Text: July 29, 2019Jim Nobles Office of the Legislative Auditor658 Cedar StreetSaint Paul, MN 55155 Dear Legislative Auditor Nobles: I am writing to express my concerns regarding the "State Government Employee Whistleblower Portal,'a website recently launched by Senate Majority Leader Paul Gazelka and the Minnesota SenateRepublican Caucus. I also seek your assistance in obtaining additional information about this websiteand establishing appropriate procedures to ensure it does not interfere with the execution of ourstatutory responsibilities to prevent and address fraud, waste, and abuse in state government. It is my sincere hope that you were consulted during the development of this website, but I fear thatdue to its partisan nature, you may have been excluded. The website solicits "stories of fraud, waste,and abuse" from Executive Branch employees. These stories are "confidentially" submitted "directly" toSen. Gazelka and his staff. The website provides no information about an internal controls process tosupport its claim that stories will be treated with confidentiality and privacy, particularly when storiesare "shared with legislative staff or other members of the legislature." In fact, the website explicitlystates that the stories will not be protected by the Minnesota Government Data Practices Act {MGDPA}.Alarmingly, submissions made through the website lack the MGDPA protections that exist foremployees who submit reports to the Executive Branch or your office, including the MGDPA's privateright of action to bring suit and recover damages and attorney fees should a data breach occur. The website states that the stories are being collected "for informational purposes only" and that, dueto volume, there is "no guarantee" of a response to every submission. The website also advertises thatsubmitted comments are "essential to finding a solution to government waste, fraud, and abuse." If thewebsite's sole purpose is information gathering, rather than resolution, employees may be surprised todiscover that their reports of wrongdoing will not be used to investigate and resolve the reportedactivity. For the information to actually result in improved government, employee safety, or lawenforcement action, information must be shared with the Executive Branch. We are currently unawareof any procedures that would enable Sen. Gazelka and his staff to be good stewards of the informationand ensure that it is passed along to the agencies, which are in the best position to remedy anyconcerns. As you are well aware, the Executive Branch has longstanding processes for employees to raiseconcerns of fraud, waste, or illegal or unethical behavior. We have established internal reportingprocedures under our Respectful Workplace, Sexual Harassment Prohibited, and Harassment andDiscrimination Prohibited policies. We have a strong statutory Code of Ethics for Executive Branchemployees (there is no statutory counterpart for the legislature). Reports can be made to any agency'sethics officer. Minnesota Management and Budget (MMB) has a state ethics officer, and reports ofunethical behavior also can be made to MMB. All individuals who report violations of law are protectedagainst retaliation by the State Whistleblower Act.Similarly, as you well know, the Office of the Legislative Auditor (OLA) has a long-established process toaccept all reports of possible misuse of public funds or resources. Your non-partisan office, which isestablished in law, is the most appropriate place for complaints if employees have concerns and areuncomfortable with reporting within their agency or to MMB. The OLA has an intake Allegation Formfor this exact purpose. Additionally, agencies are required to report violations to the OLA when there isprobable cause of a substantial ethics violation or information about misuse of public funds orresources. Unlike the OLA, which was created in statute and has established processes, reportingmechanisms, and legal responsibility for data security, this new website is unsupported by any legalframework, and there are no laws or rules governing data security or privacy for reports submitted tothe site.Given our long history of working effectively together to protect public resources and trust, I am certainthat you share many of the concerns I have raised here. It is incumbent upon us both to takeappropriate action now to reduce confusion, and to protect state employees, state information, andstate resources. Most importantly, it is critical to the effective and efficient operation of governmentthat information regarding potential wrongdoing, waste, or outright fraud is shared in a manner thatpermits the appropriate entities to take prompt corrective action.As the arm of the Legislative Branch responsible for auditing state agencies, evaluating publicprograms, and investigating alleged misuse of public money, I am turning to you to obtain furtherinformation to ensure we can minimize the risks created by this undeveloped and confusing website. Todetermine the appropriate next steps, I would appreciate your assistance in obtaining answers to thefollowing questions:Concerns about Consultation with OLA1. Did Sen. Gazelka, his staff, or representatives of the Senate Republican Caucus consult the OLAon the website or in the development of any internal controls or policies or processes to guidestaff who are soliciting and receiving submissions?2. Did Sen. Gazelka, his staff, or representatives of the Senate Republican Caucus inform you thatthey were dissatisfied or had concerns with the OLA's efforts to investigate the misuse of publicresources?3. Does the OLA share our concern that this new website encroaches on the OLA's statutoryjurisdiction? 