News

The Government Attorney as Public Administrator

Introduction: 
When students studying public administration first begin to learn about the profession, they’re generally told that the field of public administration focuses on the formation and management of public agencies. Their studies most commonly focus on issues such as supervision, public resources, accountability, human resources, budgeting, public welfare, bodies politic, and the description, analysis, solutions and synthesis of contemporary management problems in public sector agencies. They hear terms like “county manager,” “city manager,” “department director,” “agency head,” etc. equated with the profession. What the seldom hear are terms like “county attorney,” “law director,” “city attorney,” or “chief legal counsel,” associated with public administration. Students either presume or are taught that public sector attorneys are too busy embroiled in litigation, conducting legal research, imparting legal advice, or drafting laws, ordinances, and resolutions to be bothered with public management and administration. This is an unfortunate misnomer. In fact, public sector attorneys are consistently called upon to perform a wide range of public management and administrative duties. 
 
The Attorney as Public Administrator:
During the 30-plus years I have spent serving in the public sector, I was afforded the opportunity to serve three different public entities as chief legal counsel. As you can imagine, I was called upon to provide timely legal advice to bodies politic and the various department directors and managers; study, interpret, and apply laws, decisions, rules of court, and other authorities in preparation of cases; litigate a wide range of matters in federal & state court; draft and negotiate contracts and other legal documents, and attend all public meetings, often serving as parliamentarian in the process. However, I was also required to supervise, train, lead and motivate a professional staff, prepare and defend a budget, and in one instance, contemporaneously serve as the county’s risk and insurance manager. For one large, urban county, I was likewise expected, among other things to:
 
  • Serve as a positive example to department heads and County personnel with regards to workplace actions, decisions, management skills, attitude, and adherence to County policy;
  • Embody teamwork and cooperation within and across County departments and with the public; 
  • Identify, define, evaluate, and effectively resolve problems facing county officials, department heads, and employees; determine alternative courses of action and effectively recommend the most advantageous course of action by the officer, department head, or employee faced with the problem; proceed to assist in the implementation of the solution; 
  • Remain committed to innovation, creativity, service excellence, and transforming the County through leading ideas and practices as well as serve as a key designer, promoter, motivator, and catalyst for the alignment of culture with organizational values within the County’s departments; and,
  • Serve as the council’s liaison to members of the general public, and the County’s federal & state legislative delegations.           
It is important to note that the above duties and responsibilities were not unique to the positions I held. A review of job descriptions for public sector attorney employed at the state and local level across the United States revealed the following functions essential to such positions:
 
  • Provide holistic services to the public by seeking ways to integrate programs or services provided by other departments, divisions, and agencies; 
  • Work in partnership with other employees, departments/divisions, agencies, and the public in delivering effective and innovative services;
  • Manage the recruitment of competent employees, setting expectations and providing necessary training for new employees; coaching and mentoring; assignment of work, evaluation of work product, initiating appropriate corrective or disciplinary action and developing and motivating incumbent staff in accordance with established policy;
  • Ensures citywide staff compliance with departmental policies and procedures; and 
  • Maintain harmony among all county employees, elected and appointed officials, and resolve grievances, and assist supervisory staff in the performance of their duties;
  • Monitor and evaluate the efficiency and effectiveness of service delivery methods and procedures; recommend to city council appropriate service and staffing levels; 
  • Manage and participate in the development and implementation of goals, objective policies, and priorities for assigned programs countywide; recommend and administer policies and procedures designed to improve service delivery to the general citizenry.
Summary:
The days of the public sector attorney being limited to litigation, imparting legal advice, and preparing legal documents are but a memory. The fact that many law schools routinely offer joint JD/MPA programs is telling indeed. Today’s aspiring public sector attorney is well-advised to take as many courses in public administration, management, and policy as possible. Such a well-rounded, holistic approach toward providing timely legal, administrative and management advice to bodies politic and the citizens they serve, will make for good government that benefits all. 

