Earlier this month, the Mahoning County Court of Appeals reversed the dismissal of an attorney whistleblower complaint by the State Personnel Board of Review. Desmond v. Mahoning Cty. Pros. Office, 2019-Ohio-4089. The complaining attorney had been fired more than two months after being ordered to submit a memorandum detailing his prior allegations against a co-worker which he had failed to previously raise with his superiors and had already been the subject of a threatened lawsuit, but had shared with the attorney of an adverse party who drafted the lawsuit’s complaint. The Court summarized that: “R.C. 124.341 contains no time frame for making a report, it contains no requirement that a supervisor be unaware of the conduct reported, and it does not specify that the protections of the statute will be lost if an employee is directed by his employer to make a report. We also find that R.C. 124.341 does not except from whistleblower protection reports of attorney misconduct under the Ohio Rules of Professional Conduct.”
According to the Court’s opinion, the complainant discovered that a co-worker who had taken over one of his cases was engaging in unprofessional behavior by, among other things, pursuing an indictment against a material witness for refusing to testify against an alleged murderer by invoking his fifth amendment privilege and by misrepresenting to the judge the witness’s stated intent to flee the state if released after the indictment was dismissed in order to keep that witness in jail. Instead of sharing his concerns with management, he shared them with the witness’s attorney, who ultimately filed a complaint with civil rights charges and provided it to the employer. He later texted his supervisor that the co-worker had mishandled the case and was directed to prepare a memorandum detailing his knowledge and concerns for the ongoing investigation into the allegations against the co-worker. Despite agreeing to do so promptly, he required a reminder weeks later and a direct order more than a month later before he finally submitted the memorandum. He was fired more than two months after that for, among other things, becoming an adverse witness to the employer through his communications to the witness’s attorney, failing to bring the concerns to management earlier and making false allegations against the co-worker, etc. He appealed his termination to the SPBR, which dismissed for lack of jurisdiction on the grounds that his actions did not constitute protected whistleblowing under the statute. The Court reversed.
The Court agreed that the complainant’s text messages -- alleging that his co-worker “mishandled” the case and that some of the allegations against her were true – were not covered by the whistleblower statute because they were too ambiguous and did not allege illegal conduct. However, the memorandum which he submitted was covered by the statute even though (1) he was ordered to submit it for face disciplinary action for insubordination and (2) covered issues of attorney professional conduct. There is no exception in the statute for violations of the Rules of Professional Responsibility. Further, the memorandum also implicated violations of federal civil rights laws and other prosecutorial misconduct.
In addition, the Court determined that good faith was not absent merely because the complainant had been ordered to submit the memorandum to his employer which already knew the underlying allegations and was already investigating them.
Turning to the good-faith requirement adopted by SPBR, R.C. 124.341 contains no express “good faith” requirement, except to the extent that it requires the employee “to make a reasonable effort to determine the accuracy of any information reported * * *.” R.C. 124.341(C). It provides no time frame for making a report, it contains no requirement that a supervisor be unaware of the conduct reported, and it does not specify that the protections of the statute will be lost if an employee is directed by his employer to make a report. It was, therefore, not appropriate to deny jurisdiction on this basis.
Indeed, a whistleblower does not loose statutory protection merely because the covered written report was a mandatory duty as opposed to an independent offer. Analogizing the situation to a sexual harassment complaint under Title VII as discussed in Crawford v. Metropolitan Govt. of Nashville & Davidson Cty., Tenn., 555 U.S. 271, 277–78, 129 S.Ct. 846, 172 L.Ed.2d 650 (2009) :
The court concluded that “nothing in the statute requires a freakish rule protecting an employee who reports discrimination on her own initiative but not one who reports the same discrimination in the same words when her boss asks a question.” Id. at 851. We agree with this reasoning. And we further emphasize, again, that if the legislature intended to protect only employees who identify violations independently—and not on the command of their employer—it could have expressly stated this in the statute.
NOTICE: This summary is designed merely to inform and alert you of recent legal developments. It does not constitute legal advice and does not apply to any particular situation because different facts could lead to different results. Information here can change or be amended without notice. Readers should not act upon this information without legal advice. If you have any questions about anything you have read, you should consult with or retain an employment attorney.
