was fired from his job at the Controller’s Office for refusing to participate in a cover-up of misused city money.
Rafael Kaplan was a recently-hired auditor who was reviewing a city bond program in the fall of 2011. During the audit, he discovered that $2.2 million had been spent on back taxes and other bills by a cultural institution called the New Freedom Theatre, when the enabling legislation indicated that the money was for capital and infrastructural improvements.
What’s more, the Controller’s Office had signed off on the expense before the money was ever spent. When he reported his findings, Kaplan claims he was called into a meeting with his supervisor and told that the audit would be issued without any mention of the theater.
According to the auditor’s account, “I told the Post-Audit Deputy Controller that I did not feel comfortable signing off on an audit report like that. The Post-Audit Deputy Controller just gave me a dirty look and told me that the Philadelphia City government and the Controller’s Office could not afford the embarrassment that the New Freedom Theatre grant had the potential to cause.”
Kaplan was subsequently fired; the official reason stated on his termination paper was that he had used a swear word on an anonymous survey several months previously, following a presentation on white collar crime. The audit was suspended four days after his termination, then finally issued nearly a year later following media inquiries as to what had become of it. There is a brief mention in it of the theater, criticizing the grants for not ensuring the institution’s ongoing viability nor showing benefit to city residents.
No one from the Controller’s Office has publicly commented on Kaplan’s allegations.
How To Blow the Whistle
If Kaplan were to bring a lawsuit against his former employer, there are several criteria his claim would have to meet to be viable for a retaliation case under Pennsylvania’s whistleblower law. While whistleblower laws vary from state to state, most share some common elements.
“You’ve got to show there was a contemporaneous complaint, either to the employer or to someone outside of the company,” says Samuel J. Cordes, a labor and employment attorney with the Pittsburgh firm Samuel J. Cordes & Associates. In other words, the employee must have spoken up about a misdeed and the employer must have known he or she spoke up.
Then, “you have to show some sort of causal connection,” Cordes says. “That can be shown by suspicious timing, like I go over to the District Attorney’s office to complain, get back and I’m fired. Or, you can show a pattern of antagonism after I’ve complained . . . Or you can show that the reasons the employer gives for making the decision to let me go are inconsistent, implausible or contradictory.”
A potential plaintiff would also need a valid complaint in the first place. “The other thing that you have to show in a Pennsylvania whistleblower claim is that you complained of something that involves waste or wrongdoing. Wrongdoing is something that’s illegal, or in violation of some sort of professional ethics,” Cordes says. “Waste is someone squandering public funds.”
Would-be whistleblowers may also have the option of bringing a suit in federal court. “Public employees have a right to speak on matters of public concern,” Cordes explains. “If my employer retaliates against me because of that, that becomes a First Amendment violation which would make it a federal case.”
Employees who speak up would be advised to document everything they can to back up any potential claim if they think they might face retaliation. The controller’s audit report, which was eventually issued this October, supports many of Kaplan’s allegations — the specific expenditures, the office’s pre-approval of the money and the suspension of the audit following his termination. However, the crux of his complaint essentially relies on a “he said, she said” allegation — the contents of the meeting with his supervisor.
That’s not uncommon for retaliation cases, Cordes says. “Most employment cases come down to that. You say ‘A,’ your employer says ‘B,’ and the jury makes a determination on credibility,” says the attorney. “That’s why we have trials.”