—Joseph G. Jarret is a public sector manager, attorney and mediator who lectures full-time on behalf of the Master of Public Policy and Administration program in the Department of Political Science at the University of Tennessee, Knoxville. He is a former United States Army Combat Arms Officer with service overseas and is a past chair of the TBA’s Local Government Section. He holds the B.S., MPA and J.D. degrees and is currently a candidate for the Ph.D. in educational leadership & policy studies.
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Recent Ruling by Sixth Circuit Court of Appeals Gives Transgender Workers New Protection Under Title VII

Employers are moving to adopt or strengthen policies to prevent bias against transgender people after the latest in a series of court rulings that have extended protections for an increasingly diverse workforce, The New York Times reports. A recent opinion by the Sixth Circuit Court of Appeals maintains that transgender people are protected by the civil rights law that bans workplace discrimination based on sex, rejecting the position taken by Attorney General Jeff Sessions in October 2017.
 
The case was brought by the Equal Employment Opportunity Commission (E.E.O.C.) on behalf of a funeral director fired by a Michigan funeral home after informing the owner that she intended to transition from male to female and would dress as a woman while at work. Scott Rabe, an expert on employment law at the firm Seyfarth Shaw, said that the ruling was important because “it addresses two hot-button topics in employment law: the scope of the definition of ‘sex discrimination’ under Title VII and the impact of laws protecting the free exercise of religion in the workplace.”
 
The funeral home maintained that it did not violate federal law by requiring the employee to comply with a sex-specific dress code. Additionally, the owner of the home, Thomas Rost, said that forcing him to employ the transgender worker would impose a substantial burden on his sincerely held religious beliefs, violating the Religious Freedom Restoration Act of 1993. In court papers, Rost said he wanted to run his business in keeping with his religious belief that “a person’s sex (whether male or female) is an immutable God-given gift and that people should not deny or attempt to change their sex.”
 
In a memorandum to Justice Department lawyers, Sessions said that “Title VII’s prohibition on sex discrimination encompasses discrimination between men and women but does not encompass discrimination based on gender identity per se, including transgender status.” The court disagreed, saying that employees may not be discriminated against because they fail to conform to “stereotypical gender norms” — in this case, an employer’s notion of “how biologically male persons should dress, appear, behave and identify… Job discrimination based on a person’s transgender status violates Title VII of the Civil Rights Act of 1964” the court ruled. “Discrimination based on transgender status is a form of sex discrimination,” said the decision, written by Judge Karen Nelson Moore for a unanimous three-judge panel, because “an employer cannot discriminate against an employee for being transgender without considering that employee’s biological sex.”
 
“The ruling is a big win for the Equal Employment Opportunity Commission and for transgender people,” said Rabe. “The court sent a strong message that the Religious Freedom Restoration Act has minimal impact on the E.E.O.C.’s authority to enforce the anti-discrimination laws under Title VII of the Civil Rights Act.” The court decision is binding in states covered by the Sixth Circuit: Kentucky, Michigan, Ohio and Tennessee, but its reasoning could certainly influence future decisions. The funeral home has not said whether it will appeal the ruling. You can read the court's opinion using this link.
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Bill Could Define How Tennessee Addresses 'Gig Economy Workers'

The House Consumer and Human Resources Committee advanced legislation that is drawing criticism from national workers' rights advocates reports The Nashville Post. HB 1978 proposes amendment to Tennessee Code Annotated, Title 50; Title 56 and Title 62, relative to employment relationships and has already passed the Senate and is likely to pass the House, given the Republican supermajority.
 
This would further most gig workers, ‘marketplace contractors,’  as independent contractors and not benefit eligible employees. Currently, the distinction between a contractor and an employee hinges on the idea of control. Telling a worker when and how to perform a job, providing training or supplies, monitoring their activity and determining the rate of pay are all factors that would support a finding that the worker is an employee, freeing them from having to pay workers' compensation premiums and unemployment taxes or obeying state anti-discrimination and minimum wage laws.
 
