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ARC: HELPING EMPLOYERS CONTEND WITH THE HEIGHTENED THREAT OF WHISTLE-BLOWERS

Police officer whistle-blower's wrongful termination case can proceed

Whistle-Blower Wrongful Termination

A police officer, who was fired after complaining to the FBI about being forced to release a politically connected driver he had arrested, can pursue his wrongful termination claim, an appeals court ruled.

According to last week's ruling by the 7th U.S. Circuit Court of Appeals in Chicago in David Kristofek v. Village of Orland Hills and Thomas Scully, in November 2010, Mr. Kristofek, a part-time officer for the Illinois village's police department, arrested a driver who was the son of a former mayor of a nearby town for having a suspended registration and no proof of insurance. The department's deputy police chief ordered Mr. Kristofek to release the driver without charging him.

Subsequently, Mr. Kristofek expressed concern to fellow officers “that he and other officers were potentially involved with political corruption and that they may have committed a crime,” according to the ruling. He also consulted with an attorney on the issue, and pursuant to the attorney's advice, went to the FBI, and was told there would be an investigation.

In April 2011, the department's police chief, Thomas Scully, gave Mr. Kristofek the option of resigning or having his employment terminated. When Mr. Kristofek said he would not resign, Mr. Scully fired him.

Mr. Kristofek subsequently filed suit, claiming violations of his First Amendment rights and the Illinois Whistleblower Act, among other state laws. A lower court in Chicago dismissed the case, holding that Mr. Kristofek's “sole motive in spreading the word about political corruption was to protect himself from civil and criminal liability.”

In overruling the lower court and reinstating the case, a three-judge panel held “a public employee's speech may still be protected if the speaker's motives were mixed, and also included a desire to help the public.”

The panel said “at no point does the complaint allege that Mr. Kristofek's' only motive was to protect himself. The mere fact that Kristofek was motivated by his self-interest does not make it implausible that he was also motivated to help the public,” said the court.

Furthermore, said the court, “even if Kristofek was motivated exclusively by his own self-interest, his First Amendment claim would not necessarily be dismissed.” A whistle-blower's “exclusive motive may be a desire for fame and a book deal, but it is also accurate to say that the main objective of his speech, given its content, context, and the manner it which it is delivered — is to reform the system,” the appellate court ruled in remanding the case.

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