Public Officials Can’t Maintain Lawsuits for Whistle-Blowing Retaliation, C.A. Declares
Rejects Stance of City Treasurer That She Is Entitled to Damages Based on Salary Cut, Other Adverse Actions
By a MetNews Staff Writer
Shown above is the revision to salaries of Inglewood city officials contained in a proposed ordinance enacted in 2022, slashing the monthly pay of the elected treasurer to $1,404. Her claim that the pay cut was in retaliation for her whistle-blowing activity is barred, the Court of Appeal held, because the statute she invoked applies only to “employees,” which does not include public officials.
An elected public official cannot state a claim under Labor Code §1102.5 for retaliation based on whistleblowing, Div. One of the Court of Appeal for this district has held, declaring that an anti-SLAPP motion should have been granted in its entirety in favor of the mayor of Inglewood and all four members of the City Council as to causes of action brought by the city treasurer pursuant to that statute.
Wanda Brown, who has served as treasurer since 1987, sued the city and the individual office-holders, claiming she was punished by the council and Mayor James T. Butts for revealing financial irregularities, including an alleged overpayment to a contractor in the amount of $77,420.
She complained of a September 2022 ordinance that yanked auditing duties from her, shifting them to the city clerk, lowering to $50,000 the maximum on funds she managed, and revising the city’s investment policy. Brown also protested enactment the following month of a revised salary ordinance, slashing her pay by more than 80 percent from $8,355 to $1,404 per month.
Though it would have been inessential to the resolution of the appeal, there was no mention in Wednesday’s unpublished opinion of how the city sought to justify a reduction of a salary during an official’s term of office. Brown was elected in 2020 (without opposition) to a four-year term.
Los Angeles Superior Court Judge Deirdre H. Hill had granted the defendant’s motion under the anti-SLAPP statute, Code of Civil Procedure §425.16, as to Brown’s cause of action for defamation and intentional infliction of emotional distress (“IIED”), to the extent the IIED was based on defamation, but denied the motion as to a cause of action for whistleblower retaliation and for IIED stemming from the alleged retaliation.
Hill found that the claims based on retaliation were not founded on “protected activity,” thus failing to satisfy the first prong of the statute.
Div. One’s presiding justice, Frances Rothschild, in Wednesday’s opinion, disagreed as to the retaliation claims. They stemmed from votes by an official body, which, she said, is protected activity.
The second prong of the statute—a showing by the plaintiff of a probability of prevailing on the merits—cannot be met, Rothschild declared.
In discussing the second prong, her focus was on the reference in §1102.5 to retaliation “against an employee” for whistleblowing. She wrote:
“Notably, the Legislature did not reference elected officials as falling within the scope of the term ‘employee’ for the purposes of section 1102.5.”
The presiding justice continued that “when the Legislature intended to include elected officials within the scope of the term ‘employee’ elsewhere in the code—namely, in defining the term for purposes of workers’ compensation—the Legislature expressly” said so.
Brown contended that it is “reasonable and sensible for California courts” to similarly “classify elected officials as employees” for purposes of §1102.5. Rothschild responded:
“This argument flies in the face of basic maxims of statutory interpretation, because it asks us to interlineate section 1106 with words that the Legislature chose not to include….” Rothschild said that workers compensation, which does cover officials, is the exclusive remedy.
The opinion recites that the anti-SLAPP motion was denied “as to the section 1102.5 retaliation claim and the retaliation-based IIED claim against all defendants,” which included the City of Inglewood, and that “[d]efendants appeal”; the City of Inglewood is listed as the defendant/appellant.
Yet, the opinion expressly only benefits “the individual defendants,” not the city.
While Rothschild was not arguably obliged to explain the city’s apparent failure to argue why the special motion to strike the IIED allegations should not have been granted in its favor, her opinion leaves unanswered why Div. One did not find mootness as to the four City Council members (two of whom remain on the council). Brown was no longer seeking to have them held liable.
They were included as defendants in her first amended complaint.
At the same time that Hill acted on the anti-SLAPP motion, she ruled on a demurrer to that pleading, sustaining it with leave to amend as to the IIED claims; Brown filed a second amended complaint omitting the council members as defendants; separately, she dismissed them, though without prejudice. However, in light of Rothschild’s declaration that Brown may not maintain an action under Labor Code §1102.5, further proceedings against the city appear to be barred with other niggling issues seeming to be of only academic interest.
The case is Brown v. City of Inglewood, B320658.
Not before the Court of Appeal was Hill’s order, consequent to the partial granting of the anti-SLAPP motion, awarding $41,260 in attorneys’ fees and $8,645 in costs in favor of the defendants.
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