Whitman v. City of Burton
| Decision Date | 24 April 2014 |
| Docket Number | Docket No. 294703. |
| Citation | 305 Mich.App. 16,850 N.W.2d 621 |
| Parties | WHITMAN v. City of BURTON (ON REMAND). |
| Court | Court of Appeal of Michigan — District of US |
OPINION TEXT STARTS HERE
Tom R. Pabst, Michael A. Kowalkoi and Jarrett M. Pabst, for plaintiff.
Plunkett Cooney, Detroit (by Ernest R. Bazzana), for defendant.
Before: O'CONNELL, P.J., and SAAD and BECKERING, JJ.
ON REMAND
In this Whistleblowers' Protection Act (WPA) 2 claim, our 2011 opinion 3 reversed the jury award in plaintiff's favor. We held that the Michigan Supreme Court's decision in Shallal v. Catholic Social Servs. of Wayne Co.4 barred plaintiff from claiming protection under the WPA, because he admitted that his motivation for asserting entitlement to accumulated, unused sick-leave pay under a city ordinance was entirely personal and selfish.5 We reasoned that, under Shallal, plaintiff's private motivations for asserting defendants' noncompliance with the city ordinance disqualified him from WPA protections, because he did not act as a “whistleblower” under the meaning of the WPA.
The Michigan Supreme Court reversed, and “disavowed” what we thought was the principle articulated in Shallal on the relevance of plaintiff's private motivations.6 Instead, it held that plaintiff's private motivations for “blowing the whistle” are irrelevant,7 and stated that plaintiff's conduct constituted protected activity under the WPA.8 What we and the Michigan Supreme Court did not address—and what we must now analyze 9—is whether plaintiff's actions or conduct, as an objective matter, must advance the public interest in order to entitle plaintiff to the protection of the WPA.10 Because the WPA protects those who protect the public interest by blowing the whistle on illegality, and laws in general are an expression of public policy for the benefit of the public, there is typically no question that reporting a violation of law advances the public interest. But this is not always true, and is certainly not true here.
In this case, plaintiff's actions are unquestionably and objectively contrary to the public interest. That is, regardless of his personal motivations (now irrelevant), his “whistleblowing” effort sought enforcement of a law that harmed, not advanced, the public interest.
The law in question, Burton Ordinances 68–C, is not a law that protects the public interest, but rather an ordinance that reads much like a standard, garden-variety collective-bargaining provision for wages and benefits. 11 It is simply a recitation that sets forth the wages and benefits for administrative, nonunionized employees of the city of Burton. Normally, an employee must use sick days or vacation days, or lose them. But under some collective-bargaining agreements and employment policies, employees may “accumulate” these days and then get paid for all such days not used. This perk is generally found in collective-bargaining agreements for unionized employees. But here, this benefit—along with a statement of wages and matters like dental insurance—were codified in 68–C.
The waiver of the benefits contained in 68–C—which plaintiff characterizes as a “violation of law”—has its origins in a severe financial crisis that afflicted the city of Burton in the earlier 2000s.12 During this period, the city's department heads—who obviously benefited from 68–C—voted as a group, not only to take a wage freeze, but to forgo the perks contained in the ordinance to avoid harmful layoffs and reduced services to the public. 13 In other words, the administrative team's waiver of the perks contained in the ordinance was an illustration of shared sacrifice by the nonunionized department heads to advance the public interest of the residents of Burton at their own expense.14
Only one department head objected to this waiver of perks: plaintiff, who was then the chief of police.15 He demanded his money as provided for in the ordinance,16 which he received after the mayor acted on the advice of outside legal counsel. This is the “law” plaintiff uses to assert a claim under the WPA.
The WPA is designed to ferret out violations of the law that injure the public, especially when applied to public-sector defendants.17 If government officials, who are bound to serve the public, violate laws designed to protect the public from corruption, pollution, and the like, then employees who, at their own risk, blow the whistle on such illegality necessarily serve the public interest—which is precisely why the WPA grants such employees protection from reprisal. Yet, where the ordinance in question, as here, is not an ordinance intended to protect the public, but rather is a simple listing of wages, benefits, and various perks—and the very public servants who benefit financially from the ordinance make a personal sacrifice and waive their right to these perks to save the public badly needed funds and to prevent layoffs and reduced public services—then any action contrary to the waiver is contrary to the public interest. Again: the waiver of the perks set forth in the ordinance at issue advances the public interest. Opposition to that waiver—on which plaintiff bases his suit—harms the public interest.
