MICHAEL W. DAVIDSON V. COMMONWEALTH OF KENTUCKY, DEPARTMENT OF MILITARY AFFAIRS
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October 22, 2004; 2:00 p.m.
TO BE PUBLISHED
Commonwealth Of Kentucky
Court Of Appeals
NO. 2003-CA-000615-MR
MICHAEL W. DAVIDSON
APPELLANT
APPEAL FROM FRANKLIN CIRCUIT COURT
HONORABLE WILLIAM L. GRAHAM, JUDGE
CIVIL ACTION NO. 01-CI-01499
V.
COMMONWEALTH OF KENTUCKY,
DEPARTMENT OF MILITARY AFFAIRS
APPELLEE
OPINION
AFFIRMING
** ** ** ** **
BEFORE:
MINTON, SCHRODER, AND TAYLOR, JUDGES.
MINTON, JUDGE:
Kentucky’s Whistleblower Act1 protects state
employees from reprisal for reporting actual or suspected agency
violations of the law.
Michael W. Davidson, an employee in the
state’s Department of Military Affairs, contended in the circuit
court that the agency asked him to resign and initiated an
investigation into allegations of misconduct and conflicts of
1
Kentucky Revised Statutes (KRS) 61.102.
interest to punish him for reporting violations of state law by
the Kentucky Cabinet for Natural Resources and Environmental
Protection (NREPC) in pending litigation he had against that
agency.
Specifically, Davidson alleged below that his
disclosure that NREPC’s hearing procedures violate state law
cost him his job.
On appeal, he contends that the circuit court
misunderstood his disclosure: he actually disclosed to the
circuit court the retaliatory personnel action by Military
Affairs against him.
We hold that the circuit court did not
misunderstand the claimed disclosure.
We further hold that
Davidson’s disclosure, even if true, is not protected by the
whistleblower statute because it was already publicly known
information.
FACTUAL BACKGROUND AND PROCEEDINGS IN CIRCUIT COURT
Davidson is an officer of the Wind River Energy
Corporation.
On multiple occasions since 1995, NRECP has cited
Wind River and Davidson for violating Kentucky’s mining laws.
In response, Wind River has filed a series of civil actions2 in
Franklin Circuit Court asserting that the hearing procedures for
Natural Resources constitute an abuse of authority and violate
state law.
2
In 1999, NREPC filed suit in Franklin Circuit Court
Appellee’s Brief at 8 n.4 (setting forth names and case numbers
of these civil actions).
2
to have its citations against Davidson and Wind River enforced.3
When the circuit court entered summary judgment in the instant
case, some of the Wind River/NREPC suits were still pending.
In 1998, Davidson took leave from his state employment
at Military Affairs for active military duty with the United
States Army.
On August 1, 2001, he resumed state employment
with Military Affairs in the Office of the Adjutant General.4
One of Davidson’s job duties was to serve as a liaison with the
Governor’s Office.
On or about August 1, 2001, Davidson told
Adjutant General John R. Groves that he wanted to speak to
Andrew “Skipper” Martin, the Governor’s Chief of Staff, to see
if Martin could “get Bickford off [Davidson’s] back.”
Bickford was then the Secretary of NREPC.
James
Davidson does not
deny making this statement but denies that he expressed any
intent to use his position to obtain political influence from
the Governor’s Office to intervene in his dispute with NREPC.
On August 6, 2001, Davidson was called to a meeting with Groves
and Daniel F. Egbers, General Counsel of the Personnel Cabinet,
and was asked to consider resigning because of his ongoing legal
dispute with NREPC.
Two days later, he was placed on paid leave
3
Id.
4
Both parties agree that Davidson was entitled to reemployment
rights following his military leave under state and federal law.
See 38 USC §§ 4311, et seq.; KRS 61.371-61.379; 101 KAR 1:395.
3
pending an investigation of allegations of misconduct and
conflicts of interest.
