Elected Officials Are Not Employee-Whistleblowers Under Labor Code Section 1102.5

CATEGORY: Client Update for Public Agencies, Fire Watch, Law Enforcement Briefing Room
CLIENT TYPE: Public Employers, Public Safety
DATE: Aug 07, 2023

Wanda Brown has served as the elected treasurer for the City of Inglewood since 1987. Brown sued the City and several City Council members (collectively the” City”), alleging that after she reported concerns about financial improprieties, the City and the named City Council members defamed and retaliated against her. She alleged that they took various adverse actions against her, including reducing her duties and authority, reducing her salary by 83 percent, taking away her seat on the dais at the council meetings, and temporarily locking her and her staff out of their offices.

Brown sued for: 1) defamation; 2) violation of Labor Code Section 1102.5(b) & (c), which prohibit retaliation against an employee based on the employee’s reporting or refusing to participate in what the employee reasonably believes to be illegal activity by the employer; and 3) intentional infliction of emotional distress (IIED).  The court dismissed Brown’s defamation and IIED claims through various pretrial motions.

The City filed a motion to strike the complaint as a Strategic Lawsuit Against Public Participation, or SLAPP, under California’s anti-SLAPP statute. The anti-SLAPP statute is designed to protect defendants from meritless lawsuits that might chill the exercise of their rights to speak and petition on matters of public concern. The statute authorizes a special motion to strike a claim that arises from any act a person takes in furtherance of the person’s rights to free speech or to petition the government.  In summary, a defendant can get a lawsuit dismissed by proving that the lawsuit was filed to attack and chill the defendant’s rights to free speech and petition.  In this case, the City claimed that Brown was suing them to intimidate and prevent them from speaking about her performance as treasurer, which they claimed was an exercise of free speech.

The superior court granted and denied various parts of this motion.  Brown then filed an appeal. The California Court of Appeal then reviewed the Anti-SLAPP motion.

Courts review two factors on an anti-SLAPP motion. First, the defendant who made the motion must establish that the claims or allegations in the lawsuit arise from the defendant’s protected free speech or petitioning activity. Second, for each claim that does arise from protected activity, the plaintiff who filed the lawsuit must show that the claim as at least “minimal merit”.

The Court of Appeal first examined whether council members’ conduct toward Brown was protected activity. The council members voted to adopt two ordinances and a policy that collectively caused the allegedly retaliatory reduction in Brown’s salary, authority, and duties. Because voting is a form of speech and a constitutionally protected right, the Court of Appeal found constitutionally protected activity. The next inquiry was whether the claims arose out of that protected activity.  Because one of the elements of a Labor Code 1102.5 retaliation claim is an adverse employment action, and the council members voted to lower her salary, authority, and duties, the claim necessarily arose out of their protected conduct.

The Court of Appeal moved on to the second step of the Anti-SLAPP analysis, and assessed whether Brown could prove her claim has at least minimal merit. The Court examined Labor Code 1102.5, which protects defined employees from retaliation.  This Labor Code section, however, defines the term employee as “any individual employed by . . . any . . . city.” The Court noted that the legislature had included elected employees within the definition of “employee” elsewhere in the Labor Code, but did not do so in section 1102.5.  The Court of Appeal held that the “employee” did not include elected officials and therefore, Brown’s 1102.5 claim was not viable claim.

Brown v. City of Inglewood, 92 Cal.App.5th 1256 (2023); Warning – a petition requesting Cal. Supreme Court review has been filed on this case, but the Cal. Supreme Court has not yet taken any action.

Note: This case illustrates the strength of an anti-SLAPP motion and lawsuit. It is also a reminder that Labor Code 1102.5 does not protect elected officials.

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