Connecticut’s whistleblowing statute (Conn.Gen. Stat. Sec. 31-51m) protects employees who have made a complaint to a “public body”.
But what exactly is a “public body”? Well, there is a definition but a recent Superior Court case had to look beyond that to determine if a complaint to a special ombudsman would count.
The facts of the case are somewhat unique but can highlight the law of unintended consequences.
In 2003, the Plaitniff filed a federal lawsuit alleging sex discrimination and harassment. In 2008, the parties settled that case. The settlement agreement called for the appointment of an ombudsman, employed by the town who was charged with investigating the plaintiff’s discrimination, harassment and retaliation claims.
In February 2010, she filed a complaint under the ombudsman protocol highlighted in the settlement agreement. On February 10, 2010, the ombudsman released a report substantiating the claims of retaliation and finding that the employer “continue[d] to be impacted” by the prior litigation.
From there, the relationship between the employer and the plaintiff continued to deteriorate, at least as referenced in the court’s decision, and in September 2010, she was terminated from her employment as a police officer.
The threshold question for the court was whether the special ombudsman was a “public body” under state statute. The court concluded that it was, relying on the definition of a public body that “any person to the extent such person is deemed to be the functional equivalent of a public agency pursuant to law” can be one. The court held that the lawsuit in this case met that standard (whether she will ultimately prevail at trial is a different question altogether).
For employers, the case is significant because it suggests that a “public body” can be both broad and created by the parties themselves. For public employers in particular, caution should be exercised when creating an ombudsman-like program.
The decision also addresses whether Connecticut’s anti-retaliation statute, Conn. Gen. Stat. Sec. 46a-60(a)(4) pre-empts other statutes, such as Connecticut’s whistleblowing statute, under Sec. 31-51m. The court fairly easily dismisses such an argument concluding, in part, that because the legislature knew of the anti-retaliation provisions at the time it enacted the whistleblowing statute, it must have intended both statutes to exist concurrently.