On September 26, 2001, Davidson moved to file an
amended answer in the enforcement action filed by NREPC, adding a
counterclaim alleging a violation of the whistleblower statute.
Davidson alleged that Military Affairs had asked him to resign
and had initiated an investigation into baseless allegations of
misconduct and conflicts of interest to punish him for reporting
actual or suspected violations of state law in his litigation
against NREPC and to discourage him from such reporting.
The
circuit court denied Davidson’s motion to add this counterclaim.
Egbers wrote a confidential memorandum5 summarizing the
findings of his investigation as follows: (1) Davidson “acted
inappropriately” by stating his intent to have the Governor’s
Chief of Staff intervene in his dispute with NREPC;
(2) Davidson’s part-time employment with a company which is preapproved and eligible for some Kentucky contracts creates the
real potential for a conflict of interest; (3) Davidson was
evasive in response to the questions posed during the course of
the investigation; and (4) Davidson made “frivolous allegations”
of an alleged whistleblower violation in the counterclaim against
NREPC.
5
Egbers concluded that these facts called into question
This report is undated, but the context of the report indicates
that it was written between September 26, 2001, and October 15,
2001.
4
whether Davidson possessed the judgment and integrity required by
his position as liaison to the Governor’s Office.
He recommended
that Davidson be reassigned to a position within Military Affairs
of equal grade and pay that required less judgment.
Davidson
rejects both the findings and conclusions of this investigation.
On October 16, 2001, Adjutant General D. Allen Youngman6 informed
Davidson that he would be reassigned to the Kentucky Commission
on Military Affairs.
On October 24, 2001, Davidson sent a draft of the
complaint in the instant action, which had not yet been filed, to
the Office of the Governor and to Youngman.
The allegations of
whistleblower statute violations in the draft complaint were
identical to those made in the earlier proposed counterclaim
against NREPC with the exception that the defendant was changed
from NREPC to Military Affairs.
Egbers responded to the draft
complaint with a letter to Davidson four days later stating that
the complaint lacked merit and that the Commonwealth would defend
itself vigorously, including seeking sanctions under CR7 11 if
Davidson filed the complaint.
On November 5, 2001, Davidson
filed the complaint in Franklin Circuit Court and resigned.
Military Affairs filed a motion for summary judgment, and
Davidson filed a motion for partial summary judgment on the issue
6
Adjutant General Youngman replaced Adjutant General Groves.
7
Kentucky Rules of Civil Procedure.
5
of liability.
The circuit court’s Opinion and Order granted
summary judgment for Military Affairs and denied summary judgment
to Davidson.
This appeal followed.
OUR REVIEW OF THIS CASE IS DE NOVO
Summary judgment is appropriate when there is no
genuine issue as to any material fact, and the moving party is
entitled to judgment as a matter of law.8
The standard of review
on appeal of a summary judgment is “whether the trial court
correctly found that there were no genuine issues as to any
material fact and that the moving party was entitled to judgment
as a matter of law.”9
The record must be viewed in the light
most favorable to the party opposing the motion, and any doubts
are to be resolved in his favor.10
Because factual findings are
not at issue, we do not need to defer to the trial court.11
Also, we may affirm the trial court for any reason supported by
the record.12
8
Kentucky Rules of Civil Procedure (CR) 56.03.
9
Scifres v. Kraft, Ky.App., 916 S.W.2d 779, 781 (1996).
10
Steelvest, Inc. v. Scansteel Service Center, Inc., Ky.,
807 S.W.2d 476, 480 (1991).
11
Id.
12
Kentucky Farm Bureau Mut. Ins. Co. v. Gray, Ky.App., 814 S.W.2d
928, 930 (1991).
