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Blowing the Whistle While You Work

The Pennsylvania Commonwealth Court recently decided a case involving a fired zoning officer and the Pennsylvania Whistleblower Law, 43 P.S. §§1421-1428.  In Rohner v. Atkinson, et al., (1654 C.D. 2014, decided June 10, 2015), the Township’s zoning officer issued negative reports on a school construction project for leaks in the roof and deviations from the land development plan, and refused to issue a certificate of compliance.  The school district filed an appeal to the zoning hearing board.  Before the hearing could take place, the Township suspended Rohner, and appointed an alternative zoning officer who issued a report that the school district was in compliance and that the certificate of compliance could be issued. The Township then fired Rohner.

Rohner turned around and filed a lawsuit claiming that he was fired for reporting “wrongdoing” under the Whistleblower Law, and that his discharge also violated the public policy exception to Pennsylvania’s employment at-will doctrine.  The lower court dismissed the complaint on the basis that Rohner was not entitled to whistleblower protection because his report was not made against his employer, but was simply part of his job duties.  The lower court also rejected the argument that public policy prohibited his discharge.

The Commonwealth Court reviewed both the federal and state statutes and decisions concerning the Whistleblower Law.  The lower court relied on a federal case that had been superseded by an amendment to the federal whistleblower law.  Pennsylvania cases hold that if an employee’s report of wrongdoing or waste relates specifically to the mission of his employer, then a cause of action can be maintained against the employer under the Whistleblower Law.  In this case, since Rohner’s report related specifically to the mission of the Township, i.e., enforcement of the zoning laws, he stated a cause of action under the Whistleblower Law.

The Commonwealth Court also ruled that there is not a clear public policy that protects zoning officers from being fired because they do their job “with too much zeal for their employer’s taste.”  The Pennsylvania Municipalities Planning Code makes zoning officers employees at-will, and if the governing body is unhappy with the decisions of the zoning officer, then it has the right to terminate employment.  However, as this case points out, the timing and circumstances surrounding the dismissal may trigger another statute that gives rise to a separate cause of action.