Bruce Whitman v. City of Burton

BECKERING, J.

(dissenting). As noted by the majority, this matter is before the Court for a third time. Once again, I must disagree with the majority opinion. In addition to my conclusion that Wurtz v Beecher Metro Dist, 495 Mich 242; 848 NW2d 121 (2014), does not impact the outcome of this case, I disagree with the majority’s analysis regarding the requirements of the Whistleblowers’ Protection Act (WPA), MCL 15.361 et seq., and the majority’s attempt to engraft language that does not exist into the act. In its first opinion in *343this case, the majority held that “a critical inquiry” in determining the validity of a claim under the WPA “is whether the employee acted in good faith and with a desire to inform the public on matters of public concern . . . Whitman v City of Burton, 293 Mich App 220, 230; 810 NW2d 71 (2011) (‘Whitman I) (quotation marks and citations omitted). As the Michigan Supreme Court noted at the time of its first remand in this matter, “[n]othing in the statutory language of the WPA addresses the employee’s motivation for engaging in protected conduct, nor does any language in the act mandate that the employee’s primary motivation be a desire to inform the public of matters of public concern.” Whitman v City of Burton, 493 Mich 303, 306; 831 NW2d 223 (2013) (Whitman II).1 Yet the majority continues to focus on plaintiff Bruce Whitman’s motivations, going so far as to call him “selfish.” Perhaps it is to justify its decision to engraft into the plain language of the WPA another requirement: in addition to a plaintiffs duty to prove that he reported, or was about to report, a “violation or a suspected violation of a law or regulation or rule,” the plaintiff must take the additional step of proving that the law or regulation or rule at issue is one that is deemed to “advance the public interest.” Markedly absent from MCL 15.362 is *344any requirement that a court or jury determine whether the law at issue actually advances the public interest, or whether “the plaintiffs conduct objectively promoted the public interest.” Because I cannot countenance an attempt to judicially impose a requirement into the WPA where no statutory basis exists, especially a requirement that appears to be nothing more than an attempt to get around our Supreme Court’s last prohibition against using the plaintiffs motives as a factor to determine whether he or she has engaged in protected conduct, I dissent.2 See Whitman II, 493 Mich at 319.

The primary purpose of the Supreme Court’s latest remand order in this case, Whitman v City of Burton, 497 Mich 896 (2014) (Whitman TV), was to enable this Court to determine whether Wurtz impacts the outcome. In Wurtz, 495 Mich at 244, our Supreme Court evaluated whether the WPA applies to a fixed-term contract employee “whose term of employment has expired without being subject to a specific adverse employment action identified in the WPA and who seeks reengagement for a new term of employment . . . .” Noting that such an employee “occupies the same legal position as a prospective employee,” and that “[t]he WPA, by its express language, only applies to current employees” and “offers no protection to prospective employees,” the Court concluded that the *345WPA had no application. Id. The Supreme Court made clear, however, that its ruling did not affect the rights of at-will employees and others who enjoy an expectation of ongoing employment and an expectation that they will not be fired or otherwise discriminated against for reasons violative of the WPA. Id. at 256-257. It further clarified that its ruling did not address contracts with a “renewal clause imposing some obligation or duty on the employer to act.” Id. at 258 n 32.

I respectfully dissent from the ruling of my colleagues because I would find that Whitman’s employment situation was considerably different from, and distinguishable from, that of the plaintiff in Wurtz, and that Whitman was protected by the WPA. Unlike the plaintiff in Wurtz, Whitman was not a fixed-term employee whose contract was allowed to expire in accordance with the terms of the agreement. Instead, he was a full-time, 32V2-year employee with the city of Burton who enjoyed an “indefinite” term of employment, much like any other at-will employee protected by the WPA, and who was not reaffirmed in his position as the chief of police because, according to the evidence and the jury’s conclusion at trial, the mayor retaliated against him due to his whistleblowing activities. As such, I remain with my findings and conclusions on all pertinent appellate issues in this case as set forth in my prior dissents, Whitman I, 293 Mich App 220, and Whitman v City of Burton, 305 Mich App 16; 850 NW2d 621 (2014) (Whitman III).

