CHERYL DEBANO-GRIFFIN V LAKE COUNTY
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STATE OF MICHIGAN
COURT OF APPEALS
CHERYL DEBANO-GRIFFIN,
UNPUBLISHED
October 15, 2009
Plaintiff-Appellee,
v
LAKE COUNTY and LAKE COUNTY BOARD
OF COMMISSIONERS,
No. 282921
Lake Circuit Court
LC No. 05-006469-CZ
Defendants-Appellants.
Before: Zahra, P.J., and Whitbeck and M. J. Kelly, JJ.
WHITBECK, J. (concurring).
I concur in the result that the lead opinion reaches. I write separately to set out my
understanding of the question that this case presents and to explain what I believe to be the
correct answer to that question. I believe the question before us is: with what degree of
specificity must an employee describe a violation—whether known or merely suspected—of an
actually and contemporaneously existing law in order to be engaged in a protected activity under
the Whistleblowers’ Protection Act?1 I believe the answer to that question to be that an
employee must provide a description of the connection between the known or suspected
violation that the employee reports and an actually and contemporaneously existing law that
would give notice to an objectively reasonable employer of both the known or suspected
violation and the actually and contemporaneously existing law.
To reach the ultimate question and the ultimate answer, however, it is necessary to clarify
two matters that cause at least some confusion about the appropriate analysis in this case. The
first is legal, the second factual.
I. Actual Versus Suspected Violations Of Law
Section 2 of the Whistleblowers’ Protection Act provides that:
An employer shall not discharge, threaten, or otherwise discriminate against an
employee . . . because the employee . . . reports or is about to report, verbally or in
1
MCL 15.361 et seq.
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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.[2]
The parties have sparred, both before the trial court and before this Court, regarding the
meaning of this section. One thing is absolutely clear, however. Under the plain language of the
statute, an employee is engaged in a protected activity under the Act if the employee reports or is
about to report either an actual violation of law or a suspected violation of law.3 (Section 2
refers to a “law or regulation or rule promulgated pursuant to law of this state, a political
subdivision of this state, or the United States.” I recognize that there are significant differences
between laws, regulations, and rules. For simplicity sake, however, in the balance of this
concurrence I use the term “law” to include laws, regulations, and rules).
The Act does not require that an employee report an actual violation of law. It is
sufficient for the employee to report a violation of law that the employee suspects has occurred.
And the Act most certainly does not require that an employee prove the existence of such a
violation. The dissent is therefore correct when it asserts that “an employee is still protected
even if he or she turns out to be mistaken about whether the reported activities actually violated a
promulgated law, regulation[,] or rule.”4
The lead opinion is, however, correct that the word “suspected” in § 2 modifies only the
word “violation” and not the word “law.”5 The lead opinion asserts, “[T]he WPA does not
protect an employee who reports or is about to report a suspected violation of a suspected law.”6
I would take this statement one step further. The Act does not protect an employee who reports
or is about to report a violation, whether suspected or actual, of a law that the employee suspects
may exists. Put differently, in order to engage in a protected activity under the Act, an employee
must report or be about to report an actual or suspected violation of a law that actually and
contemporaneously exists. The Act does not contemplate a wish list; it is not sufficient for the
reporting employee to suspect that a law covering the conduct in question exists, or hope that
such a law exists, or even to believe that such a law exists. The law (or laws) covering the
conduct in question must actually and contemporaneously exist.
Thus, I believe the dissent to be only partially correct when it asserts that, “[T]he
employee would be protected even if it turns out that the employee was mistaken about whether
there was a promulgated law, regulation[,] or rule that applied to the facts that he or she
reported.”7 The employee would be protected if that employee were mistaken about the
2
MCL 15.362 (emphasis added).
3
See Trepanier v Nat’l Amusements, Inc, 250 Mich App 578, 583; 649 NW2d 754 (2002).
4
Post at ___.
5
Ante at ___.
6
Id.
7
Post at ___.
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application of the facts to an actually and contemporaneously existing law; this falls reasonably
within the ambit of a “suspected violation” of law. But the employee would not be protected if,
in fact, there was no law that applied to the conduct in question; the law must be actually and
contemporaneously in effect at the time that the employee reports, or is about to report, the actual
or suspected violation.
