Pennyrile Allied Community Services, Inc. v. Rogers

NOBLE, J.,

DISSENTING:

Katricia Rogers frequently worked out of the office. Her supervisor, suspicious that she was not actually working at these times, went to her home during the workday and caused damage to her driveway. Rogers, believing her supervisor had illegally trespassed on her posted land, later informed him of that belief and implied to him that she would seek prosecution if he did it again. She was fired the next day. Despite these simple facts showing a color-able claim of retaliation, the majority holds that Rogers is not entitled to the protection of the so-called Whistleblower Act, KRS 61.102. I cannot join that holding and for that reason dissent.

The Act is broadly drafted to protect government employees who report perceived wrongdoing in good faith. Specifically, it protects any government employee

who in good faith reports, discloses, divulges, or otherwise brings to the attention of ... any ... appropriate body or authority, any facts or information relative to an actual or suspected violation of any law, [or] statute ... of ... the Commonwealth of Kentucky, or any of its political subdivisions, or any facts or information relative to actual or suspected mismanagement, waste, fraud, abuse of authority, or a substantial and specific danger to public health or safety.

KRS 61.102(1). Such an employee is not “subject to reprisal,” id. and the employer may not “directly or indirectly use, or threaten to use, any official authority or influence, in any manner whatsoever, which tends to discourage, restrain, depress, dissuade, deter, prevent, interfere with, coerce, or discriminate against any [such] employee,” id.

The majority disposes of Rogers’s claim that she is covered by the statute by concluding that she did not engage in the type of conduct protected by the Act (e.g., reporting or disclosing) and did not communicate with an appropriate authority (e.g., her supervisor’s boss). But to reach this conclusion, the majority has in both instances read into the Act something that is not there.

First, the majority reads the protected-conduct language to require that the employee “bring to light facts not otherwise known to the recipient.” But that is not required by the Act. That a supervisor already knows a fact does not mean that a subordinate has not reported, disclosed, or brought the fact to the supervisor’s attention when she tells the supervisor of the fact. The conduct described in the Act is that of the reporting employee; it in no way depends on the knowledge of the recipient. Indeed, if that were the case, whistleblower claims could easily be defeated by collusion between the person engaged in the bad conduct and the person to whom it is reported, with the reporter being completely innocent. Or, in a less nefarious way, whistleblower claims could be defeated if the reporter is simply not the first person to report the misconduct: the first reporter would be protected, but all others would be fair game for reprisal.

But even if the reporter had to bring information to light that was previously unknown, Rogers did so. Although her supervisor obviously knew what he had done (entering her property), he may not have been aware that it might be illegal. In fact, he told Rogers that he could go to her house to confirm that she was working *348anytime he wished to do so. Rogers replied that the entry onto her property, which had a “private property” sign, was an illegal trespass, which she believed it to be. The information brought to light whs the illegality of the conduct, not the conduct itself.

Second, the majority reads the requirement that the report of bad conduct be made to an “appropriate body or authority” to exclude reporting to the person engaged in the alleged illegal conduct. In other words, under the majority’s reading, the report must be made to a third party, such as the supervisor’s supervisor' or some other person or entity with authority over the supervisor (such as law enforcement). Although such reporting is covered by the Act, again it is not required.

The Act requires only that the report be made to an appropriate body or authority. What more direct authority can there be than the person committing the complained-of act? The supervisor was directly responsible for his own conduct, and thus is an appropriate authority. As we have held, “appropriate authority” includes “any public body or authority with the power to remedy or report the perceived misconduct.” Workforce Development Cabinet v. Gaines, 276 S.W.3d 789, 793 (Ky.2008). Just as “the most obvious public body with the power to remedy perceived misconduct is the employee’s own agency (or the larger department or cabinet),” id. at 793, the most obvious person with the power to remedy the misconduct within the agency is the alleged wrongdoer himself. Perhaps the supervisor was unaware that his conduct could be illegal. If so, then reporting it to him, rather than further up the chain of command, would allow “minor wrongdoing [to] be addressed internally,” id. a practice this Court has approved as falling within the Act’s protection id.

This case is, in many ways, similar to Gaines. There, we held that internal reporting was covered by the Act, and that a reporter was not required to contact an external entity to be protected. Id. Just as the Act’s protection extends to internal reporting, so too should it extend to directly reporting the illegality to the wrongdoer.

The majority attempts to distinguish Gaines, however, by noting that the report in that case was not made to the alleged wrongdoers but to an attorney working in the department, who then reported the matter higher up. But the reasoning for allowing-internal reporting to be protected applies just as strongly — if not more so— to bringing the claimed illegality directly to the wrongdoer’s attention, especially when minor wrongdoing (like mostly harmless trespassing) is at issue. As we noted in Gaines, “An internal report is often the logical first step, and in many cáses may be the only step necessary to remedy the situation.” Id. at 794. But just as likely, the first logical step, if the goal is to remedy the bad conduct, would be to bring it to the perpetrator’s attention — and in many instances, this too may be the only step necessary to remedy the situation.

Gaines pointed out that it would be absurd to allow an employee to be punished for internally reporting wrongdoing before proceeding to a third-party investigative or enforcement agency (such as legislature or the police, other proper entities listed in the Act). That applies here. It would be absurd if Rogers’s conduct would have been protected if she went to her boss’s boss, and possibly created substantial ill will in her department as a result, but is not protected because she went straight to the source of the illegality, which might have resolved the situation amicably. Indeed, it is often considered impolitic to go over a person’s head to report suspected *349wrongdoing rather than going to the person first. But the majority’s reading of the Act requires such a breach of protocol for the reporting to be protected.

There is no reason to believe the Act does not anticipate this common practice— and protect it. And there is no question-that the plain language of the Act would allow it.

Like in Gaines, “[t]his interpretation serves the goals of liberally construing the. Whistleblower Act in favor of its remedial purpose, and of giving words their plain meaning.” Id. at 793. The majority relies heavily on a statement from Gaines that the purpose of the Act is “to discourage wrongdoing in government, and to protect those who make it public.” Id. But that is not its only purpose.

Behind both of these goals is the assumption that reporting will lead to the illegality being corrected. That is the underlying purpose of the Act, which is supported by protecting those who bring such conduct to public light. But making the illegality public is not the only way to accomplish the underlying goal. Thus, Gaines held that internal reporting was protected, even though such reporting may not result in public disclosure of the wrongdoing.

Though it may not always be successful, especially where as here there is already bad blood between the reporter and the alleged wrongdoer, in many instances bringing the illegality to the possibly innocent-minded wrongdoer may put an end to the wrongdoing. If, instead of firing Rogers, the supervisor in this case had stopped going on to employees’ property, then the goals of the Act would have been met in this case. The reporting would have led to the end of conduct suspected to be illegal. This is true whether the’ act reported was in fapt illegal or not. Rogers believed that it was, relying on what a sheriff had told her. This is all the Act requires and is precisely the type of conduct the Act protects.

Instead, the supervisor chose to fire Rogers. While there is a substantial question as to the motive for that termination, there is at least some proof that it stemmed from what Rogers said to her supervisor.

The majority has withdrawn the Whis-tleblower Act’s protection from conduct like Rogers’s in this case and instead protected the supervisor’s conduct. In so doing, the majority ignores the plain meaning of the Act’s language. I would instead affirm the decision of the Court of Appeals.