Workers’ Comp Official Memo: Cooperation with Probe Optional

Employees at North Dakota’s workers’ compensation agency don’t have to cooperate with a Highway Patrol investigation into possible violations of the state’s whistleblower protection laws, the agency’s administrator says.

The patrol is investigating whether Workforce Safety and Insurance officials broke the law by firing Todd Flanagan, a former agency investigator, and suspending Jim Long, its chief of support services. Long was suspended from his job with pay on Nov. 15.

Flanagan and Long have said they notified Attorney General Wayne Stenehjem about possible wrongdoing at the agency. The law is meant to protect state employees who provide unflattering information about their agency against being fired or demoted.

Stenehjem asked the patrol to investigate the matter after Richard Riha, the Burleigh County state’s attorney, referred the matter to Stenehjem’s office.

In an e-mail sent to WSI employees, John Halvorson, the agency’s interim chief executive officer, said agency workers could make their own decision about whether to cooperate with the Highway Patrol’s probe.

“It is a criminal investigation and as such, you may exercise your right not to speak with them,” Halvorson’s e-mail says. “WSI will not require you to speak with them, nor will WSI prevent you from doing so.”

The e-mail says employees must provide notice about Highway Patrol interviews that are conducted inside the agency’s offices, to allow a WSI lawyer to observe them.

The attorney, Anne Green, “will be representing WSI at the interviews, and will not be representing any WSI employees,” the e-mail says.

Stenehjem, in a comment relayed by spokeswoman Liz Brocker, said North Dakotans “have a right to expect that public employees will fully cooperate in investigations,” consistent with their right not to incriminate themselves.

Stenehjem said he has asked the Highway Patrol’s superintendent, Col. Mark Nelson, to brief him if there is “any lack of cooperation with this process.”

Mandan attorney Tom Tuntland, who is representing Long, called the e-mail “a blatant threat” and an “attempt to intimidate WSI employees.”

“Why would anybody in his right mind, working for WSI, talk to the Highway Patrol after they’ve been given that e-mail?” Tuntland asked. “It’s a flat warning, period.”