I. WURTZ

In Wurtz, the plaintiff, Richard Wurtz, entered into a fixed-term employment contract with the Beecher Metropolitan District, which manages water and sewage for a portion of Genesee County. Wurtz, 495 Mich at 244-245. Wurtz contracted to serve a 10-year term as the *346district administrator; he drafted the contract himself because he was serving as the district’s attorney at the time he entered into the agreement. Id. at 245. Per the terms of the contract, Wurtz served from February 1, 2000, to February 1, 2010. Id. Notably, the contract did not contain an extension or renewal clause. Id. at 248. Wurtz’s relationship with the board members soured and became “tumultuous” in the two years before his contract expired, which he claimed was due in part to his whistleblowing activities. Id. at 245-247. As his fixed term neared its expiration, Wurtz solicited the board to extend his contract, and he warned the board members that if they did not extend his contract beyond the 10-year period as he wished, he would consider their failure to do so retaliation under the WPA for actions he took against them during his tenure. Id. at 246-247. The board voted not to extend Wurtz’s contract, and instead, allowed it to expire per the terms of the contract. Id. at 247. As the Supreme Court emphasized in its opinion, “[o]ne essential and undisputed fact bears emphasis: Wurtz suffered no adverse consequences in the context of his self-drafted 10-year contract.” Id. He finished his term of employment with no change in his employment status. After the contract expired, Wurtz sued the district and three of its board members “alleging a violation of the WPA and wrongful termination in violation of public policy.” Id. The trial court granted the district’s motion for summary disposition, and this Court reversed in a split decision. Id. at 248.

The Supreme Court granted leave to appeal and framed one of the legal issues in dispute as “whether the plaintiff suffered an adverse employment action under the Whistleblower Protection Act (WPA), MCL 15.361 et seq., when the defendants declined to renew or extend the plaintiffs employment contract, which did not contain a renewal clause beyond the expiration of its ten *347year term[.]” Wurtz v Beecher Metro Dist, 494 Mich 862 (2013) (emphasis added). In its analysis, the Supreme Court concluded that “a contract employee seeking a new term of employment should be treated the same as a prospective employee for purposes of the WPA.” Wurtz, 495 Mich at 249. Thus, “[t]he question then becomes whether a spurned job applicant can bring a claim under the WPA.” Id. The Court held that “the WPA, by its express language, has no application in the hiring context. Thus, the WPA does not apply when an employer declines to renew a contract employee’s contract.” Id. The Court held that in the context of the Wurtz case, “no relevant difference exists between a new job applicant and a current contract employee seeking a new term of employment.” Id. at 250. Although the Court held that the WPA did not apply to the plaintiffs request for renewal of his contract in Wurtz, it expressly noted that the contract at issue did not contain a renewal clause and left open the issue whether such a clause would have an effect on its analysis. Id. at 258 n 32 (“Wurtz’s contract did not contain any renewal clause imposing some obligation or duty on the employer to act. Thus, we need not address the effect that such a clause would have on our analysis.”) (emphasis added).

The relevant provision of the WPA, MCL 15.362, states as follows:

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 *348public body to participate in an investigation, hearing, or inquiry held by that public body, or a court action.

Our Supreme Court noted that the WPA “only applies to individuals who currently have the status of an ‘employee,’ ” Wurtz, 495 Mich at 252, and because Wurtz made “no claim that his employment contract was in any way breached or that he was subject to a specific adverse employment action enumerated by the WPA during his contract term,” his claim was not covered by the WPA. Id. at 252 n 16. The Court noted that “[w]hile the ADEA[3) and Title VII[4] may apply in the context of a contract renewal, that fact has no bearing on the application of the WPA.” Id. at 255. As to why the WPA only covers current employees and not prospective employees, our Supreme Court noted, “[t]his Court need not inquire why the Legislature chose to confine the WPA’s protections by the bookends of employment while extending the [Civil Rights Act’s] protections to the hiring context. The Legislature elected to craft its legislation that way, and we decline to second-guess the wisdom of the Legislature’s policy decisions.” Id. at 255 (emphasis added).

Our Supreme Court emphasized, however, the limited nature of its holding and made clear that the WPA “does protect” against prohibited employer actions both at-will employees, who “stand [] squarely within the WPA’s protections,” and employees working under fixed-term contracts with respect to an employee’s service under such a contract. Id. at 256-257.

