The Michigan Supreme Court’s recent opinion in Whitman v City of Burton holds that the elements of a statutory cause of action must be discerned from the statute itself, not from dicta in judicial opinions. Thus, the Court of Appeals erred in Whitman by requiring an altruistic motive for a whistleblower’s claim even though the Michigan Legislature did not embody this requirement in the Michigan Whistleblower’s Protection Act itself.
The case arose out of Bruce Whitman’s employment with the City of Burton police. Facing citywide financial difficulties, Mayor Charles Smiley memorialized a “gentlemen’s agreement” that he had made with the department heads to forgo payments of unused sick, personal and vacation time. But the city had an ordinance allowing annual compensation for unused days. Shortly after Mayor Smiley issued his memo, Whitman sent a written objection to the “gentleman’s agreement.” He continued to accrue unused time and wrote numerous letters demanding compensation under the city ordinance. Finally, the city authorized payment for all unused days to officers who had requested it—including Whitman.
Mayor Smiley declined to reappoint Whitman after his 2007 reelection and, not surprisingly, Whitman concluded that his “whistleblowing” activities were the cause. The outcome of Whitman’s lawsuit is discussed after the break.
Whitman sued the City and the Mayor under the whistleblowers’ act. At trial, the jury found that Whitman had engaged in protected conduct, and that this conduct made a difference in the Mayor’s decision not to reappoint Whitman as police chief. The Court of Appeals reversed, holding that Whitman’s claim was not actionable under the Act because “in threatening to inform the city council or prosecute the mayor for a violation of [the] [o]rdinance, [Whitman] clearly intended to advance his own financial interests.” The Court of Appeals based its holding on its belief that whether the employee acted in good faith and with a desire to inform the public on matters of public concern are critical inquiries to the validity of a whistleblower’s claim.
The Michigan Supreme Court, in an opinion authored by Justice Mary Beth Kelly, reversed the Court of Appeals. It held that nothing in the statutory language of the whistleblower’s act addresses the employee’s motivation for engaging in protected conduct or mandates that the employee’s primary motivation must be a desire to inform the public on matters of public concern. The Court noted that the Court of Appeals erred in relying on dicta in Shallal v Catholic Social Services of Wayne Countybecause, in Shallal, the plaintiff’s whistleblower’s claim was invalid because she waited to threaten to report a violation of her superior (which still constituted protected conduct) until after she was notified that her employment would be terminated. In other words, she used the whistleblower’s act as a shield against pending adverse employment action. It did not follow that the whistleblower’s act imposes a broad requirement of altruism — for, indeed, nothing in the Act states so.
Neither Justice McCormack nor Justice Viviano participated in Whitman.