4. Will the information shared through the new website be provided to the OLA for appropriateaction? If so, how will the OLA treat that data for purposes of the MGDPA? Concerns about Privacy and Process1. What will Sen. Gazelka, his staff, and representatives of the Senate Republican Caucus do withhighly sensitive personnel information? Do you know if there is a records retention schedule orcontrols in place to prevent the dissemination of sensitive personnel data?2. Are you concerned that naming this new website the "State government employeewhistleblower portal" could create the perception that this is an official reporting channelrather than a partisan information gathering website?3. Who will investigate allegations or remedy substantiated concerns? Are you aware of anymechanism developed by the Senate Republican Caucus to take appropriate action to respondto such complaints? Do you know if the Senate Republican Caucus is staffed to investigate thosecomplaints? Will the OLA conduct investigations on behalf of the Senate Republican Caucus?4. When our employees come to us with questions about what they can expect if they submitinformation to the website, we want to be able to provide them accurate information. Do youhave copies of the written policies and protocols governing the information shared through thenew website?5. Does the website's indication that submissions are for informational purposes and responsesare not guaranteed mean that employees should have no expectation of action on theirsubmissions?6. Are you aware of any efforts to penalize those who submit false reports through the portal?What tools are available to Sen. Gazelka, his staff, or representatives of the Senate RepublicanCaucus to prevent or limit the submission of false reports and what protections are available tothe subjects of false or inaccurate reports? Concerns about Potential Risks1. As you know, various state agencies routinely receive federal funds and have correspondingrequirements to report potential fraud or misuse of those funds within specified time periods.Failure to comply can result in loss of federal funding and other penalties. Have Sen. Gazelka, hisstaff, or representatives of the Senate Republican Caucus discussed with you how they willensure compliance with those federal reporting requirements?2. Are you aware of any safeguards in place to ensure that any employees accused of wrongdoing,policy violations, or behavior subject to discipline are afforded due process protectionsmandated by the United States Constitution and union contracts?3. Do you know how the Senate Republican Caucus plans to handle allegations of wrongdoing toprotect themselves from claims of defamation?4. The website states that information will NOT be disclosed without your express consent." Areyou concerned about the potential for Sen. Gazelka, his staff, or representatives of the SenateRepublican Caucus to become witnesses in lawsuits where a report to the new website may beimplicated? How can recipients of this information protect it from disclosure if they receive alawful subpoena seeking submitted information and submitter identity?5. In light of the recent decision of the Minnesota Court of Appeals limiting legislative immunity tosuit when actions are personal or political in nature, are you concerned that a partisan reportingtool could expose the state, members of the legislature, and their staff to legal liability?6. Are you concerned that the failure to act upon a submission to the new website will expose theSenate, and the even the state as a whole, to liability? Given your charge to protect government resources and investigate waste, fraud, and abuse, I assumeyou are already considering these very questions. The fact that the website is an initiative of the SenateRepublican Caucus - and not the Senate as a whole or the legislature as an institution - raises manyquestions about the purpose of this effort and may reflect a process that was not fully vetted. I lookforward to your responses and hope that, together, we can take steps to minimize risk to the state andits employees while protecting public resources. Thank you for attention to this matter. Sincerely,Myron FransCommissionerCc: Representative Rick Hansen, ChairLegislative Audit Commission[Letter is attached, along with screenshots of the whistleblower site as it appeared in July 2019.]