6
In order to demonstrate a violation of KRS 61.102, an
employee must establish the following four elements:
(1) the
employer is an officer of the state; (2) the employee is
employed by the state; (3) the employee made or attempted to
make a good faith report or disclosure of a suspected violation
of state or local law to an appropriate body or authority; and
(4) the employer took action or threatened to take action to
discourage the employee from making such a disclosure or to
punish the employee for making such a disclosure.13
The employee
must show by a preponderance of evidence that “the disclosure
was a contributing factor in the personnel action.”14
The burden
of proof is then on the state employer “to prove by clear and
convincing evidence that the disclosure was not a material fact
in the personnel action.”15
The circuit court held that Davidson could not
establish a violation of KRS 61.102 for the following reasons:
(1) filing a lawsuit is not a means of making a protected
disclosure under the whistleblower statute; (2) Davidson had an
ulterior motive for making a disclosure; (3) Davidson did not
disclose the type of information which the statute was designed
13
Woodward v. Commonwealth, Ky., 984 S.W.2d 477, 480-81 (1998).
14
KRS 61.103(3). “Contributing factor” is further defined in
KRS 61.103(1)(b).
15
KRS 61.103(3).
7
to protect; and (4) Military Affairs did not take any action to
discourage Davidson from making a disclosure or to punish him
from doing so.
Davidson claims that the circuit court erred in
reaching each of these conclusions partly because it
misidentified the disclosure upon which Davidson relies.
This
alleged misidentification is connected to Davidson’s assertion
that the circuit court dismissed one claim in his suit without
consideration.
Indeed, he asserts that the circuit court erred
by not granting his motion for partial summary judgment based on
this claim.
Finally, Davidson asserts that this court should
set aside the summary judgment in favor of Military Affairs
because it ultimately resulted in the dismissal of his case
before the Personnel Board.
THE CIRCUIT COURT DID NOT MISIDENTIFIY THE DISCLOSURE
Davidson alleges that the circuit court misidentified
the relevant disclosure or disclosures upon which he bases his
whistleblower claim as the allegations raised in the numerous
Wind River lawsuits16 that the hearing procedures of Natural
Resources are an abuse of discretion and violate state law.
Davidson asserts that the protected report was actually the
counterclaim that he filed in the Natural Resources enforcement
16
This issue was raised both in the suits filed by Wind River
against Natural Resources and in those filed by Natural Resources
against Wind River and Davidson.
8
action in which he alleged retaliation by Military Affairs based
on his litigation against Natural Resources.
CR 8.06 states
that “[a]ll pleadings shall be construed so as to do substantial
justice.”
Kentucky’s highest court has stated, the principal
objective of a pleading is to give fair notice to the opposing
party of the essential nature of the claim.17
Nothing in
Davidson’s complaint gives fair notice of the allegation that he
now raises that his protected disclosure was the filing of the
counterclaim.
Instead, it is clear that his whistleblowing
claim is based solely on the theory of retaliation by Military
Affairs for his reporting the wrongdoing of NREPC in his
litigation against that agency.18
Davidson’s assertion that his complaint states a claim
for retaliation based on his disclosure of an earlier
whistleblowing violation by Military Affairs which he revealed
in the counterclaim does not hold up.
The retaliatory personnel
17
Lee v. Stamper, Ky., 300 S.W.2d 251, 253 (1957).
18
Plaintiff’s Compl. at ¶ 1. (“[Military Affairs] has threatened to
take and has taken adverse personnel actions against the
Plaintiff for bringing to the attention of Franklin Circuit Court
violations of state law and abuse of authority by the Cabinet for
Natural Resources and Environmental Protec-tion.”); id. at ¶ 2
(“Groves and Egbers requested Plaintiff’s resignation as a state
employee based, as a contributing factor, on pending litigation
with the Cabinet for Natural Resources and Environmental
Protection.”); id. at ¶ 3 (“On August 8, 2001, the Defendant
initiated an investigation into ‘allegations of misconduct and
conflicts of interest’ based, as a contributing factor, on the
Plaintiff’s litigation with the Cabinet for Natural Resources and
Environmental Protection.”)
9
actions which Davidson alleges Military Affairs took are the
same in the instant complaint as in the counterclaim filed in
the NREPC case: requesting his resignation and instituting an
investigation of him.
