Ziegler & Schneider attorney, Shane Sidebottom, is quoted extensively in a Bloomberg News national story on a Whistleblower case that Ziegler and Schneider is pursuing in Frankfort, Kentucky, on behalf of its clients.
Bloomberg Law Daily Labor Report
Dueling Court Orders Leave Kentucky Whistleblower Suit a
By Alex Ebert Posted Dec. 28, 2018, 2:46 PM
Opposite rulings say legislators accused of harassment can and can’t intervene in cases State legislative staffers were fired after reporting allegations.
An unprecedented split between two Kentucky judges in the same courthouse is tangling a high-profile whistleblower case in which legislators are seeking to keep sexual harassment allegations against them secret.
Franklin County Circuit Court Judge Phillip Shepherd ruled Dec. 27 that former Kentucky House Speaker Jeff Hoover and two other state representatives can intervene in the case and reopen the deposition of the alleged victim, with whom the legislators have already entered a confidential settlement.
But in a separate and related Dec. 27 opinion, another Franklin County Circuit Court judge, Thomas Wingate, ruled the legislators can’t intervene at all. He also granted a protective order for the alleged victim because the legislators signed a settlement agreement with her on these allegations, he reasoned.
The decision came in two separate cases. In the first, Daisy Olivo, former Hoover spokeswoman, alleges she was demoted and red from her position with the Kentucky Legislative Research Commission (LRC) for reporting to several superiors the victim’s allegations against the legislators. In the second, another LRC employee, Brad Metcalf, alleges similar retaliatory termination for reporting the victim’s allegations. The victim’s allegations came to light with news reports of the legislators’ confidential settlement.
The split means the Kentucky Court of Appeals will likely be called on to decide whether politicians can enter whistleblower lawsuits to protect their reputation. Additionally, the Court of Appeals will hear a unique procedural tangle in which one judge has ordered the alleged victim to sit for her deposition while the other ordered she doesn’t have to show up.
“Everybody is in a state of absolute perplex,” Shane Sidebottom, an attorney who is representing Olivo and Metcalf, told Bloomberg Law Dec. 28. “This case is unfortunately becoming a bar exam question.”
Reps Protecting Rep
Shepherd ruled Hoover and Republican Reps. James DeCesare and Michael Meredith had an interest in protecting their reputation. Their reputations, Shepherd said, qualified as a “present substantial interest” in the whistleblower case, which allowed them to intervene under Kentucky law.
But Kentucky Whistleblower Act claims are between an employee and the employer—the lawsuits don’t include as parties any individual accused of breaking the law. That means the legislators can’t request entry to the case in their “individual capacities.”
However, Shepherd said, “this is not a typical whistleblower suit, and the issue of whether” the Legislative Research Commission, “as an entity, has the power to sue or be sued in the context of a Whistleblower Act claim is unsettled.” He ruled that the legislators could intervene in their “official capacities” due to legislators sitting on a 16-member panel that controls the commission.
The alleged victim will ask the Court of Appeals to block the deposition, her attorney, Gail Langendorf, with Busald Funk Zevely P.S.C. in Florence, Ky., told Bloomberg Law on Dec. 28. Sidebottom, who is with Ziegler and Schneider P.S.C. in Covington, Ky., said he would also be filing a similar request.
To get a Court of Appeals hearing, the alleged victim must show she would suffer great injustice and irreparable injury if her deposition was reopened. Langendorf thinks this situation clears that hurdle, as the legislators chose to settle with the alleged victim instead of disputing her claims in court.
“My concern is this judge’s order would lead to a chilling effect on people employed by the commonwealth bringing forward allegations,” she said. “There’s this poor girl who has sexual harassment claims who is being dragged through the abyss because she accurately reported,” she said.
‘What’s the Cutoff?’
Wingate ruled reopening the deposition would “create numerous side issues and essentially lead to a mini trial” on claims already settled. “This Court will not turn a straightforward claim of retaliation under the KWA into complex litigation creating new interests wholly unrelated.”
Sidebottom, an expert on Kentucky Whistleblower Act litigation, agreed with Wingate’s ruling and said that allowing legislators, or other intervenors, would “shoot holes” in one of the U.S.’s most worker-friendly whistleblower laws.
The law doesn’t require a worker’s underlying report of illegal activity to be true for the person to be protected. It just must be made in good faith. Thus, hashing out the victim’s allegations is irrelevant for his client’s claims, and allowing in parties with a reputation interest could have a chilling effect on public workers reporting illegal activity.
“I’m sure every wrongdoer would like the opportunity to enter a case and challenge the wrong they are alleged of doing, but that’s never happened before,” Sidebottom said. “I’m fearful that we’re creating special rules for people of privilege to allow people to intervene to protect their reputation. What’s the cutoff?”
The legislators’ attorney didn’t immediately respond to a request for comment.
The cases are: Metcalf v. Legislative Research Comm’n, No. 18-CI-245, motion to intervene denied 12/27/18 and Olivo v. Legislative Research Comm’n, No. 17-CI-1256, motion to intervene granted 12/27/18.