The bills have provoked a response from the National Domestic Workers Alliance, a national nonprofit advocacy group. Palak Shah, the organization's director of social innovations, recently went to Tennessee to caution lawmakers that the bill would permanently carve many workers out of rights to which they would be entitled as employees. "It's just such a sorry excuse for a business model to make vulnerable workers more vulnerable just so you can tell your investors that one day you might be solvent," Shah said. "This legislation basically ensures that domestic workers online will never have protection."
 
House sponsor Rep. Pat Marsh (R-Shelbyville) said most people working for gig economy platforms are doing so part-time and aren't expecting and don't need the protections offered to standard full-time employees. "We already have people who go out and do yard work on their own," said Marsh. "If they get on a platform it gives them access to more customers." Others point out that these platforms take a cut from their workers, along with possible additional fees, while the individual has to cover their own costs like equipment, transportation, insurance and self-employment taxes.
 
Critics have said they fear the laxer regulations will drive down wages, ultimately forcing them to subcontract to compete. Rep. Dwayne Thompson (D-Cordova) voiced similar concerns, comparing some platforms to Walmart's effect on businesses in a small town. Thompson was the only vote against the legislation. One of the other platforms with an interest in the legislation passing is Brentwood-based Takl, which counts Senate Commerce Committee Chairman Jack Johnson (R-Franklin) as an executive. Johnson co-sponsored the bill in the Senate.
 
Gov. Bill Haslam's administration was opposed to the version that passed the Senate, but a state Department of Labor official told the House committee that the amended version has addressed some of their concerns. Haslam spokesperson Jennifer Donnals said the governor "is deferring to the will of the legislature on this bill as amended." The main Senate sponsor, Sen. Bo Watson (R-Hixson), has not seen the amended wording, said his aide Tres Whittum, but is fine in "principle" with the changes.
 
The house will vote on these amendments today. You can track the progress of this legislation using this link.
 
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Appeals Court Upholds Ruling that Strikes Down Residency Requirement for Liquor Store Owners

The U.S. Court of Appeals for the Sixth Circuit this week upheld a lower court ruling that found Tennessee's residency requirements for liquor store owners are unconstitutional. State law required a liquor store owner to live in Tennessee for at least two years before being able to apply for a liquor store license, and for 10 years in order to renew one.
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ABA Delegates OK Draft of Uniform Law on Virtual Currency

Delegates meeting at the ABA Midyear Meeting in Vancouver approved a draft uniform law regarding virtual currency businesses, the ABA Journal reports. Many involved with cryptocurrency “are not enamored much in the way of regulation,” according to Fred Miller, the chair of the committee at the National Conference of Commissioners on Uniform State Laws that drafted the legislation. He says, however, that there is near unanimity from advocates, business people and lawyers regarding the need for this type of legislation. “We wanted to allow some regulation and allow some experimentation and innovation as well."

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TBA Gears Up for 2018 Mock Trial Tournament

The Tennessee Bar Association will host the upcoming Tennessee High School Mock Trial Tournament on March 23 and 24 in Nashville. The Mock Trial is a two-day, single-elimination bracket-style competition where 16 high schools face-off against each other in the Davidson County Courthouse. Each team is scored on their trial preparation and skills. 

We need TBA volunteers to help be bailiffs and jurors (scorers) for the event. After signing up, we will send you a Volunteer Memo with all the information you need for competition including; parking, hotel, downtown map, courthouse rules, and reimbursement information. Come be a part of the Young Lawyers Divisions’ March Madness! Feel free to contact YLD Director Stephanie Vonnahme with any questions.

To volunteer for this event, click here.

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Glen Campbell's Longtime Publicist Subpoenaed Regarding Contested Will

The longtime publicist of Glen Campbell, who passed away from Alzheimer's Disease last year, has been subpoenaed to testify regarding the late singer's competence when he signed a now-disputed will, according to The Tennessean.

