Today is the “cross-over” day in the Virginia General Assembly, which means that bills passed by either the House of Delegates or the Senate are transferred to the other House for action.
While there is much going on with the Virginia Fraud Against Taxpayers Act this legislative session, I want to dedicate today’s post to a particularly annoying bill that somehow slipped onto the uncontested docket in the House of Delegates and meandered its way into the Senate. I am talking about HB 1399.
HB 1399 is quite simply an attempt to abuse the VFATA and stick the taxpayer with an even higher bill. In a nutshell, HB 1399 would extend the protections of the anti-retaliation provisions of the VFATA to state government employees.
So HB1399 attempts to protect government employees just like private sector employees. However, there is a huge difference. Unlike private sector employees—who enjoy no protections other than VFATA—government employees are already protected by the First Amendment, which is made applicable to the states by way of the Fourteenth Amendment, which prohibits state actors from retaliating against employees for speech on matters of “public concern.”
So, without question, public employees are already protected for speaking out on matters of public concern, and these provisions would cover the same sorts of speech that HB 1399 would protect.
What HB 1399 really does is create unprecedented remedies for wrongful termination of a government employee—counties, cities, and the Commonwealth would all be liable for double damages, attorney’s fees, and any other relief necessary to make the person whole.
There is no other wrongful termination statute in Virginia even remotely approaching the powerful remedies available to private sector employees under VFATA, and we do not need one now. Ironically, it is the taxpayers themselves who will ultimately foot this bill—the very taxpayers that the VFATA is intended to protect.
Again, the anti-retaliation provisions of the VFATA are necessary and important to the statute as they pertain to private sector employees who wish to stop their employer from defrauding the Commonwealth. There is absolutely no reason to extend these same incredible remedies to government employees who already have a cause of action for the same exact activities covered by HB 1399.
Word from the HOD is that a misguided group of employment lawyers–actually, just one guy–are representing to the General Assembly that Congress really intended to extend wrongful termination protections in the Federal FCA to public-sector employees, but that is absolutely not the case.
Contrary to the views espoused to the General Assembly by those testifying in support of this bill, there is absolutely no evidence for this argument in the legislative history of the 1986 amendments to the FCA.
Moreover, the federal False Claims Act has been amended three times in the last two years, and again, there is no evidence in any of the legislative history that Congress ever contemplated adding a provision like HB 1399.
If Congress wanted to do that, they could have easily done it over the last two years when the federal False Claims Act was completely overhauled. So I wish they would stop using this silly argument.
I urge all my readers to contact their state Senators and urge them to vote HB 1399 down.
By they way, HB1399 looks certain to fail in the Senate, but you just never know. I will be there next week to testify against it, the hearings are set for Feb. 14, 2011.
Zachary Kitts