Two former top aides to ousted treasurer David Petersen have filed a whistleblower and wrongful termination lawsuit claiming they suffered reprisals for cooperating with an Attorney General’s Office investigation that led to their boss’ removal from office.
The suit filed in Maricopa County Superior Court alleges Petersen and interim treasurer J. Elliot Hibbs “undertook a series of increasingly strong reprisals” against then-Chief of Staff Tony Malaj and Deputy Treasurer Blaine Vance for their role in an inquiry of Petersen’s promotion of a character-training program.
A search warrant of the office was executed in February 2006. Agents with the Attorney General’s Office seized computers and Petersen later agreed to vacate his office and plead guilty to a single misdemeanor charge of failing to disclose a $4,200 commission for selling Character First! materials.
Malaj and Vance were wrongfully terminated, according to the lawsuit, which also alleges the state “deliberately engaged in a very public effort” to lower their professional reputations and deter other employers from associating or dealing with the pair.
The complaint, filed May 29, asks that a jury award damages but does not seek a specific amount. In December, the Department of Administration failed to timely respond to claims totaling $6 million that were filed on behalf of Malaj and Vance by attorney Jeffrey Arbetman.
The failure to take action on the claims legally paved the way for the lawsuit, and the $6 million was offered as a proposed settlement. Now Arbetman said he will not discuss how much money he will seek for his clients, but added his work is hampered because he has not received e-mails and documents from public records requests he’s filed with the office of current Treasurer Dean Martin.
Fulfilling the records request, Martin said, is an enormously difficult task. The requested e-mails from Petersen and his assistants Don Dybus and Rhoda Bryce dating back to 2003 are being fished from a pool 185,000 messages that have been archived on 60 tapes.
More than 5,000 of the e-mails have been read, and the office is making redactions when necessary to remove sensitive banking information. And providing similar information to Sheriff Joe Arpaio and Maricopa County Attorney Andrew Thomas to assist with their investigation of Petersen’s dealings with Attorney General Terry Goddard has taken precedence over Arbetman’s request, Martin said.
Martin: Office is cooperating
There is absolutely no effort to avoid compliance with the request, Martin said, a three-time winner of the Arizona Newspapers Association Freedom of Information Award.
“I’m obviously aware of the public records laws, as I wrote most of them,” he said.
Arbetman also said he is not aware of any inquiry into Malaj’s and Vance’s whistleblower and wrongful termination claims presented to the Risk Management Division of the Department of Administration, which, he said, notified him in October it would conduct.
“The purpose of the claim is so they can investigate the claim,” Arbetman said.
An investigation into the claims is being handled by outside counsel, said Ray DiCiccio of Risk Management because “the Attorney General has recused himself” from the case.
And so far, it is too early to tell if a settlement offer is being considered. No response to the Malaj and Vance lawsuit has been filed, he said.
Tom Rogers, a labor law attorney contacted in May by the Arizona Capitol Times for an unrelated interview, said claims of wrongful termination and unlawful reprisals against whistleblowers typically end up in a “black hole” within the Department of Administration and never see the light of day.
And stringent reporting requirements for such claims often preclude government employees from qualifying for legal protections under whistleblower law, Rogers said.
That scenario might be unlikely for Malaj and Vance because their attorney, Arbetman, helped write Arizona’s whistleblower statutes.
The suit also asks that a jury consider the pair’s loss of earnings, benefits, embarrassment, stress and other “mental injuries.”