FOX, APPELLEE, v. CITY OF BOWLING GREEN ET AL., APPELLANTS.
No. 94-2544
SUPREME COURT OF OHIO
September 4, 1996
76 Ohio St.3d 534 | 1996-Ohio-104
Submitted January 24, 1996
To gain the protection of
APPEAL from the Court of Appeals for Wood County, No. 94WD009.
{¶ 1} Prior to June 1992, appellee William A. Fоx 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Captain Thomas Votava, the administrative officer who assists the police chief, told Fox to arrange for the disposal of outdated tear gas canisters which were stored in the public armory.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 cоntacted 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 apprоximate cost of disposing of the materials was $55 per unit and that a permit was required to dispose of the materials. Furthermore,
{¶ 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 substancе 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 headquаrters, 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 Votavа about the disposal,
{¶ 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 Liеutenant 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 futurе 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 аs 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 wаs 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.
{¶ 13} The appellate court reversed, finding that
{¶ 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 affirmanсe for amicus curiae, Ohio Employment Lawyers Association.
PFEIFER, J.
{¶ 15} We hold that to gain the protection of
{¶ 16} Ohio’s Whistleblower statute provides an employee protection from employer retaliation under certain circumstances when the employee reports activity of fellow emplоyees in the workplace.
“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 рolicy 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 supеrvisor 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,
“No employer shall take any disciplinary or retaliatory action аgainst 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}
{¶ 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 сause 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
{¶ 20} When the General Assembly enacts a statute, “it is presumed that * * * [a] just and reasonable result is intended.”
{¶ 21} From a public policy prospective, the “reasonable belief” standard is the only acceptable interpretation of the statute.
{¶ 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
Judgment affirmed.
MOYER, C.J., YOUNG, PATTON and COOK, JJ., concur.
DOUGLAS and F.E. SWEENEY, JJ., concur in part and dissent in part.
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.