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Thursday, October 29, 2020  Spokane, Washington  Est. May 19, 1883
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Lawsuit says Idaho agency fired whistleblower, used its subpoena power to go after his personal cell phone records

James Cryer (Betsy Z. Russell)
James Cryer (Betsy Z. Russell)

BOISE – The Idaho Department of Labor used subpoena powers granted for specific purposes to instead obtain a whistleblower employee’s personal cellphone records, then fired the employee over the results of that search.

The longtime employee had raised concerns about violations in one of the labor department divisions, a whistleblower lawsuit alleges. The employee, James Cryer, was fired for sending anonymous emails to state officials complaining about the abuses.

According to the lawsuit filed Wednesday in federal court, the department used its subpoena powers to identify Cryer as the sender of the anonymous emails. Idaho’s state Employment Security Law grants subpoena powers to the labor department’s director, a member of the state Industrial Commission, and an appeals examiner “to compel the attendance of witnesses and the production of evidence” deemed necessary in investigating unemployment and wage-dispute cases.

“The only way I can describe it is pretty outrageous,” said Erika Birch, Cryer’s attorney. “We represent whistleblowers, so we’re used to seeing retaliation against folks who speak out or refuse to do things that are illegal, but it’s rare that we see a government agency abuse its powers like that to go after someone.”

Ken Edmunds, director of the Department of Labor, had no comment on the lawsuit Wednesday; neither did the Idaho Attorney General’s office. The two subpoenas were stamped with Edmunds’ signature and directed that documents sent to the department in response go to a then-employee in the information technology division, Rachel Zahn.

Cryer, who had worked for the state for 28 years and the labor department for the past 23, was placed on administrative leave pending an investigation last May. In June he was called in to the Idaho Attorney General’s office and confronted with the anonymous emails he’d sent. He readily admitted he’d sent them and explained why; two weeks later, he was fired for “conduct unbecoming a state employee or conduct detrimental to good order and discipline in the department,” according to the lawsuit.

Cryer claimed a labor department employee in the IT division, Michael Kalm, had repeatedly attempted to violate purchasing laws, such as buying pricey items that should have gone to bid. Cryer also alleged Kalm had made questionable hires, including Zahn, who was Kalm’s girlfriend, as well as a close friend and the friend’s daughter.

“There was kind of a culture there of, ‘Well, that’s Mike,’ I guess,” Cryer said Wednesday.

Cryer, as the department’s purchasing agent, was called into a series of meetings with managers and pressured to back off his insistence on complying with purchasing laws.

He said his certified public manager training made it clear to him that he’d be acting illegally if he approved purchases that didn’t follow the law. “You are responsible for your actions, not your agency,” he said. “I felt like I was alone out there, a lone voice.”

“It was clear from these successive meetings,” the lawsuit says, “that upper management at IDOL was not interested in supporting Mr. Cryer’s unwillingness to bend the state’s purchasing laws and rules.”

Among his concerns: Repeated requests from Kalm, the department’s chief technology officer, to purchase a $110,000 uninterrupted power supply from a specific company; Cryer said that purchase would require a competitive bid process.

Kalm eventually persuaded a then-Department of Administration employee, Zahn, to add the item to an existing state contract with Dell, so it could be purchased without bids, the lawsuit says. Then, he hired Zahn to work for him at the department; Cryer said it was widely known in the office that she was Kalm’s girlfriend.

When all his alarms were ignored, in frustration, Cryer sent seven anonymous emails from his cellphone outside of work, in December 2015 and in April, restating his concerns to officials at the department, the state Division of Purchasing and the state Division of Human Resources. Cryer used an app called “Guerrilla Mail” to disguise the source of the emails.

“Instead of investigating the validity of the anonymous complaints or taking measures to address the allegations of illegal activity, IDOL chose to target the messenger,” the lawsuit says.

On April 28, the department created what Birch called “a fake case,” complete with a case number, entitled “In the matter of the security of the unemployment trust fund,” and issued two subpoenas to Verizon Wireless to determine the source of the anonymous emails. The response to the subpoenas pointed to Cryer’s personal cellphone.

One of the anonymous email messages, directed to former Labor Deputy Director Jay Engstrom in April, told Engstrom he’d had a chance to fix the problems and hadn’t, and that the emailer would go elsewhere, and “the campaign to fix this has begun.”

“IDOL asserted that it interpreted one of Mr. Cryer’s April 26 emails as a threat to Engstrom and the IDOL IT bureau,” the lawsuit says.

“I certainly never intended to threaten anybody – that was never my intent,” Cryer said. He said he decided to send the anonymous emails to shift the focus “to the message instead of the messenger.”

“This was his way of trying to get somebody out there to pay attention to what was happening,” Birch said.

The day after Cryer was fired, a second employee who had raised similar concerns also was placed on administrative leave pending an investigation. That employee immediately hired a lawyer from Birch’s firm and was able to resolve the matter without litigation. Two days before the settlement was reached with that second employee, the department informed Kalm that he would no longer supervise any employees, participate in hiring, or be involved in any purchasing decisions.

Cryer said he was “numb” when the department where he’d worked so long – and where he’d always had positive job reviews – took action against him.

When he was called in to meet with a deputy Idaho attorney general in June, “I expected her to say, ‘OK, this is some bad stuff,’ ” Cryer said. “I expected to be disciplined for my emails and for them to go back to Labor and say, ‘Straighten your stuff up, and put this guy back to work.’ ”

“Even at that point, I still had faith that the right things were going to happen,” he said.

Instead, the father of two was out of a job, just a few years short of full retirement. He’s now working part time at Cabela’s.

“I hope the Idaho Department of Labor does the right thing,” Cryer said. “I hope things change to where they do what they’re supposed to be doing, what they’re entrusted to do. And I expect to be made whole – I lost a lot in this.” The lawsuit is seeking unspecified damages.

He added, “I’ve fought my whole state career to have people do the right thing, and to do the right thing on behalf of them.”

The lawsuit charges that the department, Edmunds, Engstrom and Kalm violated Idaho’s whistleblower laws by firing Cryer; violated his First Amendment rights to free speech; and violated the Fourth Amendment’s ban on unreasonable searches and seizures when it subpoenaed his personal cellphone records.

Birch said it wouldn’t be constitutional “to give a government subpoena power that is limitless for just whenever the director feels like it’s necessary in the performance of their job. That’s why we have the Fourth Amendment that limits when a government can or can’t use subpoena power or do searches and seizures to get to your personal, private information.”

Birch said she’s never run across a similar instance. “It’s unusual to say the least that you would have a government employer abusing their subpoena powers in this way, to go after a whistleblower.”

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