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A Better Partnership
July 14, 2015

COA - WPA plaintiffs must be a current employee and are obligated to prove their whistleblowing objectively advances the public interest

In Whitman v. City of Burton, No. 294703, the Michigan Court of Appeals considered for the third time the case of Bruce Whitman, a former police chief of the City of Burton, and once again held that Mr. Whitman was not entitled to protection under the Whistleblower Protection Act (“WPA”). The Court determined that Mr. Whitman was not a current employee, nor did his whistleblowing objectively advance the public’s interest, and therefore he was not entitled to WPA protection.
 
Whitman had sued the City and Mayor of Burton under the WPA, alleging the Mayor dismissed him after he objected to the City denying him unused sick-leave pay.  He claimed that the mayor’s decision not to reappoint him as police chief was because he repeatedly complained about the City’s refusal to pay his accumulated unused sick-leave time in violation of a City ordinance.  Below, the trial court had denied the City’s motion for judgment notwithstanding the verdict.  In its initial opinion, the Court of Appeals reversed because a WPA claim could not arise from “entirely personal and selfish” motives.   The Michigan Supreme Court reversed, holding that a WPA plaintiff’s motives are irrelevant.  The Supreme Court then remanded the case to allow the Court of Appeals to address all the remaining issues.
 
As noted in our April 2014 blog post, the Court of Appeals decided that because Whitman’s actions did not objectively advance the public interest, he was not entitled to the WPA, in accordance with the Supreme Court’s ruling in Shallal v. Catholic School Services of Wayne Co., 455 Mich. 604; 566 N.W.2d 571 (1997). Shortly thereafter the Michigan Supreme Court decided Wurtz v. Beecher Metro Dist., 495 Mich. 242; 848 N.W.2d 121 (2014), which held that a plaintiff under the WPA had to be a current employee to gain its protections. The Supreme Court vacated the Court of Appeals’ 2014 opinion and ordered that the Court of Appeals consider not only whether Whitman was acting in the public interest, but also whether he was a current employee.
 
In its third consideration, the Court of Appeals answered both questions in the negative. It first held that Whitman was not a current employee as his term as police chief was over, and the mayor of the City merely chose not to reappoint him. This, the Court held, was well within the discretion of the mayor. Thus, under the WPA, Whitman was not an employee and was not protected by the WPA.
 
The Court then again held that the actions Whitman sought to gain protection from did not objectively advance the public interest. The Court, in fact, noted that Whitman’s actions were opposed to the public interest. The Court reasoned that Whitman was seeking unused sick pay, despite the remainder of City officials agreeing not to take such pay as the City was having financial issues. Whitman’s reporting, the Court determined, clearly did not advance the public interest.
 
The Court also noted that despite Whitman’s assertions, there was no causal link between him asserting that he deserved his unpaid sick time and the Mayor failing to reappoint him. In fact, the Court stated, (1) several years had passed since his alleged “whistleblowing,” (2) he had been reappointed several times since then, and (3) Whitman had also engaged in poor behavior that likely led to his job loss.
 
Thus, the Court held in favor of the City and upheld that trial court’s judgment notwithstanding the verdict.  
 
Judge Beckering dissented.  She would have held that Whitman’s employment was distinguishable from that at issue in Wurtz.  She also believed that the majority engrafted a non-statutory requirement onto the WPA, namely, that the plaintiff must prove that the law or regulation at issue advanced the public interests.  She also adopted her previous dissents.

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