Whistleblower says new charges are retaliation by state officials

John Howe, a state employee, will hear new allegations against him Wednesday in a closed meeting at the Vermont Department of Human Resources.

Howe says the latest charges of “inappropriate comments” are the latest in a series of trumped up excuses to retaliate against him for speaking out against employment practices at the state’s vocational rehabilitation office, where he works.

John Howe. Courtesy photo

John Howe. Courtesy photo

Howe, a steward with the Vermont State Employees Association, filed a lawsuit to that effect in April. He’s charging four state agencies and departments and seven management staff with violating the state’s whistleblower protection act.

Human Resources Commissioner Kate Duffy said she could not speak in detail about the ongoing investigation.

Howe, on the other hand, has publicized his situation, which he says illustrates a broader culture of intimidation and low morale in the Department of Disabilities, Aging and Independent Living.

He said the goal of the lawsuit is to call out management and administration officials for using investigations as a tactic to discourage employees from speaking up about things they think are wrong.

“It’s kind of chilling, the effect it has on my colleagues,” Howe said. “They go, ‘John, I’m glad you’re doing it. I can’t do it. I’m too afraid.’”

Duffy says the fact that all the defendants in Howe’s lawsuit are charged not just in their official capacity, but also as individuals, represents a form of intimidation itself.

“When a state employee acts in a capacity of the state, you sue the state, and it is the state’s responsibility to defend that,” Duffy said. Howe’s decision to bring suit against individuals sends a message that they should think twice before launching an investigation, she said, because their personal assets could be on the line.

The investigation into Howe began when a complaint about alleged misconduct came to Human Resources from DAIL. Duffy said it’s her department’s obligation to investigate complaints, so she has no intention of halting the probe as his lawsuit requests, she said.

But Howe maintains that the investigation itself is part of the retaliation, and that Duffy is just as much a party to it as every other supervisor in his chain of command, right up to Secretary of the Agency of Administration Jeb Spaulding.

Howe is back at work now, but was placed on paid administrative leave for about two weeks when the investigation began.

The timing of that probe aligns with his legislative testimony concerning overuse of private contractors for public work.

The chronology is outlined in his lawsuit: First Howe told lawmakers that dual management structures between VocRehab and its private contractor, The Vermont Association of Business Industry and Rehabilitation, were wasteful. He also questioned the lower wages paid by VABIR, whose employees are not represented by VSEA’s collective bargaining agreements.

Then some of his VABIR colleagues were questioned about his performance, and subsequently negative supervisory feedback was issued to Howe. Two VABIR workers were fired, and later a volunteer was removed from his supervision.

A formal investigation was launched to look into charges that Howe allowed nonstate employees to sign state documents on his behalf, and that he let nonstate employees use his state-issued cellphone.

Howe says both allegations of misconduct are baseless: He let supervised employees sign specific documents for the sake of efficiency, but he was the one who authorized any state payments stemming from the forms, Howe says. And without a land-line phone system in his office, Howe says he had the volunteer answer work-related calls to his cellphone while he met with clients.

Howe said he has not heard specifics about the charges of inappropriate comments he’ll answer Wednesday.

The VSEA will hold a meeting among members Thursday in Williston to explore the possibility of forming a labor-management committee to look into the broader issues of morale within the Department of Disabilities Aging and Independent Living.

CORRECTION: The two VABIR employees who were fired were not supervised by John Howe.

Hilary Niles

Comments

  1. Dave Bellini :

    This administration should reconsider how it handles conflict with employees. The Department of Human Resources has changed a great deal since the middle of the Douglas administration.
    .
    What used to be the state Department of Personnel has morphed into the new Department of Human Resources. The Department of Personnel used to be a department that looked to help employees, foster their development and training. They did good things like bring in an EAP to help employees. They used to talk about making state government “the employer of choice.” The union and the Department of Personnel worked together to create the current state employees health plan, one of the best anywhere. It endures to this day.
    .
    The new Department of Human Resources is a different animal. It has become more of an employee police department. The past several HR commissioners have all been lawyers, not HR professionals. The new Department of Human Resources began hiring “investigators”, something new, to police employees. HR has become a department dominated by prosecutor like lawyers and “investigators” many whom are ex-police. The entire affect has changed.
    There have certainly been employees that needed to be investigated and employees that were fired and rightly so. Most of the investigations are likely valid situations to examine,. However this new power can be used as a tool, to quite and control employees. There isn’t enough check and balance. No one appears to investigate whether the launch of an investigation on an employee is in and of itself a form of harassment. Are managers calling for employees to be investigated just to shut them up?
    .
    One of the dirty little secrets of state government is that many ex-employees were suspended with pay for many, many months. Put out of work but receiving full pay while being “investigated.” Occasionally, the employee really didn’t do anything wrong but the state just won’t admit they made a mistake. So after many months, (even years?) the state pays the employee off to retire or quit. They have to sign lengthy documents saying they can’t reveal what happened to them. The state sometimes uses tax dollars to purchase silence. Sometimes all the innocent employee wants is an apology and to clear their name. The state isn’t ALWAYS right and employees are not ALWAYS wrong.
    .
    I urge the administration to carefully examine its use of this power. Bring back more transparency and accept the fact that it can sometimes be misused.

