The stand-out allegation in the latest state whistleblower lawsuit, filed Wednesday against the Idaho Department of Labor, is that agency personnel might have misused official subpoena power to “out” an anonymous tipster reporting wrongdoing from within.
If true as alleged — and the plaintiff has copies of dummy subpoenas to back his claim — the behavior does an end-around on the state’s whistleblower protections and would give pause to anyone wanting to report wrongdoing anonymously, much less through official channels.
According to the complaint, Labor Department employees, in receipt of anonymous emails alleging purchasing procedure violations, chose not to investigate those allegations, which the plaintiff previously had flagged to higher-ups in his capacity as the department’s purchasing agent.
Instead, they went looking for the messenger, using not one but two dummied-up subpoenas to obtain cell phone records from the service provider where the emails originated, according to the former Labor Department employee and his lawyer.
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This is about everything we hope Idaho government never becomes, and that’s abuse of private citizens’ rights.
David Leroy, defense attorney, former prosecutor and attorney general
That potential misuse of authority is largely why James Cryer’s lawsuit is in federal court, alleging not only retaliatory conduct barred under state whistleblower law, but also constitutional rights violations regarding free speech and unreasonable search. Beyond the specifics of the case, Cryer’s lawyer, Erika Birch, hopes it sends a message to all state employees, both those who would seek to expose wrongdoing and those who would retaliate against them for trying.
“The reason we have these laws in place is so that (employees) can feel secure in their jobs and still bring these concerns forward and have them dealt with,” she said Friday. What happened to her client could make other state employees “extremely fearful to pipe up about anything.”
“And now they’re not going to even feel comfortable trying to get resolution anonymously,” she added. “This is going to silence all of this stuff.”
Cryer was department purchasing agent until he was fired in June, a month after being placed on administrative leave. His claim says his firing came in retaliation for his efforts to get employees to comply with purchasing rules down to the letter — no skirting of competitive bid requirements, no unauthorized third-party use of state purchasing cards.
With a lawsuit now filed, both Labor Department and the Attorney General’s office declined comment on anything related to the case or the issues it raises. With no one talking, what’s been hard to ascertain is whether the alleged activity rises to the level of a crime. A section of state code strongly suggests that it could, as does a former state attorney general who reviewed Cryer’s complaint for the Statesman.
WHAT IS KNOWN: SUBPOENA POWER
Labor is one of many state agencies with subpoena power, which it exercises when investigating unemployment claims. The Attorney General’s Office can issue subpoenas, as can the Legislature. A quick search through state code turns up subpoena authority held by the departments of Finance, Health & Welfare, the Lottery, Fish & Game, even the Potato Commission.
According to Cryer’s complaint and his attorney, when Cryer’s concerns about purchasing practices failed to gain traction within the department, he turned to an outside anonymous email service, Guerrilla Mail, to send his worries to labor and human resources officials. But the service isn’t anonymous: It provides temporary, aliased email addresses that someone might use to make an internet purchase and avoid follow-up marketing spam, or conduct some other onetime online transaction.
Emails sent the routine way, without extra encryption or similar safeguards, contain identifying information that includes their originating internet addresses. If the address is known, it’s short work to look up who owns it. Looking at the “anonymous” emails and where they originated can quickly lead to the provider, in this case Verizon Wireless.
The first department subpoena, issued in late April and bearing the stamped signature of Department Director Ken Edmunds, instructed Verizon to supply information on the phone numbers associated with the emails. The information was to be sent to a woman identified in the complaint as the girlfriend of Michael Kalm, the department’s chief IT security officer, who is named as a defendant along with Edmunds and former Department COO Jay Engstrom. The woman reported to Kalm, Cryer’s complaint says.
The second subpoena, issued about 10 days later and based on the findings of the first, asked specifically for Cryer’s cell phone records. Cryer was placed on leave the same day in early May. A month later, a deputy attorney general met with him and showed him the emails. Cryer owned up to sending them, saying he did so when the official route to report the purchasing issues hit a dead end. He was fired June 23 for “conduct unbecoming” and for being disruptive.
HOW SUBPOENAS CAME TO LIGHT
Cryer didn’t know about the subpoenas until months after he left the department. He retained Birch to handle the personnel appeal of his dismissal. The initial subpoena was among documents the state turned over to Cryer and his lawyer in October. Birch was floored when she saw it.
“We represent whistleblowers who come to us because they’ve been retaliated against,” she said Friday. “Abusing your government power to issue a subpoena to go after a whistleblower is above anything I’ve ever seen.”
David Leroy hasn’t seen anything like it either. The well known Boise criminal defense attorney, former state Attorney General and Ada County prosecutor reviewed Cryer’s complaint and cited the section of state code that could apply to the actions it outlines.
As described and alleged in the complaint, there are potentially three separate criminal acts around the subpoena: creation of a fictitious case name and ID for it; adding the director’s signature authorizing it; and issuing it to Verizon under false pretenses.
State code includes a section dealing with falsifying public records and makes it a felony punishable by up to 14 years in prison.
“If I was a prosecuting attorney in this county, I would feel comfortable that this statute would be applicable to the alleged acts,” Leroy said. The complaint, he added, is “about everything we hope Idaho government never becomes, and that’s abuse of private citizens’ rights.”