The Kansas Department for Children and Families has responded to a “whistleblower” lawsuit filed by a former child protection worker who accused the agency of firing her after she called her supervisor’s attention to false reports filed by a social worker.
In its response, filed this week in Cowley County District Court, DCF said that because the child protection worker, Karen King, did not share her concerns with a legislator or an auditor, she is not entitled to whistleblower protection.
A portion of the DCF filing reads: “Defendant would point out that all unclassified employees serve at will. Their employment, including plaintiff’s, may be terminated at any time without providing ‘objective’ reasons.”
“What the state is alleging is that the plaintiff’s reporting misconduct was what’s called internal whistleblowing; that is, it was inside or within the agency,” said Rep. John Carmichael, a Wichita Democrat who’s also an attorney. “It wasn’t external whistleblowing. She didn’t go outside the agency. It’s not alleged that she talked to a legislator or an auditor.
“The federal whistleblower law is clear; it does not apply to internal whistleblowing. You have to be reporting illegal activities to entities outside of the agency,” said Carmichael, who was familiar with DCF’s and King’s filings. “The Kansas act isn’t as clear. It says you have to be in communication with legislators, auditors and ‘others,’ but it doesn’t define ‘others.’”
DCF also said in its filing that because King was an unclassified employee, she could be fired without explanation whenever the agency chose to do so. “Kansas is an at will employment state,” reads a portion of the filing. “No cause of action lies when an unclassified employee’s employment ends.”
Joe Mastrosimone, an associate professor at Washburn University School of Law, said unclassified employees have less protection than classified employees.
“Classified employees have civil service protections. Unclassified do not, which means they are certainly more susceptible to political pressures,” Mastrosimone said. “They are at-will employees.”
The Legislature is considering a bill that would give state agencies more flexibility in structuring their workforces by allowing them to convert vacant positions from classified to unclassified.
In its response, DCF said King’s supervisors had concerns about her performance, specifically her “ability to effectively supervise” subordinate employees. In addition, DCF alleged that King violated agency rules when she “improperly instructed a subordinate employee to delete information” from the data system.
In her filing, King said that prior to her dismissal she had never been warned or reprimanded by her supervisors. Her performance reviews, she said, had shown that she was meeting the agency’s expectations.
The allegation that King told a worker to delete information from the office’s computer system is not addressed in her lawsuit.
King was fired in September 2014. She sued on Dec. 1, 2014, demanding that she be reinstated with back pay.
Theresa Freed, a DCF spokesperson, declined to elaborate on the agency’s official response to King’s lawsuit.
Attempts to reach King’s attorney, Orvel Mason, for comment were unsuccessful.
The two sides agree that between 1985 and 2000, King was a child protection worker at Department of Social and Rehabilitation Services offices in Winfield and Wichita. In 2000, she accepted a social work position with the Pediatric Intensive Care Unit at Wesley Medical Center in Wichita.
King accepted a supervisory position at the DCF office in Winfield in April 2013, overseeing eight child protection workers in Barber, Cowley, Harper, Kingman, Pratt and Sumner counties.
She alleges that in July 2014 she realized that a social worker had filed paperwork indicating that she had conducted safety checks on children on days she had not worked.
King said she called the inaccuracies to the attention of her supervisor on several occasions. Each time, she said, she was told her concerns had been “turned over to personnel.”
A month later, King said she was told the worker would not be disciplined because too much time had passed. At that point, King said she “contacted the worker in question and notified her some of her documentation was not correct and instructed her to make safety checks and visits as required to protect children.”
The agency rebutted King’s claim in its response.
“It was determined after careful review, that the error noted in the case could have been an inadvertent mistake made by the worker,” the agency said. “There was no indication of a pattern of the employee making this error.”
King worked for the agency during a contentious period when the number of at-risk children entering the state’s foster care system was increasing to record levels.
According to DCF reports, 6,156 foster children were in “out-of-home placements” in April 2014, which, at the time, was an all-time high. The monthly counts topped that number in May, June, July and October 2014. All of these records were broken in February when DCF reported having 6,275 children in foster care.
DCF officials have attributed the increases to corresponding greater public awareness and reporting of child abuse and neglect. Child advocates have cited how the increases coincided with cuts in the state’s public assistance programs.
Dave Ranney is a reporter for KHI News Service in Topeka, a partner in the Heartland Health Monitor team.
