Fox v. City of Bowling Green

[This opinion has been published in Ohio Official Reports at 

76 Ohio St.3d 534

.]




       FOX, APPELLEE, v. CITY OF BOWLING GREEN ET AL., APPELLANTS.
                  [Cite as Fox v Bowling Green, 

1996-Ohio-104

.]
Employment relations—Whistleblower protection—It is sufficient that an
        employee had a reasonable belief that a co-worker violated a statute, city
        ordinance, work rule, or company policy to gain protection of R.C.
        4113.52(A)(3).
To gain the protection of R.C. 4113.52(A)(3), an employee need not show that a
        co-worker had actually violated a statute, city ordinance, work rule, or
        company policy; it is sufficient that the employee had a reasonable belief
        that a violation occurred.
   (No. 94-2544—Submitted January 24, 1996—Decided September 4, 1996.)
       APPEAL from the Court of Appeals for Wood County, No. 94WD009.
                                  __________________
        {¶ 1} Prior to June 1992, appellee William A. Fox was a lieutenant in the
appellant city of Bowling Green’s police department, where he was assigned as
municipal court officer and division property officer in charge of cataloging and
storing evidence and property brought in by police officers. Sometime in April or
May 1992, Captain Thomas Votava, the administrative officer who assists the
police chief, told Fox to arrange for the disposal of outdated tear gas canisters which
were stored in the public armory.
        {¶ 2} Fox began making inquiries about the disposal of the tear gas
canisters. He contacted two landfills and learned that the landfills could not accept
the materials because of regulations on their disposal. Fox also contacted a
company in Findlay, Ohio which specialized in the disposal of hazardous materials
and was informed that the approximate cost of disposing of the materials was $55
per unit and that a permit was required to dispose of the materials. Furthermore,
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the company told Fox that disposal had to be made a mile-and-a-half away from
people and suggested that a quarry site be found. The Findlay company later
informed Fox that it could not find a safe site for the disposal, and asked Fox if he
would try to find one. Fox reported this information to Captain Votava.
       {¶ 3} On June 4, 1992, Fox learned that a woman had called the Bowling
Green police complaining of “gun shots” and a cloud of some substance in the air
near the city armory. Fox learned or overheard from the dispatchers that Captain
Votava and another officer were shooting off tear gas canisters.
       {¶ 4} Captain Votava and Lieutenant Thomas Brokamp testified by
deposition that they had removed several tear gas canisters from the armory and
took them to a vacant field behind the public service garage used by the street
department. The local airport, the city service building, a recycling center, and a
trailer park were all nearby. Captain Votava and Lieutenant Brokamp discharged
the tear gas canisters either by throwing them, shooting them from gas guns, or
shooting at them with their service revolvers. After all the canisters were empty,
Captain Votava and Lieutenant Brokamp picked up all the casings, put them in a
trash bag and returned to police headquarters, where they deposited the empty
casings into the trash dumpster.
       {¶ 5} On June 5, 1992, Fox prepared a written report in which he noted his
concern about the method of tear gas disposal chosen by Captain Votava and
Lieutenant Brokamp. Fox personally presented his written report to Bowling
Green’s safety director, Colleen Smith, and told her that he was afraid that, as
property officer, he could be held responsible for the removal of the tear gas
canisters. Furthermore, Fox told the safety director that he believed some laws may
have been violated in the disposal of the canisters.
       {¶ 6} The safety director contacted the chief of police, Galen Ash, to inquire
into the disposal of the tear gas. The chief had approved the plans to destroy the
tear gas. He told the safety director to contact Captain Votava about the disposal,




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and then contacted Fox and told him that he should not concern himself further with
the tear gas incident.
       {¶ 7} Captain Votava prepared a written report, which was submitted to the
safety director and the chief of police. Captain Votava implied that he and
Lieutenant Brokamp had done nothing wrong and further stated that Fox was not
performing adequately as the property officer. Captain Votava also stated that an
EPA official had investigated the incident and advised Votava to discharge the gas
in another location “to avoid future complaints.”
       {¶ 8} Fox submitted a written response to Captain Votava’s report and
submitted a copy to the safety director and the chief of police. The chief of police
called Fox into his office and reprimanded Fox for failing to leave the matter alone
as instructed. Fox testified that the chief threatened to assign Fox more duties if
Fox persisted in his involvement with the incident.
       {¶ 9} The safety director met with Captain Votava and Lieutenant Brokamp
and determined that they had done nothing wrong in disposing of the tear gas.
Neither officer was disciplined.
       {¶ 10} On June 30, 1992, Fox was reassigned to new job duties that were to
be effective July 20, 1992. While Fox’s rank and pay remained the same, he
believed the move was a demotion. Fox now worked the graveyard shift, his duties
involved mostly paperwork, and he reported to a sergeant.
       {¶ 11} A Bowling Green police officer testified in a deposition that
Lieutenant Brokamp had stated that Fox was reassigned because he blew the
whistle on the Bowling Green police department. The chief of police, the safety
director, and Captain Votava all testified that Fox’s reassignment was motivated by
a reduction in his duties as court officer rather than in retaliation for his reports
about the disposal of the tear gas. All three testified that discussions about changing
Fox’s assignment had begun prior to June 1992.




