Why Virginia officials ruled the Parole Board leaks don’t count as whistleblowing

A former state investigator accused of leaking confidential information about the Virginia Parole Board acknowledged she was “ultimately responsible” for the material making its way to the news media last year, according to an employment-dispute ruling that upheld the investigator’s firing despite her efforts to seek whistleblower protection.

After she was fired in March of 2021, former investigator Jennifer Moschetti protested through the state’s employee grievance process, according to a new documents filed as part the wrongful termination lawsuit she filed against the Office of the Inspector General, her former employer, and two officials from former Gov. Ralph Northam’s administration. The grievance proceeding didn’t go her way, but she’s continuing to challenge her ouster in both state and federal court.

Though Moschetti contends she was retaliated against for disclosing information that otherwise would have remained hidden from the public, her firing was upheld last year by a hearing officer appointed by the Supreme Court of Virginia, a decision the defendants’ attorneys are spotlighting to argue her lawsuit should be dismissed.

“Moschetti conceded, under oath, that she sent confidential information to her personal email address on numerous occasions, which included, among other things: mental health information of various incarcerated offenders, identifying information of crime victims, witnesses to crimes and other individuals involved in board matters,” the defendants’ filing states. “Moschetti also conceded that her actions violated OSIG confidentiality policies, and that she was ultimately responsible for the information leaked to the media.”

The firing was upheld a second time in November during a review by the state’s Office of Employment Dispute Resolution, which concluded Moschetti was fired for “information security breaches” that occurred before she attempted to go public as a whistleblower. Those breaches only became an issue after Moschetti tried to anonymously pass information to the General Assembly on March 3 and invoke whistleblower status, which her lawyer says led OSIG to zero in on her as the suspected leaker. By that time, some of the leaked material had already shown up in news stories.

The pending lawsuit over the Parole Board leaks touches on broad questions of what Virginia’s whistleblower law should and shouldn’t protect, as well as the free speech rights of public employees tasked with investigating government wrongdoing. Personnel disputes within state government are usually kept confidential, but the grievance records filed in court last week offer a rare glimpse into how the state responded when an employee broke confidentiality rules and fueled news coverage that higher-ranking officials, including Northam Chief of Staff Clark Mercer and Secretary of Public Safety Brian Moran, were trying to tamp down.

Moschetti’s lawsuit, which seeks $11 million in damages, includes claims of wrongful termination, defamation and First Amendment retaliation. The defendants named in the case are OSIG, Inspector General Michael Westfall, OSIG spokeswoman Kate Hourin, Moran and Mercer.

The defendants are being represented by a team of lawyers from the Richmond office of Ogletree Deakins, a firm that specializes in labor and employment law. Attorney General Jason Miyares, whose office is conducting its own investigation of the Parole Board issues Moschetti probed, is not involved in the case. Miyares has previously called Moschetti a “whistleblower,” a term central to the legal dispute. 

Miyares spokeswoman Victoria LaCivita said decisions on how to handle the case “were made by the previous administration.” Moschetti filed the federal lawsuit on Jan. 14, the day before Miyares was sworn in as the new attorney general. Moschetti filed a similar but narrower suit in Richmond Circuit Court in December, also arguing she was wrongly denied whistleblower protection.

Moschetti was fired shortly after she contacted General Assembly leaders to try to invoke whistleblower status, a move that added more drama to a heated election-year controversy. At the time, she was being represented by Virginia Beach attorney Tim Anderson, an outspoken Republican who went on to win a House of Delegates seat last November.

Republicans in the General Assembly had pointed to Moschetti’s reports as confirmation the Democratic-appointed Parole Board violated state law and its own procedures by failing to properly notify victims’ families and prosecutors in several controversial inmate release decisions made in early 2020. 

The Northam administration and Democratic lawmakers accused Moschetti of being biased against the Parole Board and dismissed many of her findings as inaccurate. Northam officials also suggested OSIG’s hotline had been abused to whip up an overblown scandal Republicans could use in their 2021 campaigns. A law firm’s review of the matter last year concluded Moschetti was “most likely biased,” but Parole Board critics derided that report as an effort to attack the investigator instead of the alleged misconduct her investigations revealed.