The same personnel actions that are the
basis for his counterclaim cannot then be the basis for new
alleged retaliation for filing the counterclaim.
We find no
error in the circuit court’s interpretation of the complaint,
including its identification of the relevant report or
disclosure upon which Davidson’s claims of retaliation are
based.
THE CIRCUIT COURT DID NOT OVERLOOK THE CR 11 THREAT
Davidson now asserts that Egbers’s threat to file
CR 11 sanctions was an attempt to dissuade him from filing this
suit and, hence, a personnel action prohibited by the
whistleblower statute.
Even if this were true, it does not help
Davidson in this appeal as he did not raise this issue in his
complaint.
Contrary to Davidson’s assertions, the inclusion of
the vague phrase that Military Affairs “has acted in such a way
as to discourage” reporting actual and suspected violations of
state law and abuse of authority19 is not sufficient to give fair
notice to Military Affairs that Davidson considered Egbers’s
19
Id. at ¶ 9.
10
mention of CR 11 sanctions to be a personnel action violating
KRS 61.102.20
Davidson asserts that the circuit court dismissed
without consideration that portion of his complaint that alleged
that Egbers’s threat to file CR 11 sanctions was an attempt to
dissuade him from filing this action and, hence, from reporting
a violation of state law.
Since we find that Davidson’s
complaint raised no such claim, this argument is without merit.
DAVIDSON’S MOTION FOR PARTIAL SUMMARY JUDGMENT
Davidson asserts that the circuit court erred by not
granting his motion for partial summary judgment on the issue of
liability “as to the threatened use of official action to
dissuade the pursuing of this whistleblower disclosure and
claim.”
Davidson identifies the “official action” as Egbers’s
threat, in response to the draft complaint, to file CR 11
sanctions if Davidson filed this action.
As previously noted,
however, Davidson did not raise this claim in his complaint.
He
may not escape summary judgment by raising allegations which he
might have made in his complaint but did not.
20
We find no error
We note, without deciding this matter, that there is some
question whether a threat to file CR 11 sanctions could
constitute a “personnel action” within the meaning of the
Kentucky whistleblower statute. See KRS 61.103(3). “Personnel
action” seems to suggest an action with consequences within the
scope of employment, not in the separate realm of the courtroom.
11
in the circuit court’s denial of Davidson’s motion for partial
summary judgment.
PROTECTED DISCLOSURES MAY BE MADE IN THE COURSE OF LITIGATION
The circuit court based its summary judgment, in part,
on the fact that Davidson’s allegations against the hearing
procedures of NREPC were made by filing a series of civil
actions against the agency.
The court stated, “[i]n Boykins v.
Housing Authority of Louisville, Ky., 842 S.W.2d 527 (1992), the
Kentucky Supreme Court declined to include the filing of a
lawsuit within the parameters of a ‘disclosure’ under the
Whistleblower statute.”
Boykins concerned an employee of the Housing Authority
of Louisville (HAL) who was fired after she filed a negligence
suit against HAL concerning injuries that her infant son
suffered in an apartment owned, operated, and managed by HAL.21
The Kentucky Supreme Court stated that KRS 61.102 was intended
“to protect employees from reprisal for the disclosure of
violations of the law.”22
Contrary to the circuit court’s
interpretation in the instant case, however, Boykins did not
establish a per se rule that a statement made in pleadings or in
the course of litigation could never be a protected report or
21
842 S.W.2d at 528.
22
Id. at 529.
12
disclosure under the statute.
Indeed, “the judiciary or any
member of the judiciary” are specifically included in KRS 61.102
as appropriate persons to whom to make a protected report.
The
Kentucky Supreme Court held that Boykins was not protected by
the whistleblower statute simply because she did not report or
disclose information which fell within the parameters of the
statute.23
KRS 61.102 protects reports of the following:
any facts or information relative to an
actual or suspected violation of any law,
statute, executive order, administrative
regulation, mandate, rule, or ordinance of
the United States, the Commonwealth of
Kentucky, or any of its political subdivisions, or any facts or information relative
to actual or suspected mismanagement, waste,
fraud, abuse of authority, or a substantial
and specific danger to public health or
safety.
