In Brown v. City of Inglewood, the Supreme Court today holds that a city’s elected treasurer can’t maintain a lawsuit under a whistleblower protection statute (Labor Code section 1102.5) that bars employers from retaliating against an employee who has disclosed unlawful conduct. The unsuccessful plaintiff, Inglewood’s treasurer, claimed the city took various actions against her for reporting that the mayor had approved an overpayment to a city contractor.
The court’s unanimous opinion by Justice Martin Jenkins finds the statutory text inconclusive and looks to context and legislative history, which, the court says, show the relevant definition of “employee,” “which does not reference elected officials or officers, was meant to exclude elected officials such as [the plaintiff].” According to the court, the “legislative focus [is] on protecting rank-and-file public workers from the retaliation of supervisors or managers” instead of protecting elected officials who “report to the electorate rather than managers or supervisors in a conventional sense.”
The court finds it to be a “reasonable policy approach” to “[p]rovid[e] maximal protection for elected officials who speak out to blow the whistle on government wrongdoing.” On the other hand, the court concludes, “any retaliation that elected officials face is likely to come, as alleged here, from official acts of elected colleagues who are themselves subject to the electorate’s retention or dismissal through the ballot box. The Legislature . . . might reasonably wish to channel such intramural disputes to the electoral process rather than the courtroom.”
The court does, however, leave open the possibility of a government official suing for a violation of their First Amendment rights by alleging they were subjected to retaliatory actions for engaging in protected speech. “Such claims,” the court states, “when brought by elected officials, might vindicate not only those officials’ own First Amendment rights, but also the franchise of their constituents.” It also notes that “challenges may be possible to municipal actions that destroy an office established by law.”
The court affirms the unpublished opinion of the Second District, Division One, Court of Appeal.
