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Whistleblower protected by state law is also limited by it

Colorado whistleblower laws were changed during COVID to encourage speaking up. In this case, those same laws are also driving up legal costs.

DENVER — Whistleblower laws in Colorado have changed because of COVID.

In the last two years, lawmakers gave public employees more protection to blow the whistle on workplace health and safety concerns.

But a case that started during COVID has revealed that workers who speak up may be protected up to a point.

"I was able to identify and then try to correct fiscal mismanagement in the HIV/STI program," Dr. Tony Cappello, former Colorado Department of Public Health and Environment (CDPHE) Director of Disease Control and Health Response, said.

Cappello was put on administrative leave and fired in 2020, after blowing the whistle on federal grant money he said was being misspent by CDPHE.

"There was a lot of money, millions of dollars, not being properly tracked, properly managed," Cappello said.

He said Ryan White HIV/AIDS Program federal grant money was being spent on prevention and PrEP, the medicine that helps prevent someone from getting HIV.

"PrEP is used to prevent HIV, so it would be used on people who do not have an HIV diagnosis," Cappello said.

Spending the money properly would be on people who have an HIV diagnosis, not preventing an HIV diagnosis.

He sued under the state's Employee Protection Act.

In July 2021, there was a week-long hearing to determine if the case could continue.

During that hearing, CDPHE Director Dr. Jill Ryan "conceded that the federal rebate dollars could not be spent on PrEP."

The Colorado Sun previously reported on the hearing as it happened. 

Ryan also testified during the hearing that she was confused about the limitations on those grant dollars.

"I mean, all I can say is that HIV funding is super complex and super nuanced. And just because I have an email to me that describes some of this does not mean that I had put all of the pieces together in November about the funding," Ryan testified in 2021.

During that hearing, Ryan testified as to why she fired Cappello.

"Because he had lost my trust because he hadn’t made me aware of how bad things were. He hadn’t asked for my help, and consequently this had devolved into such a crisis of major proportion it’s going to take us a long time to recover from it," she said. "And ultimately, I mean, just broke the trust of the community, and this is such an important part of the job description."

The judge ruled that the case could continue.

It has dragged out since.

On July 29, however, the same judge ruled that the state is bound by the Colorado Governmental Immunity Act and the maximum judgement that Cappello could get, if the case went to trial, would be $387,000.

The state offered to provide that maximum amount.

The judge ruled that the case could be dismissed, the payment be made and "each party shall be responsible for his or its attorney fees and costs."

"The costs of attorneys fees over two years is substantially greater than the cap," Cappello said.

He said he is in the negative. The cost of his case is more than the $387,000 governmental immunity limit.

"You don't have to make money on a situation like this, I just want to be made whole," Cappello said.

Here is a whistleblower, using state law to fight back, being limited by state law.

"In a situation like this it really deters, and really has me going back and thinking, 'should I have done the right thing?'" Cappello said. "In hindsight, I probably would still do the right thing, but what I would hope is that the legislature would see the concerns that have come out of this case, specifically."

Since 2020, lawmakers have passed two bills that have been signed into law to strengthen protections for public employees who want to blow the whistle over health and safety issues.

Sen. Robert Rodriguez (D-Denver) sponsored those two bills and said he would review what has happened in this case to see if additional legislation is needed.

What causes a two-year case to cost more than $387,000?

According to Cappello's attorney, the cost is from:

  • Five-day trial in 2021
  • Briefing of legal issues
  • 32-page opinion
  • Depositions before trial
  • Thousands of pages of documents produced, reviewed and analyzed
  • Mediation and settlement negotiations
  • Damages analysis with consultants

When asked about the limitation in this case, the spokesman for Attorney General Phil Weiser (D) said that the office has no comment, because the AG's Office is involved in defending the state.

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