Tuesday, May 7, 2013

Interesting Whistleblower Decision from Michigan Supreme Court

WhistleThanks to Sam Bagenstos (Michigan) for passing on this recent whistleblower decision, Whitman v. City of Burton, from the Michigan Supreme Court.

Here is the summary from Justia.com (opinion also included at this link):

Plaintiff Bruce Whitman had been employed by defendant City of Burton as the police chief from 2002    until 2007. Codefendant Charles Smiley, the Mayor, declined to reappoint plaintiff. Plaintiff then filed suit under the [Michigan] Whistleblowers' Protection Act (WPA), alleging that he was not reappointed because he had threatened to pursue criminal charges against the mayor if the city did not comply with a city ordinance and pay him for unused sick, personal and vacation time he accumulated in 2003. Defendants contended that plaintiff had agreed to forgo any payout for accumulated leave in order to avoid a severe budgetary shortfall and that plaintiff was not reappointed because the mayor was dissatisfied with plaintiff's performance as police chief. A jury returned a verdict in favor of plaintiff; the trial court denied defendants' motion for judgment notwithstanding the verdict or a new trial. Defendants then appealed. The Court of Appeals reversed, concluding that plaintiff's claim was not actionable under the WPA because he had acted to advance his own financial interests and not out of an altruistic motive of protecting the public. Upon review, the Supreme Court concluded that nothing in the WPA's language addressed an employee's motivation for engaging in protected conduct, nor did any language mandate that the employee's primary motivation for pursuing a claim under the Act be a desire to inform the public of matters of public concern. Accordingly, the Court reversed the appellate court and remanded the case for consideration of remaining issues on which that court did not formally rule, including whether the causation element of the WPA had been met.

This is an interesting ruling, especially since the Michigan WPA seems to diverge from the federal WPA as far as what is considered protected activity.  I may be wrong on this point and I'll let other experts, like Richard Moberly, weigh in. 

Also, I do not know enough about the Michigan WPA to know whether this interpretation jibes with something peculiar in the way this state law is written, or whether this provision exists in many states and is similar to the federal law.  If the latter, this decision could be persuasive authority for other states and as far as the federal law. 

One additional thought.  Interesting that the plaintiff decided not to file a First Amendment claim.  Just speculation, but perhaps the attorney thought this would be considered official capacity conduct under Garcetti or not a matter of public concern under Connick.  Regardless, given all the hurdles a plaintiff must negotiate to win a public employee First Amendment claim, clearly his counsel made the right call in focusing on the state WPA law.



Employment Discrimination, Public Employment Law | Permalink

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I believe that courts examined the employee's motive under the original Whistleblower Protection Act, although many advocates believed that interpretation was improper. However, under the recently passed Whistleblower Protection Enhancement Act of 2012, the law now clearly states that a disclosure will not be excluded from protection because of "the employee's ... motive for making the disclosure." See Section 101 of WPEA, amending 5 USC 2302.

Posted by: Richard Moberly | May 13, 2013 8:08:57 AM

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