II. The Conduct In Question
Defendants Lake County and Lake County Board of Commissioners assert, correctly, that
plaintiff Cheryl Debano-Griffin reported two separate categories of conduct that later became the
subject matter of her whistleblower suit in this case. The first category related to ambulance
services provided to Lake County under a contract with LIFE EMS. The second category related
to the alleged diversion of ambulance millage funds.
With respect to the first category, in her Second Amended Complaint, Debano-Griffin
asserted that she reported that, “Lake County ambulances were being re-directed to other
counties or for transport of non-emergency patients, thereby depriving Lake County of timely
ambulance services for residents in need of emergency service.” It is clear, however, that in
making such reports, Debano-Griffin was not engaged in a protected activity under the Act. At
her deposition, Debano-Griffin acknowledged that her claim related to alleged contractual
violations only:
Q. My question is, are you claiming that the redirection of ambulance services, as
alleged in paragraph 26 [of the Second Amended Complaint] was in violation
of anything else besides the contract between Lake County and Life EMS?
***
A. No.
Later in her deposition, counsel for Lake County asked Debano-Griffin about the laws she
claimed were violated with respect to the LIFE EMS contract:
Q. What laws are you claiming they violated?
A. The governing rules for ambulances with relationship to 911 having to
basically provide immediate police, fire and ambulance services.
Q. Can you be any more specific than saying that they’re the “governing rules”?
A. No.
Q. Where would I find these governing rules?
A. I don’t know.
Q. Where did you find them?
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A. It’s what we’ve learned about over the last several years throughout the State
of Michigan.
Q. How have you learned them?
A. Through other 911 directors.
Q. And you’ve been told that these are governing rules?
A. These are good rules to follow, governing rules to follow, whatever.
Q. Okay. Have you been told that they are the laws of the State of Michigan?
A. Not specifically.
Q. Have you been told that they are the laws of the United States of America?
A. No.
Two things are clear from these exchanges. The first is that, at best, Debano-Griffin was
reporting what she believed to be contractual breaches by LIFE EMS. The second is that in
reporting these alleged breaches, she was not reporting actual or suspected violations of law.
The reporting of alleged violations of “good rules to follow, governing rules to follow, whatever”
is simply not the reporting of a violation of actually and contemporaneously existing law.
Debano-Griffin’s reporting of the alleged diversion of ambulance millage funds, if I
understand it correctly, is quite a different matter and is related to two distinct instances. The
first was the transfer of $50,000 from an ambulance fund into a 911 fund that she administered.
In her deposition, Debano-Griffin claimed that this was improper because the voters voted
specific millage money for ambulance service and that was separate from the money they voted
for 911 funding. The second instance related to the use of ambulance fund monies to pay for
LEIN encryption. In her deposition, Debano-Griffin claimed that this was improper because
ambulance services do not require use of the LEIN machine and also because this was “not what
the voters voted on.”
At this point, it is important to note that throughout her deposition, Debano-Griffin
referred to “improper” transfers from the ambulance fund, presumably on the basis that such
transfers were not in accordance with what the voters voted on. She also stated that she talked
about these allegedly improper transfers with the finance committee, apparently of the Lake
County Board of Commissioners, and with the Board of Commissioners itself. And in a
memorandum of November 10, 2004, she notified the Board of Commissioners that she had
moved the first meeting of the Compliance Review Committee to a higher priority because of
“some possible accounting irregularities.” Otherwise, the record below is barren—at least in my
review—of any more particularized description of how these transfers violated the law. Thus,
the question before us is actually this: with what degree of specificity must an employee
describe a violation—whether known or merely suspected—of an actually and
contemporaneously existing law in order to be engaged in a protected activity under the Act?
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Once we establish a threshold standard, we can then determine whether Debano-Griffin’s reports
of improper transfers and of possible accounting irregularities met that standard.