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       {¶ 12} Fox filed a grievance regarding his reassignment, and on December
17, 1992, filed a complaint against Bowling Green and its police chief in the Wood
County Court of Common Pleas. Fox’s complaint alleged that his reassignment
violated R.C. 4113.52 (the “Whistleblower” statute) because his reassignment
amounted to a disciplinary demotion in retaliation for his “blowing the whistle” on
the release of the tear gas. The trial court granted defendants’ motion for summary
judgment, holding that R.C. 4113.52 requires a showing of an actual violation of
law, work rule or company policy, and that Fox had failed to show that the release
of tear gas on June 4, 1992 amounted to an actual criminal or work-rule violation.
The trial court also held that Fox’s reassignment amounted to disciplinary action
under the Whistleblower statute.
       {¶ 13} The appellate court reversed, finding that R.C. 4113.52 (A)(3)
requires that the Whistleblower need only show that he had a reasonable belief that
the actions of fellow employees were a violation of a law, work rule or department
policy. The appellate court ordered the case remanded to the trial court for the trier
of fact to properly determine whether Fox reasonably believed that Captain Votava
and Lieutenant Brokamp had violated a law, a work rule or department policy in
disposing of the tear gas.
       {¶ 14} This matter is now before this court upon allowance of a
discretionary appeal.
                               __________________
       Lucas, Prendergast, Albright, Gibson & Newman, James E. Melle and
Michael D. Bridges, for appellee.
       Marshall & Melhorn, Thomas W. Palmer and David L. O’Connell, for
appellants.
       Spater, Gittes, Schulte & Kolman, Kathleen B. Schulte and Frederick M.
Gittes, urging affirmance for amicus curiae, Ohio Employment Lawyers
Association.




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                                 January Term, 1996




       John E. Gotherman and Malcolm C. Douglas, urging reversal for amici
curiae, Ohio Municipal League and Ohio Municipal Attorneys Association.
                               __________________
       PFEIFER, J.
       {¶ 15} We hold that to gain the protection of R.C. 4113.52(A)(3), an
employee need not show that a co-worker had actually violated a statute, city
ordinance, work rule, or company policy; it is sufficient that the employee had a
reasonable belief that a violation occurred.
       {¶ 16} Ohio’s Whistleblower statute provides an employee protection from
employer retaliation under certain circumstances when the employee reports
activity of fellow employees in the workplace. R.C. 4113.52(A)(3) provides:
       “If an employee becomes aware in the course of his employment of a
violation by a fellow employee of any state or federal statute, any ordinance or
regulation of a political subdivision, or any work rule or company policy of his
employer and the employee reasonably believes that the violation either is a
criminal offense that is likely to cause an imminent risk of physical harm to persons
or a hazard to public health or safety or is a felony, the employee orally shall notify
his supervisor or other responsible officer of his employer of the violation and
subsequently shall file with that supervisor or officer a written report that provides
sufficient detail to identify and describe the violation.”
       {¶ 17} Thus, R.C. 4113.52(A)(3) sets forth what an employee needs to do
to fall under the statute’s protection for reporting activities of co-workers. This
court held in Contreras v. Ferro Alloy Corp. (1995), 

73 Ohio St.3d 244

, 

652 N.E.2d 940

, at the syllabus, that an “employee must strictly comply with the dictates of
R.C. 4113.52” in order to receive the protection of the statute. The dictates of R.C.
4113.52 are not complete without a consideration of the effect of R.C. 4113.52(B).
This court cannot construe R.C. 4113.52(A)(3) in isolation but rather, must