Records in Davidson County Probate Court show a subpoena has been issued for Sanford Brokaw to appear for testimony in Nashville on Feb. 20. The subpoena calls on Brokaw to "provide proof of the decedent's capacity since 2002” and submit "all communications regarding the estate of the decedent."

The contention is regarding the exclusion of three of Campbell's children, who have been cut out of his estimated $50 million estate, according to a 13-page will filed by his widow in 2006, Rolling Stone reported. The will states that he was "specifically excluding" the three children from receiving anything under the will or a related trust, and names his wife, Kim, as executor. Court records indicate there was an earlier version of Campbell's will, dated in 2002.

This was not the first interfamilial feud, as Campbell’s eldest daughter Debby and son Travis previously won a legal victory after claiming that Kim Campbell was denying them the right to visit their father during his illness. Tennessee Gov. Bill Haslam subsequently signed a bill into law called the Campbell / Falk Act, which allows family members and close friends of a person with Alzheimer’s disease, dementia or other disabilities to visit a loved one in person, or maintain contact with them by phone, email or mail, despite the stated wishes of a legally appointed conservator.

Campbell was first diagnosed with the Alzheimer’s in 2011 and died in August 2017. A Netflix film, "I’ll Be Me", details his diagnosis, final tour and his farewell to fans.

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Congress Delays 'Cadillac Tax' and Other ACA-Related Taxes and Fees

Congress on Monday passed the Federal Register Printing Savings Act, which temporarily continued funding federal government activity and appropriated funds to various health-related programs such as the Children's Health Insurance Program, Medicaid and childhood obesity programs.
 
The Act also addressed the effective date for the controversial 40 percent excise tax on high-cost health care, commonly referred to as the "Cadillac Tax," which has been delayed until 2022. At a minimum, the new two-year delay gives employers and plan sponsors more time to adjust health plan design to avoid the Cadillac Tax, legislation that has been unpopular on both sides of the aisle.
 
The Cadillac tax was created as part of the Affordable Care Act largely to help fund benefits to the uninsured under the law. The U.S. Joint Committee on Taxation estimates that delaying the medical device tax will lower revenue by $3.8 billion over a decade, delaying the Cadillac tax will cost $14.8 billion and suspending the health insurance tax will cost $12.7 billion.
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Don't Forget: Winter CLE Blast Tomorrow!

Need CLE hours fast? We can help! The annual Winter CLE Blast is less than a day away. With this program, you can complete up to 11 hours of Dual CLE credit on your own time. Our registration desk will be open from 7 a.m. to 6:45 p.m. on Feb. 21, providing you the flexibility to create your own schedule and take as many or as few hours as you need. Payment will be determined at checkout depending on the number of hours you attend. 

Highlights

  • Flexible to your schedule
  • Up to 11 Hours of CLE
  • Ethics Credits
  • Compliance CLE
  • Live Credit Hours

When: Feb. 21, registration begins at 7 a.m., CST

Where: Tennessee Bar Center, 221 4th Ave N., Nashville, TN 37219

 

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Don't Forget– Estate Planning & Probate Forum 2018 This Friday!

The Tennessee Bar Association will host the 2018 Estate Planning & Probate Forum at the Embassy Suites in Franklin on Friday. This event provides six hours of CLE, including an hour of dual credit, and will be focused on timely, relevant topics to help you stay on top of trends affecting this area of law. Legislative updates and the ever-popular Probate Panel will ensure that you leave with the knowledge necessary to advance your practice.
 