II. APPLICATION OF WURTZ TO WHITMAN

That brings us to the present case. Whitman testi*349fied at trial that he was first hired by the city of Burton as a civilian police aide in June 1975. He attended the Flint Police Academy, and the city of Burton hired him as a paid reserve officer. He then became a part-time officer, and in 1978, he became a full-time officer. After working full-time as a patrolman, he was promoted to sergeant in 1991. In 1998, he was promoted to lieutenant. In December 2001, defendant Charles Smiley, the mayor at the time, appointed Whitman to serve as the interim police chief, and in March 2002, he promoted Whitman to the position of chief of police, which Whitman held until Smiley removed him from that post on November 27, 2007.5

A. PERTINENT CHARTER PROVISIONS DEFINING WHITMAN’S EMPLOYMENT RELATIONSHIP

Smiley testified that pursuant to the city charter, within 30 days of a mayor’s election, the mayor must submit the names of “the clerk, the fire chief, the police chief, the assessor, [and] the treasurer ... to the City Council” to be confirmed by the council. In this regard, the city charter provides that city administrative officers are “the Mayor, the Clerk, the Treasurer, the Attorney, the Assessor, the Chief of Police, the Fire Chief, and a Board of Review.” Burton Charter § 6.1(a).

*350Section 6.1(c) provides that “[t]he terms of all administrative officers, except the Mayor, shall be indefinite” (Emphasis added.)

Section 6.2(b) provides that

[a] 11 other administrative officers [except the City Attorney and the City Auditor] shall be appointed by the Mayor subject to the approval of the Council, and shall serve at the pleasure of the Mayor for indefinte [sic] terms, except that the Mayor shall reaffirm or appoint those administrative officers and other appointive officers provided in this charter within thirty (30) days from his election, and give Council notice of same. [Emphasis added.]

B. APPLICABILITY OF THE WPA TO WHITMAN’S EMPLOYMENT

I disagree with the majority’s conclusion that this case fits so neatly into the rule established in Wurtz. I begin by noting the significant ways in which this case is different from Wurtz. The plaintiff in Wurtz was employed pursuant to a 10-year contract with no renewal clause. The contract contained no provisions for changing its end date or for otherwise renewing the term of Wurtz’s employment. Thus, nothing required the employer to make a choice about the plaintiffs employment; the employment simply expired. The end of the plaintiffs employment relationship was a fait accompli. Any hope the plaintiff had of employment after the expiration of the 10-year term was in striking up a new term of employment. In this sense, given the terms of the plaintiffs employment agreement, he was nothing more than a prospective employee. As the dissenting opinion (which was ultimately embraced by the Supreme Court) pointed out when the Wurtz case was before this Court:

The WPA requires the existence of an employment relationship. By plaintiffs own admission, defendants scrupu*351lously adhered to the terms of his contract. Plaintiff now seeks damages because defendants abided by the terms of his employment contract. Plaintiffs position is illogical and lacks any support in our jurisprudence. Absent a contractual obligation or legal duty to consider an extension or renewal of an employment contract, a cause of action under the WPA is unavailing when a contractual employee finishes a fixed-term contract. [Wurtz v Beecher Metro Dist, 298 Mich App 75, 91; 825 NW2d 651 (2012) (K. F. KELLY, J., dissenting), rev’d 495 Mich 242; 848 NW2d 121 (2014) (emphasis added).]

I respectfully suggest that the instant case falls squarely within the exception set forth in the dissenting opinion of our Court in Wurtz, and as expressly carved out by our Supreme Court when it held that the ruling in Wurtz dealt only with a fixed-term contract that “did not contain a renewal clause beyond the expiration of its ten-year term.” Wurtz, 494 Mich at 862 (emphasis added). See also Wurtz, 495 Mich at 258 n 32. Here, in contrast to Wurtz’s fixed-term contract, the city of Burton’s charter contained a clause providing that the chief of police’s term of employment “shall be indefinite,” § 6.1(c), as well as a clause pertaining to the renewal of that “indefinte [sic] term]],” § 6.2(b). Notably, § 6.2(b) of the city of Burton’s charter provided that Whitman’s employment was indefinite, “except that the Mayor shall reaffirm or appoint those administrative officers and other appointive officers provided in this charter within thirty (30) days from his election, and give Council notice of same.”6 This is effectively a renewal clause that imposed an obligation on Mayor Smiley to make a choice about Whitman. The *352issue involved in this case was purposely not addressed in Wurtz. See Wurtz, 495 Mich at 258 n 32 (“Wurtz’s contract did not contain any renewal clause imposing some obligation or duty on the employer to act. Thus, we need not address the effect that such a clause would have on our analysis.”).

