Former security chief loses whistleblower claim

By Geoff Dornan

Appeal Capitol Bureau

The former head of electronic security for Nevada's Department of Information Technology has lost his claim he was illegally fired because he blew the whistle on missing CDs containing personnel data.

James Elste was terminated in July last year, he argued, because he reported and demanded action to notify state workers their personal identifying information might be in the wrong hands.

"I consider this action a direct reprisal to my identifying and reporting the security incident to the Department of Personnel and my concern for their failure to take appropriate action," he said in his challenge seeking reinstatement.

The security issue was raised over personnel's practice of sending CDs containing employee information to all agencies every pay period so the financial managers there could verify hours, overtime and other data. More than 13,000 CDs were sent out over a three year period with no system for tracking them. And the data - including Social Security numbers - wasn't even encrypted.

Personnel Manager Todd Rich said the entire system has since been changed. The CDs now require a password to access data and identifying information, including Social Security numbers replaced by a unique employee ID number. In addition, they must be accounted for after being used to reconcile timecards.

He also said all but a few of the missing discs have been accounted for and that there have been no reports that any of that data was used to steal a state worker's ID.

Elste said the lack of control over employee information constitutes improper governmental action, which means he is protected from retaliation or termination for reporting it.

Hearing officer Bill Kockenmeister held four days of hearings into Elste's petition last year. In his opinion issued Monday, he ruled that Elste had "failed to sustain his burden that he was terminated for disclosing improper governmental action."

His 49-page opinion says the evidence indicates Elste's recommendations for handling the CD issue were mostly adopted and that no one was angry at him for pointing out the issue.

"Even if Petitioner had made such a showing, his conduct after he was informed of his termination would preclude reinstatement."

Elste admitted during the hearing that he became loud and used profanity after DOIT Manager Dan Stockwell told him he was fired.

There was also testimony during the hearings that Elste had been nearly fired once before for his abusive and aggressive behavior with other employees and workers from other agencies. Other workers testified they too had feared for their safety in arguments with Elste.

Kockenmeister said his conduct the day of his termination was inexcusable.

"Numerous witnesses testified that they feared for their safety as a result of Petitioner's profane and aggressive tirade," he wrote.

"Simply put, Petitioner's conduct after his termination precludes Petitioner from continued employment and deprives him of any remedy even if it was determined that his termination was in retaliation for his disclosure of improper governmental action."

Elste could appeal the ruling to district court.

• Contact reporter Geoff Dornan at gdornan@nevadaappeal.com or 687-8750.