Thursday, May 23, 2013

Blessed Be the Whistleblowers; Governor Pence Continues to Advocate for Federal Media Shield Law

If I had a chance to share one piece of advice with Governor Mike Pence, it would be that in performing his job that he listens to and protects whistleblowers in state government.  They are his administration's eyes and ears in the far flung state bureaucracy.   They are not enemies; they are his greatest allies.  If a Governor is willing to have an open administration in which whistleblowers are free to come forward about wrongdoing they see, with the assurance their jobs will be protected, and the administration will investigate and act upon the information obtained, it is almost certain that the Governor's tenure will be scandal free.
Governor Mike Pence

Unfortunately whistleblowers in the Daniels' administration were treated as traitors to the cause.  Not only were they not listened to, they were fired or forced to resign by agency chiefs.  Inevitably a scandal would break out at the agency, such as the Department of Workforce Development, the Department of Transportation, or the Lottery Commission, concerning the very thing the whistleblower attempted to warn the Governor's Office about.  Fortunately for Governor Daniels' the blame for misdeeds in those state agencies never seemed to be blamed on his administration's failure to supervise or act on whistleblowing information.  Governor Pence can't count on being so fortunate.  He has far too many enemies on the left who will try to pin anything that goes wrong in state government on him.

Tuesday, we saw an example of what happens when whistleblowing is not heeded.  The problems with what was going on at the Indianapolis Land Bank were known by the Ballard administration.  Numerous complaints had been lodged.   Six months ago the Indianapolis Business Journal did a lengthy expose of the Land Bank's  practices involving selling the properties to a non-profit for a $1,000 to $2,000 only to be immediately flipped to a for-profit buyer for a handsome profit.  At the very best, taxpayers were being deprived of a fair return on property held by the public.  At the very worst, criminal activity was involved.  Either should have sparked an immediate investigation by the Mayor's Office and action to cease the activity.  Not only was such an investigation never conducted by the Mayor's Office, the Land Bank manager Reggie Walton apparently felt so certain he would not get in trouble Ballard administration officials weren't he, allegedly, took a $500 bribe after the IBJ story broke.

With different leadership, an investigation would have been ordered after the first credible allegation of problems at the Indianapolis Land Bank.   Whistleblowers would have been encouraged to come forward and their jobs protected.  Employees engaged in wrongdoing would be fired and/or turned over for prosecution.  Instead we now have a Mayor tainted by a scandal that could have been easily avoided.

Governor Pence should review Indiana's whistleblowing law for state employees and see if it shouldn't be made stronger.  He should also review how the law has been applied.  I have yet to see a state whistleblower, who has been fired or forced to resign, succeed in state or federal court.  When it comes to the termination of whistleblowers, judges are loathe to enforce constitutional free speech protections or the state whistleblowing law that is supposed to protect the rights of state employees to speak out about what they see.

When government employee whistleblowers find that their supervisors won't listen to them or they are fearful of losing their job if they come forward, they often turn to the media.  It is essential that reporters, including citizen reporters, i.e. bloggers, be able to assure the confidentiality of their sources.  Recently the Justice Department, without a court order, seized the records for more than 20 separate telephone lines assigned to AP and its journalists in April and May of 2012.  While the action, an attempt to justify a leaker, was justified on national security grounds, it also had the possible effect of outing numerous other confidential sources. The effect of warrantless searches on news media organizations could have a devastating effect on the ability of those organizations to protect sources and gather information.

Fortunately, Governor Pence understands the importance of reporters being able to protect sources.  As a member of the U.S. House, Pence sponsored the federal media shield law designed to help the reporters protect sources.  While the First Amendment and case law provides some protections, Pence's bill would have increased those protections.  While the bill passed the House in 2007 and 2009, it failed to clear the Senate.

Jim Shella of WISH-TV reports that, although Pence is removed from the congressional battles over the shield law, he still strongly supports it:
When Congressman Pence fought for the law on Capitol Hill he faced opposition from both the Bush Administration and the Obama Administration.  “The bill is not about protecting journalists,” he argued on the House floor in 2009. “It’s about protecting the public’s right to know.”

Now, as then, Pence argues that a free press is the only check on government power.  “I think the ability of the press to protect confidential sources,” he said, “is essential to the news gathering process.”
Exactly.  In the meantime, Gov. Pence's people should take a look at Indiana's media shield law, which only protects the traditional media.  The law (IC 34-4-6 et seq.) was written in 1998, before the new media, which plays out over the Internet, began to supplant the traditional media as a news source for many people.  It clearly does not apply to citizen journalists who publish material on their blogs every day, unless those bloggers are receiving an income for their work.

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