August 26, 2014

Employee alleges his termination was in violation of Civil Service Law §75-b, the so-called public employee Whistle Blower Law.

Employee alleges his termination was in violation of Civil Service Law §75-b, the so-called public employee Whistle Blower Law.
2014 NY Slip Op 05719, Appellate Division, Fourth Department

A code enforcement officer [Officer] terminated from his position sued the Town alleging that his "termination was in retaliation for his refusal to perform" unauthorized functions and for his "act[ing] as a whistle-blower in reporting" those unauthorized directives "to the Town's outside attorney and others" in violation of Civil Service Law §75-b, the public employees' whistle blower statute.* Officer contended that he was terminated after he refused to issue a stop work order when directed to do so by the Supervisor because of his belief that he "could not legally" issue a stop work order to a developer working on a project because "the developer had all of the necessary permits."

One of the issues considered by the Appellate Division was the Town’s contention that Supreme Court incorrectly denied its motion to dismiss Officer’s retaliation claim “for failure to state a cause of action.”

The Appellate Division rejected the Town’s argument concerning the alleged retaliation, explaining that Civil Service Law §75-b “prevents a public employer from … terminating a public employee because the employee discloses to a governmental body information . . . which the employee reasonably believes to be true and reasonably believes constitutes an improper governmental action."

As to the meaning of "improper governmental action," the court said that the refers to "any action by a public employer or employee, or an agent" thereof, "which is undertaken in the performance of [his or her] official duties . . . and which is in violation of any federal, state, or local law, rule or regulation," citing § 75-b [2] [a]. In this action, said the court, the governmental bodies to which disclosure may be made included “a member of a town's legislature.”

Other requirements include that an employee, prior to disclosing the information, must have "made a good faith effort to provide the appointing authority or his or her designee the information to be disclosed and . . . provide[d] the appointing authority or designee a reasonable time to take appropriate action."

Significantly, the Appellate Division noted that Officer had adequately alleged that he reasonably believed that he had been directed to perform an unlawful act and Civil Service Law §75-b does not require an actual violation of the law for an employee to subsequently allege that he or she had been terminated because he or she acted as a “whistle blower.” In such a situation the employee need have had only "a reasonable belief of a possible violation" of the law.

Construing Officer’s complaint liberally, and accepting his factual allegations and all possible favorable inferences as true, the Appellate Division concluded that Officer had “adequately alleged that he believed that he had been ordered to commit an unlawful act and that his belief was reasonable.”

* Labor Law Article 20-c, Retaliatory Action By Employers, provides similar protections to employees in the private sector.

The decision is posted on the Internet at: