FLINT, MI – The state Supreme Court will hear arguments in a lawsuit from the president of the Flint police officer’s union who claims we has punished for speaking out on the city’s use of the then-recently-passed public safety millage.
Flint Police Officer Association President Kevin Smith claimed in a 2013 lawsuit against the city that he was assigned to night patrol in the city’s north side after he spoke out publicly and to department leadership about how the city was using $5.3 million in public safety millage funds by claiming that the funds were not being used to hire new officers.
Genesee Circuit Judge Joseph J. Farah dismissed Smith’s Whistleblower Protection Act claim in January 2014 following a summary disposition motion, claiming that Smith had not experienced an adverse employment act as defined by the state’s whistleblower law.
Smith began legal action against the city after his position as full-time union president was eliminated by the city as part of an April 14, 2012, order issued by former Emergency Manager Michael Brown.
In April 2012, then-Flint Emergency Manager Michael Brown issued order No. 18 that instituted a number of changes to the union’s contract with the city, including the immediate elimination of the union president position.
However, Smith said the city waited until Monday, March 11, 2013, to actually terminate the position when he was ordered back to road patrol.
As president, Smith worked from 8 a.m. to 4 p.m. with weekends off in order to handle union business.
He was eventually assigned to the night shift in the city’s north end when he was ordered back to road patrol.
Smith alleges in the lawsuit that police leaders scheduled him to work exclusively in the north end — a beat that he claims in the lawsuit is more dangerous than others in the city — as retaliation. Smith claims that no other patrol officers are assigned solely to the city’s north end.
The lawsuit claimed Smith was retaliated against after he made public statements that the city was fulfilling its promises of hiring new officers with the voter-approved public safety millage monies.
An appeals court in November 2015 upheld Farah’s ruling in a 2-1 decision.
Appeals Court Judges Henry William Saad and Michael J. Riordan ruled that the city’s decision to assign Smith to patrol duty in the city’s north end did not constitute an adverse employment action.
“Plaintiff’s assignment to patrol areas of the city is more in the nature of ‘job duties’ that fall squarely within the discretion of a police department’s fundamental role in securing public safety,” the judges ruled.
However, Appeals Judge Karen M. Fort Hood dissented, stating the question whether or not Smith was discriminated against should be determined by a jury.
Smith’s attorney, Tom Pabst, said the Supreme Court’s eventual decision in the case could eventually redefine the state’s laws on adverse employment actions and impact other cases moving forward.
Smith and the city each have 42 days from the Supreme Court’s June 10 ruling to submit briefs on the case.