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This blog focuses on real estate, land use and construction-related topics affecting Virginia and the Washington, D.C. metro area. With topics ranging from contract drafting and negotiation to local and regional land use project updates, the attorneys at Bean, Kinney & Korman provide timely insight and commentary on the issues affecting owners, builders, developers, contractors, subcontractors and other players in the industry. If you are interested in having us cover a specific topic, please let us know.

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Proposal to Extend Whistleblower Protection to County Employees

Although obviously based upon sound legal principles, it was still surprising to find out that the Supreme Court held in Ligon v. County of Goochland that whistleblower protections for county employees against retaliatory firings under the Virginia Fraud Against Taxpayers Act ("VFATA") were barred by the doctrine of sovereign immunity.  As many of our readers know, the doctrine of sovereign immunity gives immunity to the Commonwealth, as well as localities as political subdivisions of the Commonwealth, from liability for damages and from suits to restrain governmental action or to compel such actions (such as tort liability for actions or omissions of a county's agents and employees).  However, while the VFATA was likely intended to create protection for the Commonwealth's employees from retaliatory discharge for reporting corruption and fraudulent behavior, the Supreme Court found that the plain language of the statute failed to explicitly include retaliatory discharge necessary for it to waive its sovereign immunity.  So basically, a corrupt county employee can fire a whistleblower, and the whistleblower can't sue the county to get his job back or for damages.

Message to county employees:  If your boss is on the lam, keep your mouth shut. 

Not exactly the message the Commonwealth ought to be sending to county employees, is it?  Well the good news is that Delegate Bill Janis (R-56th District (including the counties of Louisa, Goochland, and the northwestern corner of Henrico)) has prefiled legislation (see HB 1399) in response to this decision for this winter's upcoming legislative session.  The proposal modifies VFATA to create a cause of action for an employee of the Commonwealth, its agencies, or any political subdivision against such entity if an adverse employment action is taken against the employee by his employer because the employee has opposed any practice by his employer prohibited by the VFATA or participated in an investigation, action, or hearing under the VFATA. 

New message to county employees:  Keep your mouth shut until July 1, 2011.