Judge Rules D.C. Whistleblower Law Retroactively Applies to Cases

A decision by a Superior Court
Judge last week, involving the case of a whistleblower from the Washington, D.C.
Fire & Emergency Medical Services (FEMS) department, may help open the door
for a slew of whistleblower cases from current/former District employees to be
brought against the city.

Theresa Cusick served as FEMS General Counsel until
2007, when she informed an Assistant U.S. Attorney that a FEMS officer had a
conflict of interest in working with the Office of the U.S. Attorney (USA).
Cusick also blew the whistle to the D.C. Office of Inspector General (DC-OIG)
that Assistant D.C. Fire Chief Brain Lee illegally prohibited her from
communicating with either DC-OIG or USA regarding the officer under
investigation. (A full
background of Cusick's case appears below)

Cusick brought suit in September 2008 under the
District's Whistleblower Protection Act (DCWPA), seeking reinstatement to
her former position and damages. Recently, attorneys for the District sought
dismissal of the case claiming, in part, that Cusick violated D.C. Code SS12-309
by failing to timely notify the District of her whistleblower claim within six
months after the circumstances giving rise to her lawsuit.

However, recent amendments to the DCWPA,
effective March 2010, abolished this notice requirement after city lawmakers
recognized that the short time period for notification was a significant
impediment to whistleblowers. Last week, Senior Superior Court Judge Leonard
Braman held that the repeal of the notice requirement in the WPA should be applied retroactively.

"This is a great victory for D.C. employees who
have suffered retaliation for whistleblowing," stated GAP Senior Counsel
Richard Condit, a lawyer for Cusick. "This means that District employees
and their lawyers - who may have previously believed that the notice
requirement barred a claim under the DCWPA - should absolutely reconsider
whether the claim can be brought."

The Court summarized its analysis of the issue as
follows:

...the
Court is of the view that the statutory notice provision, section 12-309, was
repealed, that not only was it -- was the amendment a repealer of the previous
provision that made the statutory notice provision applicable to the
Whistleblower's Act but that the law of the District as declared in the
Montgomery case and cases cited in the Montgomery case [590 A.2d at 162], based
upon the legislative history of the amendment to the Whistleblower's Act as
stated in the committee report, based upon the Uniform Law Commissioner's Model
Statutory Construction Act, all of these authorities constrain the Court to apply the amendment
notwithstanding that this case was pending before the amendment. [emphasis added]

The transcript of the hearing, Cusick v. District of Columbia, Civil No.
08-6915 (MPA) can be
viewed here (the passage above appears on page 35).

Under Chief Dennis Rubin, FEMS has exhibited a pattern
of retaliation against fire department personnel. Retaliatory actions under the
Rubin administration include ordering a fire department captain to undergo a
psychological evaluation after she raised concerns regarding the management
practices of certain Fire and EMS high-ranking officials, the involuntary
reassignment of fire investigators who blew the whistle on Fire/EMS failures in
investigating the 2007 fire in Eastern Market, and the termination of a
firefighter following his testimony at a D.C. City Council hearing.

Background on Theresa Cusick

Theresa Cusick is a former senior attorney of the
District of Columbia Office of the Attorney General (OAG) who served as the
General Counsel of FEMS from June 1998 to June 2007. While serving as General
Counsel, Cusick blew the whistle to an Assistant U.S. Attorney (AUSA) that a
FEMS officer in the Fire Prevention Division was being investigated by the
DC-OIG for his alleged involved in a cheating scandal in the FEMS Training
Academy. She advised the
AUSA that this EMS officer should not be
involved in an unrelated criminal investigation involving a fire inspector in
the Fire Prevention Division. Her concern was that FEMS, or the Office of the
U.S. Attorney for the District of
Columbia, should not rely on the officer under
investigation until he was cleared of any involvement in the scandal.

Cusick also blew the whistle to the DC-OIG, the D.C.
OAG and to D.C. Fire Chief Dennis Rubin that she was given an illegal order by
Assistant Fire Chief Brain Lee, prohibiting her from communicating with DC-OIG
and the AUSA regarding the officer under investigation. Subsequent to her
whistleblowing and upon request by Chief Rubin, the OAG removed Ms. Cusick from
her position as FEMS General Counsel. The controversy surrounding Chief
Rubin's request for Cusick's removal is revealed, in part, in sworn
deposition testimony given by Chief Rubin. A GAP
produced video of a portion of this deposition was released
earlier this year.

After her removal from FEMS, Cusick was given a
temporary position within the OAG with the promise from the Chief Deputy
Attorney General, Eugene Adams, that he would assist her in securing permanent
employment within the OAG. However, Cusick was never offered a permanent
position, ultimately ending her career as a senior attorney with OAG.