In addition, whistleblowing assumes that an employee takes a risk of retaliation for uncovering the public employer's misconduct. Here, there simply was no misconduct or illegality. The only conduct of the city employees that implicated 68–C was the department heads' decision to waive the perks contained in the ordinance, and plaintiff's refusal to honor that waiver. This is an insistence by an employee, plain and simple, to get his perks—not an uncovering of corruption or illegality. And this disagreement about the legal effects of the waiver was satisfied, in plaintiff's favor, after the city sought legal counsel. Accordingly, plaintiff's citation of the ordinance was not whistleblowing. It simply involved a disagreement regarding the proper interpretation of the city's labor laws: whether the administrative team could waive the perks under 68–C, and whether plaintiff was bound by the group's waiver. It has nothing to do with whistleblowing whatsoever.
This is why this is not the usual case, where a report of a violation of law normally constitutes conduct in the public interest.18 Here, to the contrary, plaintiff's actions—as an objective matter—were undoubtedly against the public interest. And the city did not actually “violate” any law in the sense that “violations of law” have been traditionally understood in whistleblowing lawsuits—i.e., revealing public corruption or malfeasance. It simply refused (at first) to grant plaintiff a monetary perk that he demanded. Plaintiff may or may not have been entitled to his perks, but he most certainly is not entitled to claim the protection of the WPA, when his conduct objectively serves his interest, but harms the public's.
Because he is not a “whistleblower” under the WPA, no juror could legally find in favor of plaintiff on his WPA retaliation claim. The trial court's denial of defendants' request for JNOV is accordingly reversed.
We also held in our earlier opinion that plaintiff's alleged whistleblower activity from late 2003 to early 2004 was not the legal cause of the mayor's decision to not reappoint plaintiff as police chief in late 2007.20 Upon closer examination of the facts pertinent to the causation issue, we are even more convinced that plaintiff's alleged whistleblower activity lacks a causal link to the mayor's decision. We so hold for several reasons.
As noted, in 2003, the mayor's administrative team voted to voluntarily take a wage freeze and forgo the perk of payment for accumulated sick days to save taxpayers' money and avoid layoffs and reduced services.21 This sacrifice spoke well of the mayor and his department heads. Plaintiff's refusal to abide by the department heads' agreement, and subject himself to the same sacrifice, raised issues of trust and caused the mayor to rightly be disappointed in plaintiff. Indeed, plaintiff's “evidence” of a causal connection between his “whistleblowing” and the mayor's decision to not reappoint him, many years later, frames the issue in exactly this context.
A third party who attended plaintiff's June 2004 meeting with the mayor made handwritten notes of the discussion, which state: “ ‘ Mayor—No Trust—68–C (vacation)—lack of communication[.]’ ” 22 And the mayor's alleged December 2007 statement to other senior police officers that he and plaintiff “ ‘got off on the wrong foot’ ” 23—a statement that, if made, occurred after the mayor decided not to reappoint plaintiff 24—supposedly showed that he considered plaintiff's 68–C complaints as presenting an issue of trust, in that plaintiff's failure to adhere to a voluntary agreement with his colleagues showed a betrayal of trust. In sum, it appears the mayor viewed the 68–C issue not in the context of whistleblowing, or anger at plaintiff's supposed whistleblowing, but instead as presenting an example of how plaintiff was untrustworthy. As noted, this is not a case where a “violation of law” was even remotely an issue. And it is, at best, extremely unlikely that even this “lack of trust” over plaintiff's failure to honor an agreement on this specific occasion had anything to do with the subsequent decision to not reappoint him, for the numerous reasons discussed later in this opinion.
Plaintiff's claim has a serious temporal problem: he alleges that he was not reappointed in late 2007 for events that took place in late 2003 and early 2004. Our courts have taken pains to stress that the length of time between an alleged whistleblowing and an adverse employment action is not dispositive of retaliation—when those two events are close in time (i.e., days, weeks, or a few...
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