There is an expectation that those who work in public jobs will look out for the public interest. Suzanne E. Esserman contended she was doing that when she was fired after 25 years with the Indiana Department of Environmental Management in 2014.
Many would view Esserman's efforts as classic “whistleblowing” – an effort by an employee to bring attention to waste or wrongdoing – and her attorneys attempted to invoke a state law that protects such workers. But earlier this month the Indiana Supreme Court ruled the law doesn't apply to public employees – only those in the private sector.
Esserman said she got into trouble for questioning some disbursements to contractors from IDEM's excess-liability trust fund. The fund helps pay for cleaning up petroleum leaks from underground storage tanks.
IDEM said that wasn't what led the department to let her go. Rather, her work “lacked urgency, commitment and effort in completing her work in a timely manner.”
Esserman sued, arguing she was spending extra time looking into improper payments. “The main impetus was to get the money out the door,” Esserman told The Indiana Lawyer last January. “I never once heard anyone saying we need to safeguard taxpayer dollars. Not once.”
If that was the case, it would be a classic example of why whistleblowers are valued. The trust fund dispersed more than $33 million last year and is expected to pay out $435 million over the next three decades. Encouraging employees to call out any funny business going on with such a specialized fund is very much in the public interest.
The state court of appeals had said the whistleblower law did apply to public employees and ordered a trial on the merits of Esserman's case.
But the high court overturned that order in a 4-1 decision. Writing for the majority, Justice Geoffrey G. Slaughter said the law protects whistleblowers from retribution by an “employer” but fails to specify that state employees are covered. Thus, he wrote, a legal concept called “sovereign immunity” prevails.
That doctrine, “which dates to English common law, prevents the sovereign from being sued in his own courts without his consent.” In this case, the “sovereign” is the state of Indiana, and employees like Esserman are out of luck.
Dissenting Justice Steven H. David contended the term “employer” in the whistleblower law was plainly meant to cover both the private and public sectors. “When a statute is clear and unambiguous,” David wrote, “we need not apply any rules of construction other than to require that words and phrases be taken in their plain, ordinary and usual sense.”
The situation is reminiscent of the court's refusal to apply the state's open-records law to the very lawmakers who created it. But the gap the court's majority perceived in the whistleblower law could be closed easily during the coming legislative session. If not, it will once again be fair to ask what it is about the term “public servant” that everyone seems to be missing.