MSC will revisit motivation issue in whistleblower claim

The Michigan Supreme Court will decide whether claims filed under the Whistleblower Protection Act rise or fall depending on what motivated the suit — the “desire to inform the public about matters of public concern” or “personal vindictiveness.”

In the process, the MSC will take a second look at a 15-year-old precedent, Shallal v. Catholic Social Services of Wayne Co., 455 Mich. 604 (1997).

The case under review is the Michigan Court of Appeals decision in Whitman v. City of Burton, et al. (majority opinion) (dissent)

In 2007, the city of Burton declined to reappoint Bruce Whitman as police chief. The city provided a laundry list of reasons for the decision: morale problems in the police department; inadequate discipline of officers; misuse of department email; playing favorites; not responding to a police harassment complaint; and providing the city council with misleading budget reports.

Whitman claimed something else was going on. Three years earlier, he had asserted his rights under a city ordinance to be paid for unused leave time. He did so despite an informal agreement, memorialized in a memo from the mayor, that city administrators would use leave time during the year rather than accummulating it. When the city balked at Whitman’s demand to be paid, he threatened criminal action. The city relented and cut a check for $6,984.

Following his non-reappointment, Whitman sued the city under the Whistleblowers’ Protection Act (WPA), MCL 15.361 et seq. The jury found for Whitman. The trial court denied the city’s motion for judgment NOV.

In a split decision, the Court of Appeals reversed. Judge Henry Saad, joined by Judge Peter O’Connell, ruled that Whitman’s claim was “not actionable.”

In demanding payment under the ordinance for his sick and personal hours — a payment the cash-strapped city could ill-afford — plaintiff was decidedly not acting in the public interest, but in the thoroughly personal and private interest of securing a monetary benefit in order to maintain his “life style.”

Plaintiff’s claim is not actionable under the WPA because his complaint amounted to a private dispute over plaintiff’s entitlement to a monetary employment benefit. Moreover, plaintiff acted entirely on his own behalf. Indeed, nowhere in the voluminous record “is there any indication that good faith or the interests of society as a whole played any part in plaintiff’s [threatened] decision to go to the authorities.” …

To the contrary, plaintiff asserted his own entitlement to payment and he dropped his threat of legal action when he received his money. Under these facts, no reasonable juror could conclude that plaintiff threatened to prosecute defendants “out of an altruistic motive of protecting the public.” Shallal v Catholic Social Services of Wayne Co, 455 Mich 604, 622; 566 NW2d 571 (1997).

Judge Jane Beckering dissented. Beckering said that in Shallal, the plaintiff knew about the employer’s alleged violations of the law for several years and threatened to make a report only after job security issues arose. Whitman’s situation is different, Beckering argued.

[A]lthough plaintiff had personal reasons for desiring Ordinance 68C to be enforced, i.e., his own financial status, a reasonable juror could have concluded that he also acted as an officer of the law attempting to have the ordinance enforced as written, which was in the public interest. Plaintiff did not use the WPA as a tool to extort the city. Accordingly, I would hold that plaintiff was not barred from recovering under the WPA.

Last week, on a 7-0 vote, the MSC agreed to review whether Shallal “correctly held that the primary motivation of an employee pursuing a whistleblower claim must be a desire to inform the public on matters of public concern, as opposed to personal vindictiveness.”