GARY A BROWN V MAYOR OF DETROIT
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Michigan Supreme Court
Lansing, Michigan
Opinion
Chief Justice:
Justices:
Clifford W. Taylor
Michael F. Cavanagh
Elizabeth A. Weaver
Marilyn Kelly
Maura D. Corrigan
Robert P. Young, Jr.
Stephen J. Markman
FILED JULY 11, 2007
GARY A. BROWN and HAROLD C.
NELTHROPE,
Plaintiffs-Appellees/CrossAppellants,
v
Nos. 132016, 132017
MAYOR OF DETROIT and CITY OF
DETROIT,
Defendants-Appellants/CrossAppellees.
BEFORE THE ENTIRE BENCH
CAVANAGH, J.
We granted oral argument on the applications for leave to appeal and leave
to file a cross-appeal in this case to determine whether an employee of a public
body must report violations or suspected violations to an outside agency or higher
authority to be protected by the Whistleblowers’ Protection Act (WPA), MCL
15.361 et seq. Because there is no language in the statute that indicates such a
requirement, we hold that the WPA does not require that an employee of a public
body must report violations or suspected violations to an outside agency or higher
authority to receive the protections of the WPA. We further hold, again on the
basis of the statutory language, that there is no requirement that an employee who
reports violations or suspected violations only receives the protections of the WPA
if the reporting is outside the employee’s job duties. Accordingly, we affirm in
part the opinion of the Court of Appeals, but we vacate that portion of the opinion
that holds that there is question of fact concerning whether plaintiff Harold
Nelthrope reported allegations to the Federal Bureau of Investigation (FBI)
because Nelthrope admitted in his deposition that he did not make this report.
I. FACTS AND PROCEEDINGS
Plaintiff Harold Nelthrope was a detective in the Executive Protection
Unit (EPU) of the Detroit Police Department before he was transferred.
Nelthrope reported allegations of illegal conduct and misconduct by fellow EPU
officers and by Detroit Mayor Kwame Kilpatrick and his wife to the police
department’s Professional Accountability Bureau.
These allegations were
summarized in a memorandum. Plaintiff Gary Brown, the deputy chief of the
Professional Accountability Bureau, authorized a preliminary investigation into
these allegations and prepared another memorandum regarding Nelthrope’s
allegations. This memorandum was given to the police chief and then passed
along to the mayor’s office. After the memorandum was submitted, Brown was
discharged from his position as deputy chief of the EPU.
Members of the
mayor’s office then identified Nelthrope as being the source of the allegations of
misconduct to the media, and the mayor publicly called Nelthrope a liar.
2
Brown and Nelthrope filed complaints against the city of Detroit and
Mayor Kilpatrick, asserting claims of slander and violations of the WPA.
Nelthrope also sued for intentional infliction of emotional distress. The circuit
court granted the city’s motion for summary disposition of the slander claims on
the basis of governmental immunity, but denied the mayor’s motion for summary
disposition of the slander claims.
It also denied defendants’ motions for
summary disposition of the WPA claims. It also granted Nelthrope’s motion for
partial summary disposition of the WPA claim, leaving only the issue of damages
for the jury.
The Court of Appeals issued a published opinion that affirmed in part,
reversed in part, and remanded for further proceedings. It reversed the circuit
court’s denial of the mayor’s motion for summary disposition of the slander
claims and reversed the circuit court’s grant of partial summary disposition to
Nelthrope on his WPA claim. Brown v Detroit Mayor, 271 Mich App 692; 723
NW2d 464 (2006). This Court granted oral argument on the applications for
leave to determine whether an employee of a public body must report to an
outside agency or higher authority to be protected by the WPA. 477 Mich 1011
(2007).
II. STANDARD OF REVIEW
The proper interpretation of a statutory provision is a question of law that
this Court reviews de novo. Lincoln v Gen Motors Corp, 461 Mich 483, 489-490;
607 NW2d 73 (2000).
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III. ANALYSIS
This case involves an issue of statutory interpretation. The primary goal of
statutory interpretation is to give effect to the intent of the Legislature. In re MCI
Telecom Complaint, 460 Mich 396, 411; 596 NW2d 164 (1999). The first step is
to review the language of the statute.
Id.
If the statutory language is
unambiguous, the Legislature is presumed to have intended the meaning expressed
in the statute and judicial construction is not permissible. Id.
MCL 15.362 of the WPA provides:
An employer shall not discharge, threaten, or otherwise
discriminate against an employee regarding the employee’s
compensation, terms, conditions, location, or privileges of
employment because the employee, or a person acting on behalf of
the employee, reports or is about to report, verbally or in 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, unless the employee
knows that the report is false, or because an employee is requested
by a public body to participate in an investigation, hearing, or
inquiry held by that public body, or a court action. [Emphasis
added.][1]
MCL 15.361(d) provides:
“Public body” means all of the following:
(i) A state officer, employee, agency, department, division,
bureau, board, commission, council, authority, or other body in the
executive branch of state government.