The parolee who drew the most scrutiny was Vincent Martin, who spent 40 years behind bars for the the murder of a Richmond police officer in 1979. Though praised as a model inmate while incarcerated, Martin’s release outraged many in the law enforcement community who felt the decision diminished the seriousness of his crime and cast aside opposition from the murdered officer’s family. Moschetti became involved when the controversy produced a wave of complaints to the state’s waste, fraud and abuse hotline run by the inspector general’s office.

Moschetti’s report on the Martin case was almost entirely redacted before being released to the media and the General Assembly. Republican leaders demanded an unredacted version, which they then released to the news media. The inspector general’s office would not release Moschetti’s subsequent reports on the Parole Board to the General Assembly or the media, and they only became public through the unauthorized disclosures.

Though OSIG’s attorneys say Moschetti violated clear confidentiality policies she agreed to in order to protect the integrity of the agency’s investigations, her lawyer has argued her actions are exactly what whistleblower laws should protect.

“Many, if not most, of whistleblowing situations occur because someone is brave enough to disclose previously undisclosed (and usually confidential) information,” Moschetti attorney Richard F. Hawkins III, wrote in an appeal letter last October to the state’s Office of Employment Dispute Resolution. “As such if the agency’s position is correct, then a whistleblower could never disclose the ‘evidence’ she needs under the statute without engaging in disqualifying misconduct. That would be a Catch-22 which would substantially dilute, if not completely frustrate, the entire purposes behind the whistleblower protections.”

Virginia’s whistleblower law shields employees who make “good faith” reports of wrongdoing or abuse to a proper authority, including the legislature. The law specifies it does not protect disclosures the employee knew or should have known were “confidential by law.”

Technically, Moschetti was fired for mishandling confidential material by sending investigative records to her personal email account at least 25 times, according to state records. In her grievance filing, Moschetti said she had been working remotely because of the pandemic and needed to email work files to her personal account in order to print them on her home office printer, which she said she couldn’t do from her work-issued computer.

Moschetti also sent copies of her draft reports to a “former law enforcement officer,” telling him: “In case I get ‘Epsteined,’ here’s the truth,” per court filings. That was a reference to disgraced financier Jeffrey Epstein, whose jail-cell suicide in 2019 sparked conspiracy theories about a potential cover-up.

Moschetti’s court filings insist she did not share her files with the media, but the grievance records say she was the original source of the material given to the media by “a third party.”

Moschetti’s employment hearing officer determined her report to the General Assembly was not in good faith because “it was intended to protect her from discipline for her earlier policy violations” and didn’t include any clear allegations of wrongdoing or abuse.

Moschetti’s attorneys have argued it was her communication to the General Assembly that “made her a suspect” in OSIG’s hunt for the leaker behind the media coverage. It wasn’t until afterward, they note, that the agency discovered the violations of email protocols and punished her. The fact that Moschetti also disclosed the material to a third party not in state government, her lawyer wrote in the grievance appeal letter, should not disqualify her as a whistleblower.

The state’s logic, Moschetti’s lawyer wrote in a request for an administrative review of the hearing officer’s ruling, leads to an “absurd result” if whistleblower protections only apply to those who strictly follow all confidentiality rules. Moschetti, her lawsuit claims, became a ‘scapegoat for having shined a light on Board misconduct.”

One of the first documents leaked to the news media was an earlier, 13-page draft report on the Martin case that included more serious allegations about Parole Board misconduct. That document was eventually shortened to six pages, a decision OSIG explained as innocuous editing to ensure all the report’s conclusions were supported by facts and the law.

“After she submitted her draft report, it was sanitized, reduced, redacted and then released, but only in redacted form,” her suit says. “When the media finally obtained Moschetti’s initial report, which contained far more details about alleged board misconduct than the sanitized final report, she was investigated, fired and defamed.”

In their filing seeking dismissal of the lawsuit, lawyers for the defendants called the case meritless.

“This case is not about protecting whistleblowers,” the defense wrote. “Rather, it is about an employee who admits to stealing and disseminating highly sensitive and confidential information in direct violation of her job duties, her employer’s instructions, the law and multiple internal and external Commonwealth policies.”