It is the existence of the choice, mandated by the renewal clause, that takes this case outside the ambit of Wurtz and brings Whitman within the protection of the WPA. Under the city of Burton’s charter, WTdtman’s term of employment was expressly and repeatedly defined as “indefinite,” and it was only to be reevaluated at the time a mayor won reelection. Like any at-will employee, Whitman could certainly be fired at any time, as he served at the pleasure of the mayor — this simply means that the mayor was delegated the authority to choose several of the city’s employees who served as his or her administrative officers. In general, Whitman was, for all intents and purposes, an at-will employee, and such employees are protected by the WPA. Wurtz, 495 Mich at 256-257. Notably, upon a mayor’s reelection, § 6.2(b) imposed an obligation or duty on the mayor to act and to make a decision about his administrative officers’ continued employment. Section 6.2(b) provides that the mayor “shall reaffirm or appoint those administrative officers and other appointive officers provided in this charter within thirty (30) days from his election, and give Council notice of same.” Such a decision was mandated, as evidenced by the use of the word “shall” in § 6.2(b). Burton Ordinance § 10.05(B) (defining the word “shall” to mean that “[t]he act referred to is *353mandatory”). See also Old Kent Bank v Kal Kustom Enterprises, 255 Mich App 524, 532; 660 NW2d 384 (2003) (“The word ‘shall’ is generally used to designate a mandatory provision . .. .”). Therefore, unlike Wurtz, this case did not involve an employment relationship that was bound to expire on its own terms, which would have left plaintiff in the same position as that of a prospective employee. The terms of Whitman’s employment required Smiley to make a choice about the direction in which the employment relationship would go.

Although police chiefs often serve at the pleasure of their mayor, it is also true that police officers often attain such a position after years of service in law enforcement, and it becomes the capstone of their careers. Many serve for one or more decades in the position and retire from it at the end of their careers. To be sure, Whitman was not entitled to serve as long as he wished in the role of chief of police. He could be fired at any time and for any reason that did not violate the law. But given the language of the city of Burton’s charter, I would hold that Whitman was serving within the bookends of his employment and that the WPA protected him from being fired or not reaffirmed by Smiley based on any discriminatory reasons. To interpret the applicability of the WPA as the majority suggests, in addition to being incorrect in my opinion, would potentially compromise the role of the chief of police, as the police chief could jeopardize his or her employment if he or she did not follow the mandates of the mayor, which might cause the police chief to ignore a violation of a law or regulation or rule so as to not risk being fired. That cannot be what the enactors of the WPA intended.

Because Whitman held an indefinite term of employment that carried with it the express option of being *354continued by reaffirmation, I find that any decision to terminate that employment, if motivated by protected activity, was a violation of the WPA. “The underlying purpose of the WPA is protection of the public. The statute meets this objective by protecting the whistle-blowing employee and by removing barriers that may interdict employee efforts to report violations or suspected violations of the law.” Pace v Edel-Harrelson, 309 Mich App 256, 264; 870 NW2d 745 (2015) (quotation marks and citations omitted; emphasis added). In light of the purpose of the WPA, I decline to adopt the majority’s narrow reading of the act, which would allow an employer to discriminate against an employee whose term of employment is expressly subject to a renewal clause, yet face no consequences under the WPA for taking a discriminatory action.7 Where the terms of employment require consideration of renewal, I cannot interpret the WPA as countenancing willful discrimination against an employee for whistleblowing activities at the time the employer makes a decision on the employee’s renewal clause. Indeed, the WPA is a remedial statute that is to be liberally construed. See id. Allowing an employer who is mandated to make a choice about a current employee to discriminate against that employee because he or she engaged in protected whistleblowing activities would, in my mind, strike a damaging blow to the WPA.

