Whistleblowing Report Potentially Protected By First Amendment

Melvin Kindle worked for the City of Jeffersontown, Kentucky as a police officer; Bradley Silveria and Diedra Adkins were dispatchers for the Police Department. On October 27, 2006, the three tendered a report pursuant to Kentucky’s Whistleblower Act. The report alleged that a lieutenant colonel with the Department (1) violated federal and state wage and hour laws by requiring dispatchers to report for duty 15 minutes early and not paying them overtime; (2) generated unnecessary overtime by forcing some dispatchers to work overtime so that others could attend social events with the lieutenant colonel; (3) violated staffing policy by leaving only one dispatcher on duty so that others could accompany the lieutenant colonel on Secretary’s Day; (4) failed to contribute to the retirement account of a part-time employee and then reduced that employee’s work schedule when she complained to the administration; (5) improperly used an online database to check on employees’ controlled substance prescriptions; (6) failed to qualify with her firearm; and (7) committed miscellaneous acts of mismanagement and/or abuse of authority.

When all three employees were fired, they brought a lawsuit alleging, among other things, that their report was protected by the free speech guarantees of the First Amendment. A federal court of appeals recently ruled that the employees were entitled to a trial on the issue.

The Court began with the basic principle that “in determining whether a public employer has violated an employee’s First Amendment rights of free speech, the Supreme Court has instructed courts to engage in a three-step inquiry. First, a court must determine whether the relevant speech addressed a matter of public concern. If the answer is yes, the court must balance between the interests of the employee, as a citizen, in commenting upon matters of public concern and the interest of the State, as an employer, in promoting the efficacy of the public services it performs through its employees. Finally, the court must ascertain whether the employee’s speech was a substantial or motivating factor in the employer’s decision to take the adverse employment action against the employee.”

Since a lower court had held that the whistleblowing report did not concern a matter of public interest, the appeals court confined itself to that issue. The Court held that “the report alleges that the lieutenant colonel violated federal and state hour laws, generated unnecessary overtime, violated staffing policies of the Department, failed to contribute to an employee’s retirement account, improperly checked employees’ controlled substance prescriptions, failed to qualify with her firearm, and committed various acts of mismanagement and abuse. This court has consistently held that speech on the same topics as the report at issue – the efficacy and operations of public agencies and allegations of misconduct by public officials – addresses a matter of public concern. The fact that seven Department sergeants and two Department corporals had also reported allegations of misconduct by the lieutenant colonel indicates that this speech cannot be written off as a matter only of personal interest or a few disgruntled employees’ grievances concerning internal office policy. Even if the speech was motivated by self-interest, this Court has rejected the notion that speech does not touch on a matter of public concern because it is predominantly motivated by self-interest. The fundamental issue is the distinction between matters of public concern and matters only of personal interest, not civic-minded motives and self-serving motives. Thus, the whistleblowing report addresses a matter of public concern.”

The Court remanded the case to the trial court for an assessment of whether the whistleblowing report met the remaining two tests for protected speech.

Kindle v. City of Jeffersontown, Ky., 2010 WL 891305 (6th Cir. 2010).

This article appears in the May 2010 issue