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143475 - Whitman v City of Burton

Bruce Whitman,
Tom R. Pabst
Plaintiff-Appellant/Cross Appellee,
(Appeal from Ct of Appeals)
(Genesee-Neithercut, G.)
City of Burton and Charles Smiley
   Ernest R. Bazzana
Defendant-Appellees/Cross Appellants.


In the spring of 2003, the city of Burton suspended its policy, spelled out in city Ordinance 68-C, of paying its non-elected officers for unused sick, personal, and vacation days. City department heads agreed to the change as part of an attempt to deal with the city’s budget shortfall. However, the ordinance was not amended to reflect this change.
In a March 20, 2003 letter to Mayor Charles Smiley, Police Chief Bruce Whitman complained about the change, saying in part, “My current life style revolves around these very things that have been negotiated for me and in some cases protected several times over through binding arbitration (pension). My family looks forward to the financial benefits I receive by not missing time from work.” Whitman did not state in that letter that he would refuse to comply with the agreement, nor did he state that the agreement violated Ordinance 68-C. At an April 24 budget meeting, the city treasurer referred to the wage freeze and the vacation pay suspension agreement, without objection from Whitman or others at the meeting.
In a January 9, 2004 letter to Smiley, Whitman demanded payment of his unused sick and vacation days under Ordinance 68-C, adding that “To ignore issues specified in that ordinance would be a direct overt violation of that ordinance and I fully intend to address the violation should it occur.” In a January 15 letter to city administrative officer Dennis Lowthian, Whitman stated, “I cannot allow them to violate the ordinance by ‘forcing waivers’ of ordinance[-]given rights. I believe it is my job as a police officer to point the violation out and I will pursue it as far as it needs to go.” In a letter dated January 23, Whitman advised the city attorney that he considered the city’s failure to pay him for unused sick and vacation days a violation of Ordinance 68-C. He added, “I told the mayor on the 12th [of January 2004] it was an ordinance violation … If I need to re address through the council I will … or I will be forced to pursue this as a violation of the law and will address it as such.” On the city attorney’s advice, Smiley had Whitman paid $6,984 for his unused leave time.
In March 2004, Smiley and the city treasurer, Brad Becker, were planning the city’s budget, which included laying off three police officers. Shortly thereafter, Becker died; after attending Becker’s funeral, Smiley went to a local bar with his son where he consumed several beers. When Smiley decided to leave the bar at about 1:30 a.m., the bar owner offered to drive Smiley home. Meanwhile, three Burton police officers had been near the bar for several hours waiting for Smiley to leave. The officers stopped Smiley’s vehicle, which the bar owner was driving; a breathalyzer test proved that the driver was not intoxicated. Nevertheless, the incident received public attention. Although Whitman’s internal investigation determined that the officers had violated departmental policies and that some of the officers had been dishonest in the investigation, the officers received little or no discipline.
On June 7, 2004, Smiley sent Whitman a memo, stating that he was considering removing the police chief from office; the two met later that day, accompanied by another mayoral appointee, Mark Udell. According to Smiley, he had received numerous complaints about Whitman from police officers, including low morale in the department; Smiley also criticized Whitman’s alleged lack of communication. While Smiley later testified at trial that the leave payment issue was discussed in the context of Smiley’s inability to trust plaintiff, Whitman testified that Smiley angrily pointed his finger in Whitman’s face and yelled, “You threatened to have me prosecuted over the 68-C vacation pay issue.” According to Smiley, the meeting ended amicably with both Smiley and Whitman agreeing to put the past behind them and to move forward. After this meeting, Smiley did not discuss Ordinance 68-C with Whitman.
Following the November 2007 election, Smiley directed department heads to submit their resumes if they wanted to be reappointed. Shortly thereafter, two police officers asked for a meeting with Smiley, telling him about a number of incidents that reflected poorly on Whitman. At this meeting, Smiley learned for the first time about an August 2007 off-duty shooting involving an intoxicated Burton police officer; Whitman had not told Smiley about the incident, but had allowed the officer to retire without an investigation or punishment. Among the other allegations: Whitman assigned a probationary police officer to active service, although her trainers and superior officers recommended that she be fired; Whitman failed to investigate an alleged misdemeanor offense committed by a Flint police officer, then asked one of his lieutenants to lie about the investigation’s status; Whitman asked the same lieutenant to lie about the reasons an officer candidate was not hired; Whitman had issued a retirement badge to a former officer, who was not eligible because he had not served the requisite number of years; Whitman made a misleading budget report to the city council. Whitman also later admitted that he exchanged sexually explicit e-mails with several women, none of whom was his wife, during working hours and over a long period of time.