Do not miss this opportunity to fulfill CLE requirements while networking with attorneys who share your focus and cultivating relationships with fellow practitioners. Section members receive a discounted rate for the program. Here's the key info: 
 
When: Feb. 23, 2018; registration begins at 8 a.m., CDT
 
Where: Embassy Suites Hotel, 820 Crescent Center Dr., Franklin, TN 37067
 
Topics include:
  • Family Law Issues
  • IRA Planning and Best Practices
  • Medicare Benefits
  • Legislative Updates
  • Probate Panel
 
Speakers/Producers include:
  • Jennifer Exum, Chambliss, Bahner & Stophel PC, Chattanooga 
  • Jeffrey Atherton, Chancery Court, Chattanooga
  • Newman Bankston, Egerton, McAfee, Armistead & Davis, Knoxville 
  • Frank Cardenas, FEDlogic LLC, Nashville 
  • Donald Farinato, Hodges, Doughty & Carson PLLC, Knoxville 
  • Sandra Garrett, The Board of Professional Responsibility, Brentwood 
  • Kathleen Gomes, Probate Court of Shelby County-Division One, Memphis
  • David Parsons, Attorney At Law, Nashville 
  • Joel Roettger, Gentry, Tipton & McLemore, Knoxville 
  • Stacy Roettger, The Trust Company of Knoxville
  • Albert Secor, Southeastern Trust Company, Chattanooga

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Election Officials Say Tennessee Voting Records Secure

State election officials told a panel of state senators yesterday that Tennessee’s voting procedures are safe, but they are nonetheless preparing preventative measures to protect the vote, WPLN reports. The officials, led by Secretary of State Tre Hargett, noted that while most votes are cast via electronic machine, those machines are not hooked to the internet. Last year, state officials found about 40 potential cases of improper voting out of more than 4 million votes cast.

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SCOTUS Grants Review of SEC Judicial Appointment Process

The U.S. Supreme Court on Friday accepted a challenge to the appointment process for administrative law judges at the Securities and Exchange Commission, the ABA Journal reports. SEC judges are selected by the chief judge and approved by the SEC personnel office. Lucia v. SEC questions whether the judges are actually “inferior officers” under the appointments clause and subject to appointment by the president, the head of a federal agency or a court. 
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Waller’s Nashville Office Hires Hospitality Team from Bone

The Nashville office of Waller Lansden Dortch & Davis LLP has hired a whole team of retail and hospitality attorneys from another prominent firm, the Nashville Business Journal reports. William Cheek, Robert Pinson, Olatayo Atanda and Kimberly Faye all departed Bone McAllester Norton PLLC for Waller. Cheek is known for his work in alcoholic beverage law, and is a founding member of the Alliance of Alcohol Industry Attorneys and Consultants.
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Court Rules Johnson City Won’t Have to Pay County for Liquor Taxes

An appellate court in Knoxville has reversed a lower court’s order that would have forced Johnson City to share years of liquor-by-the-drink tax revenue with Washington County, the Johnson City Press reports. The decision was issued on Wednesday by Judges Thomas Frierson, Michael Swiney and Richard Dinkins. The complaint, filed by Washington County, sought $3.4 million. While Johnson City passed a liquor-by-the-drink referendum in 1980, the county never passed a similar measure, making it ineligible for the tax collections.
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Visitation Today, Services Tomorrow for Nashville Attorney

Nashville lawyer Thaddeus Earl Watkins died on Nov. 19. He was 60. Born in Memphis, Watkins earned his law degree from the University of Memphis Cecil C. Humphreys School of Law. During his 30-year career as an attorney for the State of Tennessee, he served as counsel for the State Fire Marshall’s Office, the State Board of Architectural and Engineering Examiners, the Tennessee State Capitol Commission and the Department of Commerce and Insurance before being appointed to the Tennessee Department of General Services. Visitation will be held tonight from 5 to 7 p.m. at Marshall Donnelly Combs Funeral Home, 201 25th Ave N. A second visitation will be held tomorrow at 10 a.m., with services to follow at 11 a.m. at Christ Church Cathedral, 900 Broadway. In lieu of flowers, please make donations to the National Alliance for the Mentally Ill (NAMI) or a charity of choice.
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State Government Attorneys' Conference 2017