The Kentucky Supreme Court stated, “[t]he gravamen of
[Boykins’s] suit was not intended as a report of information
regarding any alleged mismanagement or endangerment of public
health and safety by HAL, but was rather a simple negligence
action.”24
A report of simple negligence is not listed among the
types of information protected by the statute.
Hence, Boykins
was not protected by the whistleblower statute.
In contrast, Davidson alleged that the hearing
procedures of NREPC constitute an abuse of authority and violate
23
Id.
24
Id.
13
state law, both of which are included among the types of
disclosures protected by KRS 61.102.
To the extent that the
circuit court based its summary judgment on the belief that
Boykins categorically excludes persons making a disclosure in
the course of litigation from protection under the whistleblower
statute, it erred.
BOYKINS DOES NOT ADDRESS EMPLOYEES’POSSIBLE ULTERIOR MOTIVE
The summary judgment also seems to be based, in part,
on the circuit court’s conclusion that Davidson had an ulterior
motive for making his disclosure about NREPC.
The court noted
that Davidson’s litigation was filed in the shadow of citations
made by the agency against him and Wind River.
Echoing the
language of Boykins, the court stated that “the gravamen” of
Davidson’s allegation against NREPC “was to invalidate the fines
being levied against him.”
The circuit court cites Boykins as
authority for the proposition that an employee’s subjective
motivation for making a disclosure is relevant to whether it is
protected by the whistleblower statute.
Some states do require that an employee’s disclosure
be motivated purely by a sincere desire to expose the illegality
rather than any self-serving interest before it is entitled to
14
whistleblower protection.25
However, we do not read Boykins as
expressing any position on this issue.
Indeed, we do not find
that the Kentucky courts have ever addressed whether an
employee’s motivation for making a report is relevant under
KRS 61.102.
Since we affirm the circuit court’s granting of
summary judgment on other grounds, we decline to address this
issue now.
REPORT OF PUBLICLY KNOWN INFORMATION IS NOT PROTECTED DISLOSURE
The circuit court also held that Davidson’s actions
were not within the scope of the whistleblower statute because
he did not disclose the type of information which is protected
by the statute.
The Kentucky courts have not specifically
addressed what constitutes a “report” within the meaning of
KRS 61.102.
However, the Kentucky Supreme Court has stated that
KRS 61.102 is “similar in almost every respect” to the federal
25
See, e.g., Parsells v. Manhattan Radiology Group, L.L.P.,
255 F.Supp.2d 1217, 1236 (D.Kan. 2003) (holding that Kansas’s
common law tort of retaliatory discharge requires that “the
‘whistle-blowing’ must have been done out of a good faith concern
over the wrongful activity reported rather than a [sic] from a
corrupt motive such as malice, spite, jealousy or personal
gain”); Obst v. Microtron, Inc., 614 N.W.2d 196, 202 (Minn. 2000)
(interpreting Minnesota’s whistleblower statute, Minn. Stat. Ann.
§ 181.932(1)(a), to require an examination not only into the
contents of the report but also into why the employee made the
report).
15
whistleblower statute.26
So we may look to federal precedent for
guidance on this issue.
In Meuwissen v. Department of Interior, the United
States Federal Court of Appeals, Federal Circuit, held that “[a]
disclosure of information that is publicly known is not a
disclosure” within the meaning of the federal Whistleblower
Protection Act.27
Meuwissen was an administrative law judge
within the Department of Interior who was assigned a case which
required him to interpret a provision of a federal act.
The
statutory provision had previously been interpreted in a case by
Meuwissen’s predecessor, with that interpretation subsequently
being upheld as constitutional by the 8th Circuit Court of
Appeals.
Meuwissen informed his superior that he did not intend
to follow the precedent because he found the earlier case’s
interpretation of the act contrary to its purpose and erroneous.
