D.C. Fire Department Whistleblower Case Opens Door for Previously Barred Claims

(Washington, D.C.) – 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 §12-309 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…the Court is of the view that the statutory notice provision, section 12-309, was repealed, that not only was it — was the amendment a repealer of the previous provision that made the statutory notice provision applicable to the Whistleblower’s Act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 passage above appears on page 35 in transcript of the hearing, Cusick v. District of Columbia, Civil No. 08-6915 (MPA).

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.

Government Accountability Project

The Government Accountability Project is the nation’s leading whistleblower protection organization. Through litigating whistleblower cases, publicizing concerns and developing legal reforms, GAP’s mission is to protect the public interest by promoting government and corporate accountability. Founded in 1977, GAP is a non-profit, non-partisan advocacy organization based in Washington, D.C.