On November 27, 2007, Smiley notified Whitman in writing that he would not be reappointing him to the chief’s position. Smiley told the news media that he wanted the police department to go in a new direction and to be more disciplined. Smiley said he did not want to make public his real reasons for not reappointing Whitman to avoid embarrassment to Whitman and to the police department. Whitman later claimed that, at a meeting with police lieutenants and sergeants, Smiley stated that the reason Whitman was not reappointed was because of his threat to prosecute Smiley over the Ordinance 68-C issue. Other witnesses who attended that meeting would later testify that Smiley brought up the issue only to illustrate Smiley’s distrust of Whitman, Whitman’s failure to communicate openly, and as an incident that got their relationship off to a rocky start.
In February 2008, Whitman sued Smiley and the city under the Whistleblowers’ Protection Act. Section 2 of the WPA, MCL 15.362, states: “An employer shall not discharge, threaten, or otherwise discriminate against an employee regarding the employee's compensation, terms, conditions, location, or privileges of employment because the employee, or a person acting on behalf of the employee, reports or is about to report, verbally or in writing, a violation or a suspected violation of a law or regulation or rule promulgated pursuant to law of this state, a political subdivision of this state, or the United States to a public body, unless the employee knows that the report is false, or because an employee is requested by a public body to participate in an investigation, hearing, or inquiry held by that public body, or a court action.” To establish a prima facie case under the WPA, a plaintiff must show that (1) the plaintiff was engaged in protected activity as defined by the act, (2) the plaintiff was discharged or discriminated against, and (3) there is a causal connection between the plaintiff engaging in the protected activity and the discharge or adverse employment action. Whitman claimed that, when he notified the defendants that he intended to pursue criminal charges if he was not paid for his unused 2003 leave time, he was engaged in a “protected activity,” and that the defendants retaliated by not reappointing him.
On May 18, 2009, after a five-day trial, a jury returned a verdict of $228,000 in Whitman’s favor$97,000 in past economic damages, $130,000 in future economic damages, and $5,000 in non-economic damages. The defendants moved for judgment notwithstanding the verdict (JNOV) or, in the alternative, for a new trial, but the circuit court denied their motion.
But in a 2-1 published decision, the Court of Appeals reversed the circuit court. The majority declared, “We hold that, as a matter of law, plaintiff could not recover damages under the WPA for the mayor’s decision not to reappoint him because, in threatening to inform the city council or prosecute the mayor for a violation of Ordinance 68-C, plaintiff clearly intended to advance his own financial interests.” The purpose of the WPA is to protect the public, not “to be used as an offensive weapon by disgruntled employees,” said the majority, citing Shallal v Catholic Social Services of Wayne Co, 455 Mich 604 (1997). Whitman was not acting in the public interest in demanding payment for unused leave time, “but in the thoroughly personal and private interest of securing a monetary benefit in order to maintain his ‘life style,’” the majority observed. The majority noted that Whitman “dropped his threat of legal action when he received his money” and waited to assert a legal violation until after he accumulated thousands of dollars in unused leave. “Because no juror could legally find in favor of plaintiff on his claim under the WPA, we reverse the trial court’s denial of defendants’ motion for JNOV, and remand for further proceedings consistent with this opinion.” In a footnote, the majority stated that, even if Whitman could have made a case under the WPA, “there is overwhelming evidence of plaintiff’s misconduct in office that more than justified the mayor’s decision to not reappoint plaintiff as police chief.”
The dissenting judge disagreed, stating that Whitman did engage in a protected activity under the WPA by raising a violation of Ordinance 68-C: “Plaintiff believed that Smiley was committing an ordinance violation, and he reported it as such” to Smiley, the city attorney, and the city administrative officer, the dissent said. Moreover, Whitman did not act in bad faith by waiting until January 2004 to demand payment for his unused leave time, the dissent said; the judge noted that, in a January 23, 2004 letter to the city attorney, Whitman had stated that he was “in no position to take vacation time” because of staffing changes that year. Moreover, Smiley and the city council had “ample time” to address the ordinance violation, but failed to do so, the dissent observed. There was also evidence that Whitman “was acting, at least in part, in the public interest” because “plaintiff was acting in his role as a law enforcement officer to prevent or to prosecute a violation of the ordinance,” the dissent said. Moreover, it was not in the public interest for the city to balance the budget by violating a local ordinance, the dissent said.
Whitman appealed; the defendants also appealed, contending that the trial judge erred by not giving the jury an instruction that, to prevail under the WPA, an employee must have as “primary motivation” the “desire to inform the public on matters of public concern.”
In an order dated May 2, 2012, the Supreme Court granted both applications for leave to appeal. The Court directed the parties to “include among the issues to be briefed whether Shallal v Catholic Social Services of Wayne County, 455 Mich 604 (1997), 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.”