Whistleblowing: a Growing Trend
| Publication year | 1990 |
| Pages | 1313 |
| Citation | Vol. 19 No. 7 Pg. 1313 |
1990, July, Pg. 1313. Whistleblowing: A Growing Trend
The definition of "whistleblowing" is the reporting of unlawful conduct to a superior inside the whistleblower's organization or to someone outside the organization. Thirty states have enacted legislation to protect whistleblowers. Some statutes protect both private and public sector employees. However, most such statutes are like Colorado's, which deals only with public or governmental employees.
Because whistleblowing cases are growing in number, practitioners should be aware of the laws that protect public employees in their whistleblowing efforts. This article briefly reviews Colorado's whistleblower statute---the State Employee Protection Act(fn1) ("Act")---and related case law.
In creating the Act, the Colorado General Assembly made it unlawful to retaliate against a state employee for disclosure of certain kinds of work-related information, such as waste and mismanagement of public funds, abuses of government authority and illegal or unethical practices. The protection of the Act does not apply to an employee who discloses false information, information that is contained within public records but is closed to public inspection or information that is confidential pursuant to any provision of law.
Protection for whistleblowers under the Act stems from the concept of freedom of speech found in the Colorado Constitution, Article II, § 10 and the U.S. Constitution, Amendments I and XIV. In a 1977 case, Mt. Healthy City School District Board of Education v. Doyle,(fn2) the U.S. Supreme Court announced a three-part test to determine whether the termination of a government employee was the result of an unlawful retaliation. In Mt. Healthy, the Court held that:
1) a plaintiff has the burden of showing by a preponderance of the evidence that the plaintiff's activities fall within the protection of the constitutional guaranty of freedom of speech;
2) the plaintiff must prove that these activities were a substantial or motivating factor in the decision to fire him or her; and
Colorado Case Law3) if the employee proves the previous two propositions, the employer can still avoid liability by proving that it would have fired the employee regardless of the protected conduct.
The Act has been interpreted judicially three times. The first decision was in Ward v. Industrial Commission,(fn3) which was decided by the Colorado Supreme Court in April 1985. In Ward, the plaintiff was employed as an auditor for three years in the external audit division of the Colorado State Department of Highways ("DOH") until his dismissal in February 1978. When the plaintiff filed a claim for unemployment benefits, he was informed that he would be denied benefits for twelve weeks because of allegedly inflammatory statements he had made defaming the office of the State Auditor.
The Mt. Healthy three-part test was addressed and approved in Ward. In addition to this constitutional inquiry, the Colorado Supreme Court concluded that the Industrial Commission also must determine whether Ward's application for benefits was protected by the Act. The court stated that "the statute protects state employees from retaliation by their appointing authorities or supervisors because of disclosure of...
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