Word cloud for Whistleblower

In the race for Franklin County prosecutor between longtime Republican incumbent Ron O’Brien and his Democratic challenger, former 10th District Court of Appeals judge Gary Tyack, some progressives are supporting Tyack because of O’Brien’s unimpressive record on police misconduct cases. It’s true Tyack could hardly do worse in that regard.

But based on Tyack’s handling of my 2013 whistleblower case against the state government, I doubt he’s committed to protecting victims of governmental injustice and holding the perpetrators accountable. If Tyack is elected, progressives should watch and pressure him to ensure he doesn’t act like a lapdog and cover-up artist for the Columbus establishment.

The whistleblower case resulted from my employer, the Ohio Bureau of Workers’ Compensation, imposing discipline on me for reporting unlawful, but noncriminal, acts in state government to the Ohio inspector general’s office. During oral argument at the appeals court, Tyack expressed no concern about what the agency did.

He instead immediately focused on the fact that I was no longer employed by the state. His clear interest was in using this circumstance to find the case moot, thus avoiding the merits and letting the state get away with its acts. He appeared to drop that approach after I noted the discipline remained a public record with the state government and could adversely affect my reputation.

Tyack still couldn’t bring himself to criticize anything the state did. But he was willing to disparage me by indicating I was unwise for not having the inspector general’s office keep my identity confidential. I responded that although I had requested confidentiality in complaints against my agency in the past, I thought there was no need this time because the complaint wasn’t against my employer but a separate entity in state government. 

In their written decision upholding the state’s discipline, Tyack and the other two judges (John Connor and Julia Dorrian) interpreted the whistleblower statute as not protecting state employees who report noncriminal legal violations to the inspector general. This interpretation had never been raised or argued at any level in the case. The state government had agreed the statute protected me. And when the case had been before two separate common pleas court judges, neither one found I was unprotected by the law.

At a subsequent luncheon where three judges from Ohio’s 5th District Court of Appeals, based in Canton, were at my table, they all said if the court was inclined to base its decision on a legal position not addressed at the oral argument, the case should have been reset to allow the parties to argue the issue. Tyack obviously didn’t think a whistleblower should be accorded that right. 

Moreover, Tyack and the other two judges’ interpretation of the whistleblower statute was inconsistent with how the 10th District Court of Appeals had interpreted the same law in previous cases. The judges made no mention of those cases. Their decision also hid the fact that the state government had agreed with my interpretation of the law, thus making me appear as the only party who had taken a contrary position.

Although the judges wouldn’t acknowledge the case law in my favor, their decision included an irrelevant attack on the merits of my complaint to the inspector general. That discussion was wrong for at least two reasons. First, a complaint doesn’t have to be valid for a whistleblower to be protected from discipline for filing it. Second, the court ignored legal and factual considerations supporting the complaint’s validity.

Finally, the court showed no reluctance about turning down the appeal and letting the state punish a whistleblower. Its decision didn’t urge the General Assembly to change the law to protect government workers who report noncriminal legal violations. And Tyack and the other two judges expressed no worry about the resulting harms to the public if whistleblowers can be punished. 

Those judges didn’t care about any of that, but many persons did. For example, the 33,000-member Ohio Civil Service Employees Association and the good-government group Common Cause Ohio denounced the court’s decision. The legal director of the national Government Accountability Project, which works to protect whistleblowers, protested in a published letter to The Columbus Dispatch that the decision “wrecks” Ohio’s already-weak whistleblower law and makes it the worst in the nation. The Dispatch editorialized that the General Assembly should change the law to remedy what the court did and prevent ensuing future harms.  

Before I filed the court case, a longtime employment law attorney in Columbus told me: “Courts in Ohio hate whistleblowers.” Tyack’s behavior in my case provided more support for the attorney’s view.

Progressives need to make sure Tyack shows more concern about victims of police abuse and other governmental wrongdoing than he showed for the plight of whistleblowers.

Joe Sommer is a Columbus activist and attorney who is retired from Ohio’s state government.