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construe it in conjunction with other subdivisions of R.C. 4113.52.               R.C.
4113.52(B) provides in pertinent part:
       “No employer shall take any disciplinary or retaliatory action against an
employee for making any report authorized by division (A)(3) of this section if the
employee made a reasonable and good faith effort to determine the accuracy of any
information so reported, or as a result of the employee’s having made any inquiry
or taken any other action to ensure the accuracy of any information reported under
that division.”
       {¶ 18} R.C. 4113.52(B) carries the statute’s punch. That part of the statute
sets forth what the employer may not retaliate against, and what actions bring about
employer liability under the statute. R.C. 4113.52(B) does not require that the
information the employee reports is completely accurate as long as “the employee
made a reasonable and good faith effort to determine the accuracy of any
information so reported.” R.C. 4113.52(B) does not exclude the “aware[ness] * *
* of a violation” component of R.C. 4113.52(A)(3) from the protection of the
“reasonable and good faith effort” requirement.
       {¶ 19} Thus, if an employee reports to his employer that a fellow employee
is violating a state statute and that the violation is a criminal offense and is likely
to cause a hazard to public health, each informational component of that report—
the violation, the criminality, and the risk to public safety—is “information so
reported” under R.C. 4113.52(B). The reporting employee is protected from
retaliation as long as he made a “reasonable and good faith effort to determine the
accuracy” of each informational element. That necessarily includes information
regarding the violation.
       {¶ 20} When the General Assembly enacts a statute, “it is presumed that *
* * [a] just and reasonable result is intended.” R.C. 1.47(C). To require that an
actual violation must occur for a whistleblower to gain protection leads to
nonsensical results which are unjust, unreasonable, and contrary to the spirit of the




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                                 January Term, 1996




statute and public policy. Under the trial court’s interpretation of the statute, each
whistleblower would have to become equal parts policeman, prosecutor, judge, and
jury. A whistleblower could never be certain that a statute has been actually
violated until the perpetrator was found guilty in court. Suppose that a dispatcher
of a taxi company is told by an on-duty driver that the driver is drunk. The
employee believes that the driver does indeed sound intoxicated.            Does the
dispatcher need to chase down the driver, perform field sobriety, breathalyzer and
blood tests before he may report to his supervisor that the driver is driving while
intoxicated? The “actual violation” interpretation also begs a variant on the
proverbial philosophy question about a tree falling in the forest: Has a statute been
violated if no one is arrested and tried for it?
        {¶ 21} From a public policy prospective, the “reasonable belief” standard is
the only acceptable interpretation of the statute. R.C. 4113.52 was designed to give
whistleblowers some protection in Ohio’s employment-at-will environment. Prior
to the statute, they had no protection. See Phung v. Waste Mgt., Inc. (1986), 

23 Ohio St.3d 100

, 23 OBR 260, 

491 N.E.2d 1114

. The public, in turn, relies on
whistleblowers for protection. The “actual violation” standard could delay a
whistleblower’s reporting of a violation which endangers the public safety, or at
worst, prevent him from reporting the violation at all. The statute expects a
whistleblower to be vigilant, attuned to the public’s safety, loyal to his employer,
and sometimes even brave—it does not require him to be infallible.
        {¶ 22} In the present case, Fox reported that Captain Votava and Lieutenant
Brokamp, fellow employees, had improperly disposed of tear gas canisters. Fox
testified in deposition that he had contacted a company that specialized in
hazardous material disposal and was told that a permit was required to dispose of
tear gas. Furthermore, two landfills refused to take the canisters because permits
were required for their disposal. Based on that evidence, we find that a trier of fact
could conclude that Fox filed his report to the police chief and safety director with




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a reasonable and good faith belief that Captain Votava and Lieutenant Brokamp
had violated the law or a department policy by setting off the tear gas canisters in
the field. We therefore affirm the judgment of the appellate court.
                                                                 Judgment affirmed.
       MOYER, C.J., YOUNG, PATTON and COOK, JJ., concur.
       DOUGLAS and F.E. SWEENEY, JJ., concur in part and dissent inpart.
       WILLIAM W. YOUNG, J., of the Twelfth Appellate District, sitting for
WIRGHT, J.
       JOHN T. PATTON, J., of the Eighth Appellate District, sitting for RESNICK, J.
                              __________________
       DOUGLAS, J., concurring in part and dissenting in part.
       {¶ 23} While I concur with much of the reasoning and discussion of the
majority, I respectfully dissent from its ultimate judgment because after a review
of the record, it appears that the employee in this case did not suffer any damage. I
note, with interest, that neither the majority nor the court of appeals suggests what
action the trial court should take if, upon remand, the trial court finds that Fox
“reasonably believed that Captain Votava and Lieutenant Brokamp had violated a
law, a work rule or department policy in disposing of the tear gas.”
       F.E. SWEENEY, J., concurs in the foregoing opinion.
                              __________________




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