Supreme Court Says Police Union Chief’s Lawsuit Can Continue Against Flint

FLINT, MI – A lawsuit from the president of the Flint police officer’s union that claims he was punished for speaking out on the city’s use of the then-recently-passed public safety millage could be headed for trial after the state Supreme Court remanded the case back to Genesee Circuit Court.

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.

“I’m very proud to represent Kevin Smith. He’s a courageous police officer who risked his job to tell us they weren’t using the millage money for what we voted for. They were using it for general fund and other things,” said Smith’s attorney, Tom Pabst. “We actually changed the law in the state of Michigan. More protection for whistleblowers is what it comes down to, which is a good thing because whistleblowers protect us the people.”

The Michigan Supreme Court’s order came on Friday, Feb. 3.

MLive-The Flint Journal could not reach city officials for comment on the case.

Genesee Circuit Judge Joseph J. Farah dismissed Smith’s Whistleblower Protection Act claim in January 2014 following a summary disposition motion. Farah ruled that Smith had not experienced an adverse employment act as defined by the state’s whistleblower law.

However, the Supreme Court’s decision rejects Farah’s ruling, and further clarifies what could be considered as an adverse employment act.

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.

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.

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 not 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.

Pabst said the case should go back to trial in Farah’s court within 10 months – unless the city decides to settle.

“We’ll let the jury decide what your amount of loss is,” Pabst said. “(The city) could put money on the table and settle any time. I expect this case will be tried in front of a jury. Kevin makes a great witness. He had the guts to speak up knowing he would get pounded.”


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