    • J. Scott Cameron :

      As a former Commissioner of Personnel (Kunin Administration, 1985 to late 1987) I reluctantly have to agree with a lot of David’s observations.

      I am also concerned about how and when the present leadership of the Department of Human Resources makes decisions about what and when they will investigate. I represent a client who made a serious personnel complaint, in writing, against a supervisor almost a year ago. The Commissioner of his department failed to investigate it and the matter was bumped up to Commissioner Duffy, as per State personnel regulations. To our knowledge no action has been taken to investigate this complaint to date, and my client, a probationary employee with few rights, has since been fired by the person he complained about.

      It was interesting to hear Commissioner Duffy say ” it’s her department’s obligation to investigate complaints…”. If so, she has has not fulfilled her obligation to my client. When complaints are selectively investigated, or not, something is wrong.

  2. Cindy Seguin :

    As a state employee union paying member I don’t agree with VSEA’s broad statement that, “We are all John Howe”. I’ve called a union steward to understand my rights as a paying member. I was told that the union is a democratic system and they would hear my concerns and wanted to hear from me. He suggested I write a letter. I’ve since wrote a letter to the President of the union stating my position of not wanting to be put into a category that represents one person. I didn’t receive acknowledgement or comments regarding my concern. So this is how a democratic system works? Comments have been made by union members if people don’t attend union meetings their voice is useless…this doesn’t make me real safe about attending this type of new union. The union has not surveyed any state employees to see if they are in agreement with this campaign so they are making very broad statements that many not all apply to all of us. So we are not all John Howe. I wonder what the advantage point of professionally suing and personally suing managers has? I’ve been involved in the union in the past, presented to legislators and was never retaliated against. I was also told I would not be sued or retaliated against if I spoke out…hopefully that is true! Is retaliation really happening here…what the other side of the story?

  3. Barry Kade :

    Interesting that Commissioner Duffy first says “she could not speak in detail about the ongoing investigation.” But she then goes on to say that by naming the defendants in their individual capacity, Howe is attempting intimidation since the defendants own assets are at stake. Not true. The State has sovereign immunity. To get a money judgment, one must often prove that named individual state employees did a bad act outside of the scope of their employment. Under Vermont law, the state is liable in any event.

  4. Barry Kade :

    I forgot to mention that under the Open Meeting Law an employee has the right to demand that charges against him or her be aired at a public meeting.
    1 V.S.A. Section 313(a)(4) permits executive sessions for:
    (4) A disciplinary or dismissal action against a public officer or employee; but nothing in this
    subsection shall be construed to impair the right of such officer or employee to a public hearing if formal charges are brought;

  5. James Marc Leas :

    Human Resources Commissioner Kate Duffy’s concern that all the defendants in John Howe’s lawsuit are being charged not just in their official capacity, but also as individuals, appears to be off target.

    If the action by high state officials against John Howe was indeed illegal retaliation, as John Howe’s lawsuit contends, then the officials responsible for the retaliation were not–and could not–have been acting on behalf of the state. Of course, if the state encourages, tolerates, or fails to prevent violation of its laws the state may also be liable.

    Surely high state officials understand that when they take action that violates state law they, first of all, put themselves at risk. Just like anyone else, state and municipal officials can be sent to jail if they violate a criminal statute. Just like anyone else, state and municipal officials have their personal assets at risk if they harm someone in violation of the law.

    The Vermont Constitution provides, “That all power being originally inherent in and consequently derived from the people, therefore, all officers of government, whether legislative or executive, are their trustees and servants; and at all times, in a legal way, accountable to them.”

    Accountability to the people is not achieved by hiding information from the people that can be provided by state employees, such as by retaliating against a whistleblower, like John Howe, who testified before a legislative committee. The state whistleblower protection act is consistent with this fundamental constitutional purpose. Intimidating state employees into silence is incompatible with the constitutional provision. High state officials have a responsibility to protect–not punish–whistleblowers.

    The Vermont Constitution also provides that the people have the right to “to apply to the Legislature for redress of grievances, by address, petition or remonstrance.” All the people have this right. Without exception. Including state employees, like John Howe.

    The whistleblower protection act is essential to our democracy. Action to intimidate, suppress, or punish state employees who speak out is contrary to the text and spirit of the Vermont Constitution.

    Surely high state officials know that retaliation for speaking to a legislative committee is not just illegal. Surely they know it is wrong. It is contrary to our entire system of democratic government that these officials swore to uphold.

  6. Curtis Sinclair :

    Dave Bellini :”One of the dirty little secrets of state government is that many ex-employees were suspended with pay for many, many months. Put out of work but receiving full pay while being “investigated.” Occasionally, the employee really didn’t do anything wrong but the state just won’t admit they made a mistake.”