He then issued an opinion overturning the previous
interpretation of the act.
He was fired.
was fired for whistleblowing.
He claimed that he
The court held that he was not
protected by the federal whistleblower statute because he did
not disclose any information which was not already known.
The
court stated, “[t]he purpose of the WPA is to protect employees
26
Commonwealth Dept. of Agriculture v. Vinson, Ky., 30 S.W.3d 162,
169 (2000).
27
234 F.3d 9, 13 (2000).
16
who possess knowledge of wrongdoing that is concealed or not
publicly known, and who step forward to help uncover and
disclose that information.”28
The court found that the conduct
which Meuwissen purported to disclose, the agency’s
interpretation of the act, was already well-known as it had been
the subject of two previous decisions.29
The instant case presents a similar situation.
Davidson reported to the Franklin Circuit Court, on several
occasions, that the hearing procedures for NREPC are an abuse of
authority and violate state law.
However, he did not report
anything about these procedures which was not already known,
such as secretive agency procedures.
These hearing procedures
are set forth in statutes and administrative regulations.
Regardless of the merits of Davidson’s allegations against
NREPC, we concur with the circuit court that his allegations
against the agency do not constitute a report or disclosure that
is protected by the whistleblower statute.
Since Davidson
cannot meet an element essential to establishing his
whistleblower claim, the circuit court properly granted summary
judgment in favor of Military Affairs.
28
Meuwissen, 234 F.3d at 13.
29
Id. at 12-13. See also, Obst, 614 N.W.2d at 203 (holding that an
employee’s revelation of information that was “openly known and
acknowledged” could not be a good faith report under the
applicable Michigan whistleblower statute).
17
APPROPRIATENESS OF REASSIGNMNET NOT PROPER GROUNDS
As a third reason for granting summary judgment to
Military Affairs, the circuit court stated that Military
Affairs’s “decision to reassign the Plaintiff was not
‘retaliation.’”
The court stated that Davidson’s position
required good judgment; and, based on the investigation and
Egbers’s appraisal, Military Affairs believed that Davidson
could not effectively serve as a liaison to the Governor’s
Office.
Citing a federal case30 for the proposition that mere
critical appraisal of an employee by a supervisor is not a
whistleblower violation, the court concluded that Military
Affairs did not violate KRS 61.102 by reassigning Davidson.
This is not a conclusion which the court may reach at the
summary judgment stage.
Davidson asserts that the investigation
was itself retaliation for whistleblowing because it was
baseless and was designed just to punish him.
disputes the findings of the investigation.
Moreover, he
Clearly, there are
genuine issues of material fact regarding this matter.
Thus,
basing summary judgment on the ground that Davidson’s
reassignment was allegedly justified by Egbers’s investigation
was error.
30
Herman v. Department of Justice, 193 F.3d 1375, 15 IER Cases 1162
(Fed. Cir. 1999).
18
DISMISSAL OF CASE BEFORE PERSONNEL BOARD
Davidson also asserts that this Court should overturn
the circuit court’s summary judgment because the Personnel Board
relied, in part, upon the summary judgment in dismissing
Davidson’s administrative actions.
If Davidson seeks relief
from the Personnel Board’s decision, he may follow the proper
procedures to appeal that decision.
The collateral consequences
of the circuit court’s decision in an unrelated administrative
proceeding are not a proper matter for consideration by this
Court.
And we decline to address it.
CONCLUSION
For the forgoing reasons, we affirm the Franklin
Circuit Court’s opinion and order of February 25, 2003, granting
the motion for summary judgment of Military Affairs and denying
Davidson’s motion for partial summary judgment.
ALL CONCUR.
BRIEF AND ORAL ARGUMENT FOR
APPELLANT:
BRIEF AND ORAL ARGUMENT FOR
APPELLEE:
Michael W. Davidson, Pro se
Louisville, Kentucky
Donald L. Cox
Mary Janice Lintner
Louisville, Kentucky
19
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