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Court overturns Whistleblower verdict against City of Burton; judges discuss impact of retirement benefits

This week Judges Saad and O'Connell voted to grant the City of Burton's Motion for Judgment Notwithstanding the Verdict ("JNOV" to lawyers) in a case brought by Bruce Whitman, the City Police Chief.  Responding to City financial difficulties, the Mayor sought to persuade the various Department heads to agree that the City should no longer compensate employees for unused sick time.  The Police Chief objected and raised his family's expectations as a basis to continue to be paid for unused time.  He also threatened to publicize the fact that what the Mayor termed a "Gentleman's Agreement" not to pay unused sick time was actually a violation of the City Ordinance providing for payment of the unused time.

When year-end arrived, Whitman and other employees insisted on receiving their unused sick time and pointed out that the City and Mayor had taken no steps to formally amend the ordinance that provided for compensation.  The unused time was paid, but the two mens' relationship deteriorated from there.  Three officers made a retaliatory stop of the mayor's car leaving a local bar and the mayor believed that Whitman's discipline of the officers was inadequate.  Eventually, the mayor informed the Police Chief that his contract would not be renewed and he explained his actions, in part, as having "gotten off on the wrong foot" with Whitman because of the ordinance violation.

Whitman sued the City under the Whistleblower Protection Act and achieved a verdict for $230,000.00.  The City appealed.  It argued that Whitman was not entitled to Whistleblower Protection because he acted primarily in his own interest in threatening to "blow the whistle" on the Ordinance violation.  On appeal, Judge Saad, who never votes in favor of injured people or discharged employees, convinced Judge O'Connell to join him in setting aside the verdict.  They concluded that Whitman was merely acting in his own personal interest and not entitled to Whistleblower protection.

The judges also addressed the question of when retirement benefits should be set-off against a damage award in a wrongful death claim.

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