Prosecutor: No Criminal Charges Filed in N. D. Workers’ Comp Agency Firings

April 23, 2008

A prosecutor has decided not to seek criminal charges for the firings of two North Dakota workers compensation agency employees, saying he does not believe he could prove they were victims of illegal retaliation.

James Long, the former chief of support services for Workforce Safety and Insurance, and Todd Flanagan, a former WSI fraud investigator, have argued they were penalized for reporting alleged wrongdoing at the agency.

Flanagan was fired in December. Long was put on paid leave in November and was dismissed last month. Before he was fired, Long compiled a list of what he considered to be questionable actions by WSI management for prosecutors’ use.

Both men had sought protection from on-the-job retaliation under a state law that prohibits state employees from being sacked, demoted or disciplined for reporting possible violations of the law or misuse of public resources.

Peter Welte, the Grand Forks County state’s attorney, was assigned to review whether Workforce Safety officials violated the whistleblower protection law. He said he read a state Highway Patrol investigation of the matter and materials submitted by Richard Riha, the Burleigh County state’s attorney, and Long’s lawyer, Tom Tuntland, of Mandan.

In a letter to Mark Nelson, the Highway Patrol’s commander, Welte said the dismissals of Long and Flanagan could be attributed to reasons other than their complaints about WSI.

“It is clear that both Mr. Long and Mr. Flanagan suffered adverse employment action,” Welte wrote. “However, it is equally clear that there were plausible reasons, other than their (requests for whistleblower protection), that could have warranted such adverse employment action.”

Welte did not elaborate. Tuntland and Flanagan’s attorney, Michael Geiermann, said their clients intend to go to court.

“Let a jury hear all of the facts, let a jury hear all of the reasons, and then let a jury decide,” Geiermann said. “If they believe that WSI had reasons other than whistleblowing (for the firings), fine. Allow the system to work … If you’ve got a case that’s difficult, let a jury decide.”

Tuntland said Welte’s conclusion was “absolutely wrong” and said none of Long’s allegations of misconduct at Workforce Safety had been investigated. Attorney General Wayne Stenehjem asked Welte to limit the scope of his review, Tuntland said.

“The attorney general and the Republican administration have successfully buried any official inquiry into wrongdoing at WSI for more than half a year,” Tuntland said in an e-mail. “It is now obvious that there will be absolutely no investigation into the wrongdoing at WSI as long as the current administration remains in power.”

Stenehjem said Tuntland himself had asked for a probe of whether the state whistleblower protection law had been violated. He called Tuntland’s comments “a purely political statement.”

“If he would go back and reread his letter, he will see exactly what it is that he asked to be done,” Stenehjem said. “Let’s face it, I think Tom Tuntland needs to decide whether he’s going to be Jim Long’s attorney or his campaign manager.”

Long is a Democratic candidate this fall for the North Dakota Senate, running in District 14, a rural district in central North Dakota that includes most of rural Burleigh County. Stenehjem is a Republican.

The requests for an investigation into whether the whistleblower protection law was violated initially went to Riha, who forwarded them to Stenehjem after concluding he had a conflict of interest.

Stenehjem asked the Highway Patrol to investigate the case, and its findings were forwarded to Welte, who had agreed to Stenehjem’s request to review it.

“He was asked to use his independent judgment to determine whether the actions merited a criminal prosecution, and of course you see what his result was,” Stenehjem said.

Topics Fraud Workers' Compensation

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