The State Government Attorneys' Conference will be held at the Tennessee Bar Center on Nov. 17. Conflicts of interest, updates from the hill and process of termination in connection to protecting your agency are addressed in this year's program. Lunch will be provided, allowing for networking. If you are interested in more topics, the Administrative Law Annual Forum will be held in the morning. 
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TBA Administrative Law Section to Host Annual Forum

A CLE on Administrative Law will be held at the Tennessee Bar Center on Nov. 17. Topics will include administrative hearings, negotiations and best practices. Attend and find out how to maintain regular and positive working relationships with statewide and local officeholders. Lunch will be provided, allowing for networking. If you are interested in more topics, the State Government Attorneys' Conference 2017 will be held in the afternoon. 
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Knoxville Lawyer Named Federal Administrative Law Judge

Knoxville attorney Benjamin Burton has been selected to serve as an administrative law judge with the Social Security Administration. He will serve at the Office of Disability Adjudication and Review in St. Louis. Burton worked for the Social Security Administration prior to entering private practice and is one of only 61 Board Certified Social Security Trial Specialists nationwide.
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Court Addresses TEAM Act

In 2012, the Tennessee General Assembly adopted the Tennessee Excellence, Accountability, and Management Act of 2012 (TEAM Act), which comprehensively addressed the hiring and termination of state employees. The TEAM Act replaced the prior Civil Service Act. The TEAM Act established two categories of state employees, executive service employees and preferred service employees. The Tennessee Supreme Court today has determined that the TEAM Act does not create a protected property interest for preferred service employees for continued employment in their positions and that preferred service employees challenging a dismissal bear the burden of proof during the appeals process.

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County Officials Hope for AOC Court Security Grant

At least two counties plan to apply for grants from the Administrative Office of the Courts to make improvements to courtroom security. Coffee County Justice Center, Coffee County Sheriff’s department is applying for a state court security grant to be used for installing a keycard system, ballistic glass panels and doors, according to Capt. Frank Watkins with the sheriff’s department, The Manchester Times reports. Putnam County officials are also hoping to be chosen for a grant, according to the Herald-Citizen. "Recent well-publicized security breaches in other courts in our state have lent particular urgency to these issues," Circuit Judge Amy Hollars said in a letter to county commissioners. The county commission Monday will consider approval for the court to submit a grant to purchase a new metal detector and additional security cameras for areas of the justice center that currently lack coverage. Learn more about the AOC's grant program. Applications will be accepted until Oct. 16.

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Government Lawyers Report Increased Pressures, Retirements

A recent survey shows that 67 percent of government lawyers say that scarce resources and tight budgets are adding pressure to their workloads. And 76 percent of the government lawyers surveyed in the Thomson Reuters study expect their workloads to increase in the next few years. The survey projects that nearly 50 percent of the full state and local government workforce will be eligible for retirement by 2019, and that about a third of all federal workers are eligible for retirement this year. The ABA Journal has more.

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Dunford: No Immediate Ban on Transgender People in Military

The chairman of the Joint Chiefs of Staff says in a memo that there won’t be any immediate change in the policy regarding people who are transgender serving in the military, the ABA Journal reports. Gen. Joseph Dunford said the policy won’t change until the military receives President Donald Trump’s direction to change it and the military issues “implementation guidance.” Trump tweeted Wednesday morning that transgender people will not be allowed to serve in the military in any capacity. A policy adopted last year allowed transgender recruits to enlist or be commissioned in the officer corps by July 1.

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Item of Interest

Below is an article that was published in the the Disability Section Connect. We thought it had information that would be of interest to those of you in this section as well.  

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Middle Tennessee U.S. Attorney Secures $2.7 Million False Claims Settlement

The acting U.S. attorney for the Middle District of Tennessee reached a settlement with Innovative Therapies and its parent company, Cardinal Health, in a $2.7 million False Claims Act case, the Nashville Post reports. The company was accused by a whistleblower of marketing and billing a product as “durable medical equipment,” even though the product did not meet standards for a durable device. The whistleblower in the case will receive $488,700 under the terms of the False Claims Act.
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