N.C. law prohibits state agencies from firing employees for reporting governmental wrongdoing. In a ruling Aug. 19, the N.C. Supreme Court clarified the operation and protection of the state’s Whistleblower Act, finding that lower state courts had applied the provisions too narrowly. The case involved a state trooper who was fired after he submitted an amended report detailing the possible excessive use of force by other troopers in an arrest.
On May 14, 2000, Trooper Reginald Newberne of the N.C. Highway Patrol arrived at the scene after three other troopers had arrested a drunken-driving suspect. One of the officers, Trooper P. A. Collins, told Newberne that he had hurt his hand when he hit the suspect and that another officer had “pulled it back in place.”
The father of the man arrested for drunken driving filed a complaint the next day alleging that the three troopers had used excessive force in the arrest. As part of the ensuing investigation, Newberne’s supervisor, First Sgt. A. C. Combs, asked him about the incident. Newberne said that he arrived only after the arrest, had not witnessed anyone using excessive force, and that Collins apparently had injured his hand. In a written statement, Newberne literally complied with Combs’ instructions to describe what he “saw,” and fearful that he might be “breaking the code of silence” and would be subject to retaliation by Combs or other troopers, did not include what he had heard.
A week later, and after discussing the matter with another trooper and weighing his desire to “do the right thing” against his fear of reprisal, Newberne filed an amended statement. It included what Collins allegedly said to him, including, “I hit the subject and jammed my hand” and, “It just happened, I should know better.”
On April 10, 2001, Newberne was fired from the Highway Patrol ostensibly for violating its “Truthfulness Directive” in filing an incomplete original statement containing only what he saw but not what he heard about the possible excessive use of force. Though several troopers were punished as a result of the original incident, Newberne was the only trooper terminated.
In April 2002, Newberne sued, contending that his dismissal was improper and violated the state’s Whistleblower Act. Judge Henry W. Hight, Jr. dismissed the suit before trial, finding that Newberne’s own actions in filing a less-than-complete initial statement were inconsistent with a whistleblower claim. The Court of Appeals upheld the rejection of the whistleblower claim.
The N.C. Supreme Court, however, unanimously found that dismissing the suit before trial was unwarranted. In doing so, it expressly rejected the Department of Crime Control & Public Safety’s claim that Newberne’s actions fell outside the scope of the Whistleblower Act.
“As an initial matter, even assuming plaintiff’s initial report contained ’misleading inaccuracies,’ we do not agree with defendants’ contention that any ‘admission of untruthfulness’ on the part of the plaintiff necessarily constitutes ’a complete bar to recovery’ under the Whistleblower Act”, Justice Mark Martin wrote for the high court.
“The Whistleblower Act prohibits employment retaliation against a state employee who files a report alleging certain categories of misconduct or mismanagement by other state employees or agencies ’unless the State employee knows or has reason to believe that the report is inaccurate.’ The plain meaning of this proviso is that the Act does not apply to employees who make allegations of mismanagement or wrongdoing that they know or should know to be false. In other words, the Act does not protect false whistleblowing allegations, unless the plaintiff had no reason to know of their falsehood. Nothing in the language or legislative history of the Act suggests that the General Assembly intended to render the Act inapplicable when an employee’s whistleblowing allegation appears in a supplemental or amended report, rather than an initial report. Indeed, such a construction would undermine the legislatively declared policy of this state that the reporting of various forms of governmental mismanagement and wrongdoing shall be ’encouraged.’ Moreover, as a simple matter of logic, the failure to make an allegation of wrongdoing in an initial report does not render an amended or supplemental report which contains such an allegation ‘inaccurate’ under N.C.G.S. § 126-85(a).
“More importantly, defendants’ assertion that the ‘lying and misleading inaccuracies’ in plaintiff’s initial report were the true reason for plaintiff’s dismissal is merely a factual allegation — one that is directly contradicted by the factual allegations in plaintiff’s complaint. In ruling on a motion to dismiss pursuant to Rule 12(b)(6), a trial court must ‘take all allegations of fact in the complaint as true.’ Although plaintiff acknowledged in his complaint that the professed reason for his dismissal was his purported violation of the Truthfulness Directive, he also expressly alleged that the actual reason for his termination was his disclosure of a possible abuse of authority in his amended statement. Specifically, plaintiff alleged that ’[d]efendants discharged [p]laintiff because [p]laintiff reported to his superiors, both verbally and in writing, information in the Amended Statement that supports a contention that the [t]roopers violated State or federal law, rule or regulation and exercised gross abuse of authority in the apprehension and arrest of Owen Nichols.’ Accordingly, plaintiff has stated a claim for relief under N.C.G.S. § 126-84(a)(1) and (5), and the Court of Appeals erred in affirming the dismissal of plaintiff’s whistleblower claim.’” (Emphases in decision.)
The high court also specified the analytical framework that North Carolina courts should use in future whistleblower cases.
The case is Newberne v. Department of Crime Control & Pub. Safety, (75A05).
http://www.aoc.state.nc.us/www/public/sc/opinions/2005/075-05-1.htm
Michael Lowrey is associate editor of Carolina Journal.