III. ADOPTION OF THE ANALYSIS IN MY PRIOR DISSENTS

In light of the Supreme Court’s opinion in Whitman II, 493 Mich 303, and its decision to “vacate the *355judgment of the Court of Appeals” following the first remand, and to remand the case for a second time to consider the impact of Wurtz, Whitman TV, 497 Mich at 896, the slate has been wiped clean of this Court’s earlier binding opinions. The majority duly fulfills its obligation to reconsider this case in light of Wurtz. But in addition, the majority readopts nearly verbatim its earlier analysis after the first remand in this case, Whitman III, 305 Mich App at 22-33. As noted in the introductory paragraph of this dissenting opinion, I take issue with the majority’s attempt to engraft a requirement into MCL 15.362 that does not exist. MCL 15.362 provides that

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, apolitical 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. [Emphasis added.]

Nothing in the plain language of the statute requires a court or a jury to decide as a matter of fact whether the law or regulation or rule objectively advances the public interest. No qualitative analysis is required to decide which law or regulation or rule is worthy of being covered by the WPA. The plain language of MCL 15.362 does not remotely suggest that some laws are included and others are not. As the Supreme Court pointed out in Whitman II, 493 Mich at 311-312:

*356When interpreting a statute, we follow the established rules of statutory construction, the foremost of which is to discern and give effect to the intent of the Legislature. To do so, we begin by examining the most reliable evidence of that intent, the language of the statute itself. If the language of a statute is clear and unambiguous, the statute must be enforced as written and no further judicial construction is permitted. Effect should be given to every phrase, clause, and word in the statute and, whenever possible, no word should be treated as surplus-age or rendered nugatory. Only when an ambiguity exists in the language of the statute is it proper for a court to go beyond the statutory text to ascertain legislative intent.

The plain and unambiguous language of the WPA, as is, “meets its objective of protecting the public,” id. at 318, and “further judicial construction” is neither required nor permitted, id. at 312. The Supreme Court also admonished that “there is no ‘primary motivation’ or ‘desire to inform the public’ requirement contained within the WPA,” and such a requirement cannot be judicially imposed — “[t]o do so would violate the fundamental rule of statutory construction that precludes judicial construction or interpretation where, as here, the statute is clear and unambiguous.” Whitman II, 493 Mich at 313.

Despite the Supreme Court’s explicit and repeated admonitions not to consider a plaintiffs motives when determining whether a plaintiff has engaged in protected activity under the WPA — because such motive is irrelevant to the issue — the majority opinion attempts to place an invisibility cloak over its effort to do just that. Imposing on MCL 15.362 a new, judicially created requirement to evaluate whether, in fact, the law or regulation or rule at issue in the WPA action actually serves the public interest, brings motive — or purpose— back into the equation. For example, the majority describes Whitman’s attempt to enforce Ordinance *35768-C as a “(mis)use” of the WPA. They opine that Whitman’s conduct “objectively disserved the public interest,” that he “objectively served his interest, but harmed the public’s,” and that “[t]his is an employee’s insistence, plain and simple, that he get his perk .. . As Shakespeare noted, calling a rose, by another name does not alter what it is. The majority attempts to add the sweet fragrance of a new name to its judicially created imposition: assessing the objectives of the plaintiff and determining whether his or her actions actually advance the public interest. Nothing in the plain language of MCL 15.362 supports this additional requirement.

Even if the majority has correctly engrafted a new requirement into the language of MCL 15.362, I disagree that Whitman’s actions were “unquestionably and objectively contrary to the public interest” and “harmed, not advanced, the public interest,” as characterized by the majority. As I noted in my prior dissenting opinions, seeking to balance a budget through violating one of the city’s own ordinances hardly seems to serve the public interest. Whitman I, 293 Mich App at 248 (Beckering, J., dissenting). As the chief of police, Whitman was fulfilling his duty to uphold the law, which was certainly in the public interest. Id. The public interest is served when a violation of the law is reported. Whitman III, 305 Mich App at 46 (BECKERING, J., dissenting); see also Dolan v Continental Airlines / Continental Express, 454 Mich 373, 378 n 9; 563 NW2d 23 (1997). And while the city may save expenses by ignoring the requirements of Ordinance 68-C, the public will literally not be served on the days the public servants subject to the ordinance are absent from work, taking their allotted sick, personal, and vacation time in *358light of the mayor’s warning to “use it or lose it.” Whitman III, 305 Mich App at 47 n 4 (BECKERING, J., dissenting).