III. Establishing The Standard
At the outset, I must agree with the dissent that there are a “dizzying array of laws,
regulations[,] and rules promulgated by a multiplicity of government units at every level within
the United States.”8 I further agree that few, if any, employees will know about these laws or
their specific provisions. Thus, we cannot establish a standard that would require an employee to
make a specific reference, by title or section number, to the law or laws that the employee knows
or suspects is being violated. To do so would be to deny the protections of the Act to all but the
most technically knowledgeable laypersons and lawyers.
But it is also evident, as I outlined above, that referring to “good rules to follow,”
“governing rules to follow,” or “whatever” will not suffice. In order for an employee to engage
in protected activity under the Act, there must be some recognizable, and articulated, connection
between the known or suspected violation that the employee reports and an actually and
contemporaneously existing law.
But how should we describe the specificity with which the employee must describe that
connection? The concept of notice gives us some direction. This Court has held that an
employer is entitled to notice of a report or threat to report of a whistleblower.9 And that notice
must be objective.10 Using this notice concept, we can reason that, to be protected under the Act,
an employee must provide a description of the connection between the known or suspected
violation that the employee reports and an actually and contemporaneously existing law that
would give notice to an objectively reasonable employer of both the known or suspected
violation and the actually and contemporaneously existing law.
Using this standard, can we say that the reports Debano-Griffin gave concerning the
transfers of ambulance fund money were sufficient to give notice to an objectively reasonable
employer of the connection between the known or suspected violations and an actually and
contemporaneously existing law? The answer must be no.
Giving every possible benefit of the doubt to Debano-Griffin, an objectively reasonable
employer might conclude that her reports of “improper’ transfers” and “possible accounting
irregularities” rose to the level of known or suspected violations. But there is nothing in the
record to substantiate that Debano-Griffin went any further. While Debano-Griffin’s Second
Amended Complaint asserted that she reported and complained that the re-direction of
ambulance millage funds was “illegal,” in her deposition she was at a loss to describe what
8
Post at ___.
9
See Roultson v Tendercare, Inc, 239 Mich App 270, 279; 608 NW2d 525 (2000); Roberson v
Occupational Health Centers of America, Inc, 220 Mich App 322, 326; 559 NW2d 86 (1996);
Kaufman & Payton, PC v Nikkila, 200 Mich App 250, 257; 503 NW2d 728 (1989).
10
Roultson, supra at 279; Roberson, supra at 326; Kaufman & Payton, supra at 257.
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illegality occurred, other than to assert that the transfer was “not what the voters voted on.” An
assertion at this level of generality is simply not sufficient to put an objectively reasonable
employer on notice of a violation of an actually and contemporaneously existing law.
On appeal, Debano-Griffin asserts that there are several laws that the transfers may have
violated. In particular, she points to MCL 750.490 (providing for the “safe keeping of public
monies” and stating that no public officer “shall, under any pretext, use or allow to be used, any
such monies for any purpose other than in accordance with the provisions of law”), MCL
750.489 (pertaining to “false statements of public finance and transfer of same” and making it a
misdemeanor for any agent of any county “who shall transfer or juggle the funds of the state or
any municipal division thereof”), and MCL 141.439 (providing that counties may only spend
money that have budgeted pursuant to that act).
While the lead opinion declines to consider these statutes because Debano-Griffin has
raised them for the first time on appeal,11 I do not see this as dispositive. Rather, as I see it, the
dispositive factor is that Debano-Griffin gave not a hint in the proceedings below as to how the
conduct that she reported had any connection, whether known or suspected, to any law. Thus,
while the Act does not require Debano-Griffin to prove an actual violation of law, it did require
her to give some description, even if expressed in the most basic terms, of an actual law that she
knew or suspected that Lake County and its Board of Commissioners had violated. Under an
objective standard, this she has failed to do.
Thus, I would conclude that, because Debano-Griffin, under an objective standard, failed
to establish that she was engaged in a protected activity under the Act, the trial court erred when
it denied summary disposition. I, therefore, concur with the lead opinion that this case be
reversed and remanded for an entry of an order granting the motion for summary disposition of
Lake County and its Board of Commissioners on Debano-Griffin’s claim under the Act.
/s/ William C. Whitbeck
11
Ante at ___.
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