Say you’re a policeman in a Kentucky city and you know your chief is taking bribes.
If you’re thinking about reporting the crime, start looking for a new job, because you can’t expect any protection under Kentucky’s Whistleblower Act.
Last Thursday, without anyone in the media really noticing, the Supreme Court of Kentucky ruled the Whistleblower Act doesn’t cover city workers, only state employees.
In the case, Charles L. Wilson, Jr. v. City of Central City, Ky., the state supreme court ruled the legislative history of Kentucky’s 1986 Whistleblower Act shows “a deliberate intetion by the General Assembly to exclude cities from its prohibitions.” (Emphasis theirs.)
That is, legislators never intended Kentucky’s Whistleblower Act to cover city workers, only state workers.
It’s a finding that “goverment defendants, city defendants have been trying to get through for a number of years,” said Daniel Canon, the Louisvile-based attorney who has handled a number of high-profile constitutional cases.
Canon calls the Wilson v. City ruling “a disaster. A complete and unfettered disaster.”
The ruling means that a city employee who reports a co-worker or supervisor for violating the law “and they’re subject to termination, there is no recourse whatsoever,” he said.
What’s not clear is whether this applies to Louisville and Lexington, cities long merged with their respective county governments, Canon said: “We’ll have to wait awhile for a ruling on that.”
What is clear, he added, is that employees in 4th Class and 5th Class cities such as Lynview and Indian Hills in Jefferson County are not protected from retaliation should they expose wrong-doing.
“A police officer reports to the Department of Justice that his chief is taking bribes, then (the officer) is fired – (the officer) can’t do anything about that,” Canon said.
There are at least 300 incorporated “cities” in Kentucky’s 120 counties.
Canon said Wilson V. City in tandem with a 2006 U.S. Supreme Court ruling, Garcetti v. Ceballos, restricts government officials’ ability to report wrongdoing while being protected from governmental retaliation.
In Garcetti, the U.S. Supreme Court ruled that a district attorney battling illegal police warrants was not protected by the First Amendment because his statements were made as a public employee, rather than as a private citizen.
Wilson v. City began with former Central City Water Works employee Charles L. Wilson, Jr. suing the city, claiming he was fired as a whistleblower for reporting safety violations by the city’s water works. But an appelate court seized on the the language of the Whistleblower Act itself.
In 14 pages of semantical gymnastics (we are talking about seven attorneys here) the SCoKY argued:
On its face, the Whistleblower Act applies only to “the Commonwealth of Kentucky or any of its political subdivisions,” and persons “authorized to act on behalf of the Commonwealth, or any of its political subdivisions ….”
Although “political subdivisions” is not defined, the Act makes no reference to “cities,” “municipalities,” or “municipal corporations.” We start with the assumption that had the legislature intended the Whistleblower Act to apply broadly to municipalities, it would have explicity included them in their defintion of “employer.”
But Canon calls it “a feat of legal contortion that someone in the line of duty – a policeman – carrying out the law simply because he works for the city and does not get his paycheck from the state, would not be afforded any protections from the state. It’s mindboggling.”
The Whistleblower Act states “an employer”:
Can not subject to reprisal, threat to use authority, or influence in any manner, against any person who supports, aids, or substantiates a report or an employee who in good faith reports, discloses, divulges any facts, or information relative to an actual or suspected violation of any law, statute, executive order, administrative regulation, mandate, rule or ordinance, mismanagement, fraud, waste, abuse of authority or substantial and specific danger to public health or safety.
Can not discharge or discriminate if employee or representative files a complaint, institutes a proceeding or testifies regarding a violation of any occupational safety or health statute that threatens physical harm and imminent danger.