1
MCL 15.361(a) provides: “‘Employee’ means a person who performs a
service for wages or other remuneration under a contract of hire, written or oral,
express or implied. Employee includes a person employed by the state or a
political subdivision of the state except state classified civil service.”
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(ii) An agency, board, commission, council, member, or
employee of the legislative branch of state government.
(iii) A county, city, township, village, intercounty, intercity,
or regional governing body, a council, school district, special
district, or municipal corporation, or a board, department,
commission, council, agency, or any member or employee thereof.
(iv) Any other body which is created by state or local
authority or which is primarily funded by or through state or local
authority, or any member or employee of that body.
(v) A law enforcement agency or any member or employee
of a law enforcement agency.
(vi) The judiciary and any member or employee of the
judiciary.
The statutory language in this case is unambiguous. The WPA protects an
employee who reports or is about to report a violation or suspected violation of a
law or regulation to a public body. MCL 15.362. The language of the WPA does
not provide that this public body must be an outside agency or higher authority.
There is no condition in the statute that an employee must report wrongdoing to an
outside agency or higher authority to be protected by the WPA.2 In this case,
Nelthrope and Brown reported their allegations of suspected violations to a public
body. Nelthrope reported the suspected violations to the police department’s
2
We disapprove of dictum in a footnote that suggested the contrary in
Dudewicz v Norris Schmid, Inc, 443 Mich 68, 77 n 4; 503 NW2d 645 (1993). The
statement was dictum because it was unnecessary to the decision of the case. See
Wold Architects & Engineers v Strat, 474 Mich 223, 232 n 3; 713 NW2d 750
(2006). We also caution that to the extent that caselaw has followed this footnote,
it is overruled. See, e.g., Heckmann v Detroit Chief of Police, 267 Mich App 480,
495-496; 705 NW2d 689 (2005).
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Professional Accountability Bureau, and Brown reported the suspected violations
to the chief of police. A “public body” includes a “law enforcement agency or any
member or employee of a law enforcement agency.” MCL 15.361(d)(v). It does
not matter if the public body to which the suspected violations were reported was
also the employee’s employer.
While we affirm the Court of Appeals conclusion that defendants were not
entitled to summary disposition on whether Nelthrope and Brown were engaged in
protected activity under the WPA, we note that the Court’s analysis of this issue
addressed whether plaintiffs indeed reported the suspected violations to an outside
agency. Because this requirement does not exist in the statute, it was unnecessary
for plaintiffs to do so. Moreover, we vacate the Court’s holding that it should be
left to a jury to determine if Nelthrope reported the suspected violations to the
FBI, because this holding is not supported by the facts.
In his deposition,
Nelthrope admitted that he did not report his concerns to the FBI.3 Thus, because
of Nelthrope’s admission, there is no factual question left regarding whether
Nelthrope contacted the FBI. However, because the WPA does not require that a
3
Q.
Mr. Nelthrope, did you ever go to the FBI and report
any of these matters pertaining to the Police Department?
A.
No, I did not.
Q.
Or the Mayor?
A.
No, I did not.
6
report be made to an outside agency, Nelthrope’s admission does not affect
whether he can proceed with his WPA claim.
Finally, there is also no language in the statute that limits the protection of
the WPA to employees who report violations or suspected violations only if this
reporting is outside the employee’s job duties.
The statute provides that an
employee is protected if he reports a “violation or a suspected violation of a law or
regulation or rule . . . .” MCL 15.362. There is no limiting language that requires
that the employee must be acting outside the regular scope of his employment.
The WPA protects an employee who reports or is about to report a violation or
suspected violation of a law or regulation to a public body. The statutory language
renders irrelevant whether the reporting is part of the employee’s assigned or
regular job duties.
IV. CONCLUSION
The WPA does not require that an employee of a public body must report
violations or suspected violations to an outside agency or higher authority to
receive the protections of the WPA. Further, the WPA does not provide that an
employee who reports violations or suspected violations only receives the
protections of the WPA if the reporting is outside the employee’s job duties.
Accordingly, we affirm in part the opinion of the Court of Appeals, but we vacate
that portion of the opinion that holds that there is question of fact regarding
whether plaintiff Nelthrope reported allegations to the FBI. Because Nelthrope
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has admitted that he did not contact the FBI, there is not a factual question
regarding this issue that remains to be decided by a jury.
Affirmed in part and vacated in part.
Michael F. Cavanagh
Clifford W. Taylor
Elizabeth A. Weaver
Marilyn Kelly
Maura D. Corrigan
Robert P. Young, Jr.
Stephen J. Markman
8
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