In my never-ending search for ways to protect the free speech rights of employees, I have recently developed a legal theory that I think has a lot of promise.
The problem: the law protecting internal whistleblowers in state/local government is weak or nonexistent
The problem is that, as discussed in a prior post, a government employee's whistleblowing up the chain of command is not protected by the First Amendment of the U.S. Constitution. And as discussed in another post, only official discipline is considered retaliation under the First Amendment. There is a Mississippi Whistleblower Protection statute, but it also only applies to a small category of protected speech - typically reports to specific public officials like the AG, DA, etc. that most whistleblowers never think to call.
After all, most government employers have strict (and illegal) rules prohibiting reporting misconduct outside the Agency, and act as if they have an
open door policy (whatever that means) for reporting up the chain of command or to HR. (Guess what, it's a trap!) Which means that most whistleblowers have only made their reports internally. There are a lot of serious limits on our ability to protect these whistleblowers in state and local government using the U.S. Constitution.
The solution: McArn plus Miss. Code § 97-9-127
In Mississippi, the tort of
wrongful discharge is named after the caseMcArn v. Allied Bruce-Terminix Co., Inc., 626 So. 2d 603 (Miss. 1993). Under theMcArn doctrine, as subsequently developed, it is tortious to terminate any person’s employment because the employee reported a crime - either internally or externally. Morris v. CCA of Tenn., LLC, (Cause No. 3:15-CV-00163-MPM-RP)(N.D. Miss. May 16, 2017).
So far so good. That solves the problem for reports up the chain of command. These are protected by McArn. But the trouble is that most such reports by whistleblowers are not necessarily of a
crime - at least, you would not think so initially.
But what is very common is that the whistleblower makes a first report of misconduct, is threatened by the supervisor, and then reports both the threat and the original misconduct further up the chain. The key point here is that now we just may have a protected report of a crime on our hands. The key question is what the
threat was. If the thing threatened is
unlawful - not necessarily criminal - then the threat is a crime. If the employee is later fired, there may be a real McArn claim.
The crime is
Retaliation, Miss. Code § 97-9-127. It is much, much broader than retaliation is under the First Amendment.
A person commits the offense of retaliation if he intentionally or knowingly harms or threatens to harm another by any unlawful act in retaliation for anything lawfully done in the capacity of public servant, witness, prospective witness or informant. Retaliation is a Class 2 felony. Young v. State, 119 So. 3d 309 (Miss 2013) (holding that the threat itself need not be unlawful, so long as the threat is to do an unlawful act);Wilcher v. State, No. 2015-KA-01008-SCT (Miss. March 23, 2017) (upholding statute from constitutional challenge). In the statute,
threats are defined as
any menace, however communicated and
harm is defined as
loss, disadvantage or injury, or anything so regarded by the person affected. This would clearly include threats to fire or discipline. (It may be possible to use the statute more directly to establish a public policy exception for terminations for reporting non-crimes as applicable to public employees.) As one court said,
[i]n the court's view, this state law authority may well buttress plaintiff's state law claim that his termination was in violation of Mississippi public policy.Boisseau v. Town of Walls, Miss., 138 F. Supp. 3d 792, 808 (N.D. Miss. 2015). And the employee does not necessarily have to know about the statute to benefit from it, as long as he makes a
good faith allegation of
retaliation. Roop v. S. Pharm. Corp., 188 So. 3d 1179, 1188 (Miss. 2016). Though it still isn't airtight by any means, it solves many of the key problems with the First Amendment and McArn cases.
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