I could, like the majority, reiterate the arguments I set forth in my prior dissenting opinions. To do so, however, would be purely repetitive, as nothing has changed the analysis. Consequently, to spare the reader the redundancy, I adopt and remain with my previous findings and conclusions on all pertinent appellate issues in this case. See Whitman I, 293 Mich App 220; Whitman III, 305 Mich App 16.

IV. CONCLUSION

Because I conclude that Wurtz does not affect the outcome of this case, I would affirm the trial court’s order awarding judgment to Whitman in keeping with the jury’s verdict. As set forth in my prior dissents, the trial court did not err in denying defendants’ motion for JNOV. See Whitman I, 293 Mich App at 237-239 (BECKERING, J., dissenting); Whitman III, 305 Mich App at 41-47 (BECKERING, J., dissenting). There was sufficient evidence of causation to create a material question of fact for the jury. See Whitman I, 293 Mich App at 240-242 (BECKERING, J., dissenting); Whitman III, 305 Mich App at 47-57 (BECKERING, J., dissenting). The trial court did not abuse its discretion in denying defendants’ motion for a new trial. See Whitman I, 293 Mich App at 250-252 (BECKERING, J., dissenting). And the trial court did not err by concluding that Smiley is not entitled to a setoff. Id. at 252-253. Finally, for the reasons stated above, I strongly disagree with the majority’s conclusions that Whitman did not engage in protected activity and that he was not a whistleblower. Such conclusions conflict with our Supreme Court’s earlier rulings and dangerously distort the WPA.

The Supreme Court further noted that “the plain language of MCL 15.362 controls, and we clarify that a plaintiffs motivation is not relevant to the issue whether a plaintiff has engaged in protected activity and that proof of primary motivation is not a prerequisite to bringing a claim. To the extent that Shallal [u Catholic Social Servs of Wayne Co, 455 Mich 604; 566 NW2d 571 (1997)] has been interpreted to mandate those requirements, it is disavowed.” Whitman II, 493 Mich at 306. See also id. at 313, 318-319, 321. As the Supreme Court pointed out in its opinion, id. at 314-319, and as I addressed in my dissenting opinion in Whitman I, 293 Mich App at 232-250 (Beckering, J., dissenting), Shallal and related caselaw focused on causation and the failure to establish a causal connection between a plaintiffs firing and the protected activity.

As noted by the Supreme Court in Whitman II, 493 Mich at 313, “[t]o do so would violate the fundamental rule of statutory construction that precludes judicial construction or interpretation where, as here, the statute is clear and unambiguous.” The fact that the majority's new requirement of “advanc[ing] the public interest” is seen nowhere else in the caselaw, from what I could ascertain, further supports the conclusion that the majority is overstepping its bounds. As the Supreme Court noted, the plain and unambiguous language of the WPA, as is, “meets its objective of protecting the public .. . .” Id. at 318.

Age Discrimination in Employment Act, 29 USC 623(a)(1).

Title VII of the federal Civil Rights Act, 42 USC 2000e-2(a)(l).

Smiley, who was first elected mayor in 1991, testified that after the previous police chief retired in 2002, he formed a search committee and ultimately selected Whitman from among the top two or three candidates “because he was a Burton officer. I really thought we should promote within.” After Smiley was reelected in 2003, he reaffirmed Whitman as the chief of police. What was described in detail in earlier opinions of this Court need not be rehashed here. Whitman presented evidence at trial to establish that he engaged in whistleblowing activities in 2003 and 2004 that raised the ire of Smiley and almost got 'Whitman fired in 2004. After Smiley was reelected in November 2007, he decided not to reaffirm Whitman as the police chief. The jury concluded that this decision was motivated in part by Whitman’s whistleblowing activities.

Contrary to the characterization set forth in the majority opinion, plaintiff was not appointed to “a four-year term” or a “four-year appointment” as the chief of police. Rather, it was Mayor Smiley who held a four-year term. Upon his election, the city charter tasked him with deciding whose names to submit to the City Council to serve as his *352administrative officers; those officers served at his pleasure. After his reelection, Smiley was tasked with deciding whom to reaffirm in that capacity.

This is not to imply that a renewal clause offers an at-will employee such as Whitman any greater protections than those of any other at-will employee. Rather, I would simply hold that the choice an employer makes about a renewal clause is within the bookends of the at-will employee’s employment.