Court Finds Police Officer’s Whistleblowing Web Page And E-Mail Protected By First Amendment

Dennis Whittie is a police officer with the City of Hamtramck, Michigan. In the Spring of 2003, he sent correspondence to City, County and State authorities reporting that City employee, Melvin Turner, held two municipal positions in violation of a Michigan state law. Later that year, Whittie discovered that Steve Shaya, the City’s building superintendent, had concealed the fact that he was a convicted felon and was thereby employed in contravention of the City’s charter.

Whittie then launched a private investigation into Shaya’s activities that culminated in a report that he submitted to a variety of government officials. In April 2003, Whittie created a web site called “Inside Hamtramck,” which he continues to maintain. The web site publishes information and commentary on a variety of municipal issues.

In July 2003, then-Deputy Chief James Doyle sent Whittie a memorandum indicating that Shaya had filed a citizen’s complaint against him and that the Department was conducting an investigation into his preparation of the Shaya report. The final line of the memorandum indicated that “any communications regarding this matter are not to be released to any civilian personnel without permission from the Director of Public Safety.” Several days later, Whittie put a scanned copy of the memorandum on the Inside Hamtramck web site accompanied by an invective against Doyle, Turner and Shaya.

Whittie’s conduct earned him a ten-day suspension, which was appealed to arbitration by Whittie’s labor organization, the Fraternal Order of Police. An arbitrator found that Whittie’s critical statements of Turner and other City officials did not constitute protected speech, but reduced the ten-day suspension to a written reprimand due to mitigating circumstances.

After the disciplinary hearing, Whittie sent an e-mail to approximately 18 people that discussed the status of his web site, the nature of the charges asserted against him, the history of the hearing, and his reaction. Doyle, who is now Police Chief, interpreted the e-mail as a direct violation of the order he gave at the beginning of the disciplinary process. After a brief investigation, Doyle terminated Whittie for violating the confidentiality order. A second arbitrator reduced the termination to a 16-month suspension without pay due to mitigating factors.

In the meantime, Whittie sued the City, contending that his discipline violated his First Amendment rights. Thus far, Whittie has fared better in the courts than he did with the arbitrators.
The City argued that Whittie’s First Amendment lawsuit should be dismissed on the grounds of “collateral estoppel and res judicata,” which barred Whittie from re-litigating issues that were decided in the disciplinary arbitrations. A federal court rejected the City’s attempt to dismiss the lawsuit, finding that “although arbitration is well-suited to resolving contractual disputes, it cannot provide an adequate substitute for a judicial proceeding in protecting the federal statutory and constitutional rights that the Civil Rights Act is designed to safeguard. Therefore, according preclusive respect to the determinations of the arbitrators would severely undermine the protection of federal rights that the Civil Rights Act is designed to provide.”

The Court also found that Whittie’s speech (the maintenance of the web site and his e-mail message) was protected by the First Amendment. The Court concluded that “Whittie’s activities sought to develop informed opinions by disclosing that high-ranking City officials had engaged in improper conduct. Therefore, the information contained on his web site and in the Shaya report substantially concerned issues about which information is needed or appropriate to enable the members of society to make informed decisions about the operation of their government.”

The Court also found that Whittie’s e-mail discussing the disciplinary hearing also addressed a matter of public concern. While the Court acknowledged that, “viewed in a vacuum, strong argument could be made that the e-mail only addresses a matter of personal interest, i.e., how Doyle’s personnel decision affected Whittie, a closer review of both the context and the content of the e-mail shows that it falls within the ambit of the First Amendment. It is impossible to divorce the second disciplinary action from the first. The e-mail is clearly a continuation of Whittie’s discussion of the Shaya report and the retaliation he received as a result of his muckraking activities. The e-mail discusses how the disciplinary actions affect not only Whittie, but also his ability to inform the public through his web site and his correspondence with public officials.

Whittie was justified in taking issue with Doyle’s broad order prohibiting him from contacting government officials and the public. Indeed, the First Amendment retaliation cause of action was designed to prevent such attempts by high-ranking officials to silence public employees.”

The Court also found wanting the City’s arguments that Whittie engaged in a deliberate act of insubordination through the sending of his e-mail message, and that the disruption in the work site that resulted outweighed Whittie’s First Amendment rights. The Court noted that the City “failed to produce evidence of insubordination or disruption that would tip the balancing in their favor. Ordinarily, a police department should be afforded great leeway in disciplining insubordinate police officers. Nevertheless, it is not a self-evident proposition that an officer who defies a police chief’s order during a disciplinary hearing has committed an act of insubordination that threatens the efficiency of the police department. The bulk of the evidence indicates that the concern for maintaining discipline was more hypothetical than actual.”

The Court concluded its opinion by ruling that Whittie’s claims under the First Amendment and other Michigan whistleblowing laws “are permitted to proceed in a manner consistent with this opinion.”

Whittie v. City of Hamtramck, 2005 WL 1529733(E.D.Mich. 2005).

This article appears in the August 2005 issue