Creating Citizen Enforcement Act May Combat Institutional Crime

Proclamations by politicians in support of whistle-blowers and fighting crime are as American as mom and apple pie. Who could deny the value, in a democratic society, of protecting the fundamental right of speaking out to expose crimes in the form of serious waste, fraud, abuse of authority and threats to public health and safety? How many scandalous disasters like the Orange County bankruptcy might be avoided?

The perfect opportunity for a progressively minded city council to capitalize on the universally accepted principles of fighting crime and protecting whistle-blowers is to adopt a Citizen Enforcement Act. Patterned after the private attorney general model of the highly successful federal False Claims Act, a local Citizen Enforcement Act could help to revolutionize our fight against crime and serve as a model for neighboring municipalities, the county, the state and even the federal government.

Under the existing False Claims Act, private citizens can initiate actions in court on behalf of the federal government in order to expose contractor fraud against the government. Whistle-blowers have a market incentive insofar as they are entitled to receive a percentage of the money recovered by the government. Since the False Claims Act was amended in 1986, $1.8 billion has been recovered to the U.S. Treasury from fraudulent contractors, according to Sen. Charles Grassley (R-Iowa), and has helped to deter untold billions more.

The idea of a local Citizen Enforcement Act is to expand the federal False Claims Act model from government contract fraud to any illegality. The need is clear. Citizens have been frustrated that they have not been empowered with meaningful control of their lives through expensive, cumbersome government regulatory agencies. The examples are ubiquitous:

It took several years for a Southern California meat inspector to get the Department of Agriculture to acknowledge and correct its secret policy of allowing the release of tuberculosis-infected beef to consumers after he challenged the practice in 1989.

It took nearly 30 years for the federal government to put a stop to the illegal release by its private contractor of hundreds of thousands of pounds of uranium dust into the air and ground water at the government-owned Fernald uranium reprocessing facility in Ohio. The Department of Energy knew the shocking truth yet did nothing to stop or clean up the practice until exposed by whistle-blowers working at the facility.

The space shuttle Challenger disaster in 1986 occurred despite the protestations by whistle-blowing scientists who objected to the launch. With no ability to obtain court-ordered injunctive relief, they were simply overruled by Morton Thiokol managers more concerned about timetables, and the public was informed only after the tragedy took the lives of all aboard.

The goal of a Citizen Enforcement Act would be to enable citizens to help enforce the law against government and corporate wrongdoing. In its most modern version, a citizen could obtain injunctive relief against an imminent threat, and take his or her case to a jury of peers to decide whether the law has been violated. The most effective approach would permit actual and punitive damages against individual and institutional wrongdoers, whether public or private. This would provide a market incentive for well-heeled law firms to decide there is more profit to be made from defending the public than from protecting lawless but wealthy institutions.

An employee protection provision would be fundamental to any Citizen Enforcement Act. Stories of retaliation against whistle-blowers in this country are legion. The public interest requires that it be illegal to discriminate against government or private employees who make disclosures responsibly challenging violations of law, because they are invaluable to law enforcement, to the public’s right to know and to prevent or minimize the consequences from institutional misconduct.

Consider other types of looming illegality we might put to a halt locally: contaminated and poisonous food sold to your child’s school lunch program, as has occurred elsewhere in the country; allegations of embezzlement of public funds like the recent Yorba Linda city manager scandal; corruption in your city’s open bidding processes in awarding trash hauling contracts; secret dumping of cancer-causing and other hazardous waste that might poison ground water supplies and wildlife.

Progressive local legislators can score big with a win-win-win Citizen Enforcement Act. It could be a model that would be replicated by neighboring communities, the county, state and hopefully, one day, the federal government. Are there any smart tough-on-crime leaders out there with the vision to enlist the entire citizenry to really “take a bite out of crime”?