    It’s not really a secret for anyone who reads the news. There have been other stories about people who went on paid leave pending a bogus investigation. It looks like things have not changed under the Schumlin administration.

    • J. Scott Cameron :

      To add just one point: whether a complaint turns out to be valid or not, if someone is placed on paid administrative leave while the investigation moves forward that investigation should be completed in a timely manner. This is important not only for the employee who is charged, but for the integrity of the investigation and the good of the tax payers. I have represented several employees placed on administrative leave with little or no information provided about what they are accused of, and then they languish for months in limbo, albeit receiving full pay and benefits. In may cases the investigation could and should have been concluded in a few days.

      I would like to see the State Auditor of Accounts do a thorough review of the Department of Human Resources, the investigations it has launched in the last three years, and the amount of money spent to keep employees on paid admin leave while investigations continue ad infinitum.

      If you have a bad employee get the investigation done promptly, make a decision re: appropriate discipline or corrective action and move forward. If the employee is cleared get him/her back to work as soon as possible.

      • Fred Woogmaster :

        Mr. Hoffer, are you there?

  7. Greg Johnson :

    Agreed. The State Auditor needs to take a VERY close look at the VT Department of Human Resources and their use of employee investigations as a means of silencing whistleblowers and union leaders. It sounds like what is happening is wrong.

  8. sheila manchester coniff :

    State employees often are subject matter experts when it comes to the programs they work in every day. When the legislature needs to know what works and what doesn’t for a program serving the people of Vermont, using the resources of those same citizens, who better to ask than those Vermonters who, in many cases, spent years working to serve their fellow citizens. However, as long as the message continues to be, speak up and get squashed, the legislature, and through them, the people of Vermont, will only hear the message the administration wants them to hear. That is a tragedy and a travesty. I truly hope Vermont’s Department of Human Resources returns to acting as a resource to humans rather than an organization dedicated to intimidation and retaliation under the guise of “investigation”. I agree, I would love to see Auditor Hoffer review all investigations and their outcomes. I think the people of Vermont have a right to know what their tax dollars are paying for.

    • Jeff Seguin :

      I agree Sheila, the taxpayers of VT have the right to know. I also would like to know how much MY union spent on this “campaign” (their words). I tried to ask on the Facebook page they stood up over this matter but was so verbally accosted I took my remarks down.
      One high ranking union rep commented “unless you get involved your opinion is useless”. Quite a statement from an organization that claims to be “democratic”. I thought voicing my opinion on a public web page was getting involved, albeit in a small way.
      I thought democracy meant being able to state your opinion, not simply taking the union byline of “my way or the highway”.

      • Jacob Hall :

        I was quietly reading the comments you mentioned above and your description is not entirely accurate. To me it looked like you took your remarks down because people called you out for not being active in the union.

        A democracy works by people electing a group to represent them. You have a right to voice your opinion on a public page, but that is not the same getting involved and it does not necessarily guarantee your opinion will out weigh the board of trustees decisions. Voicing your opinion on a public page is essentially the same as going to the streets and yelling at people as they pass you by- not very effective now is it?

        To me it sounds like you and Cindy have a personal vendetta with the union or Mr. Howe. Or it looks as if you two have something to lose with these allegations becoming more and more public. Or maybe you have something to gain? It’s hard to tell, all I know is, trolling the union online is not an effective way to make a change.

        • Jeff Seguin :

          There is no vendetta on my part or personal gain what so ever, only my democratic choice to voice my opinion in regard to what I do not agree with my union over. I realize my opinion will not likely out-weigh the board of trustees decision, but it is my opinion, regardless of where I choose to voice it.

          If by your term “Voicing your opinion on a public page is essentially the same as going to the streets and yelling at people as they pass you by- not very effective now is it?” seems my union, by putting up a public web page is doing the same thing?

          I personally am offended at your allegation that I am “trolling” the union. The comments on the Justice Facebook page that indicate state officials are “abusive, mean-spirited cowards” sound more like “trolling” to me.

          I will vote my voice in the next union elections.

  9. Jeff Seguin :

    Perhaps there should be a review of how investigations are performed on the part of HR. However, the contention that employees are left languishing on paid leave by HR is just that, a contention. Does the VSEA not also contribute to this paid leave concern as they are working with HR to resolve these matters, thereby adding to the length of the leave?
    Perhaps MY union, of which I am a paying member, needs to review it’s methods of counter-investigations performed on managers with the State of Vermont. Maybe the auditor’s office could perform that review as well?

  10. Curtis Sinclair :

    The VSEA refused to help me when I was put on paid administrative leave pending an “investigation”. They would not represent me in my appeal to get the suspension taken off my record. I won the appeal and had my record cleared with the help of my lawyer. I am no longer a member of the VSEA. But I still have to pay their freeloader fee.

  11. Paul Lorenzini :

    Welcome to a government controlled by a super-majority! Speak out and be stomped on.

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