High court to decide if lawyer is 'public body' member under WPA

By Lee Dryden
BridgeTower Media Newswires
DETROIT — Lawyers in the State Bar of Michigan may or may not be members of a “public body.”

It depends on what the Michigan Supreme Court decides in a Whistleblowers’ Protection Act case involving a fired hospital worker.

The “public body” debate took center stage April 12 during oral arguments before the high court in McNeil-Marks v. MidMichigan Medical Center-Gratiot.

In a published opinion, the Michigan Court of Appeals reversed the Gratiot County Circuit Court’s dismissal of plaintiff Tammy McNeil-Marks’ WPA claim.

McNeil-Marks told her attorney that a woman —whom she had a personal protection order against — spoke to her at the hospital. The hospital fired the plaintiff after determining she violated the Health Insurance Portability and Accountability Act and hospital privacy policies by disclosing the patient was at the hospital. She acknowledged telling her attorney the woman was at the hospital, but denied revealing she was a patient.

McNeil-Marks was entitled to WPA protection when making a report to a public body — her lawyer, the appeals court ruled.

Case background

McNeil-Marks adopted two children and had a third placed in her custody between 2006 and 2008. The children’s biological grandmother began to threaten McNeil-Marks during the adoption process, saying she would kill her and the children, the opinion stated.

A PPO requested by McNeil-Marks against the grandmother was granted. It was allegedly violated several times through electronic messages sent to the plaintiff.

In January 2014, the plaintiff encountered the grandmother being transported in a wheelchair in a hallway at the hospital. The grandmother reportedly said hello to the plaintiff in “a little sing-songy voice she has when she feels she has passed something over on you like a little kid. It’s very specific.”

McNeil-Marks told her attorney, Richard Gay, that “she showed up today at my workplace.” She said Gay never asked for further explanation and she didn’t tell him the grandmother “was there in any form as a patient” or that she was in a wheelchair.

She was fired in February 2014 with a stated reason that her phone conversation with her lawyer was a “severe breach of confidentiality and violation of HIPAA privacy/practices.”

The appeals court added that “under the plain language of the WPA, specifically MCL 15.361(d)(iv), Gay qualified as a member of a ‘public body’ for WPA purposes. As a practicing attorney and member of the MBA, Gay was a member of a body ‘created by’ state authority, which, through the regulation of our Supreme Court, is also ‘primarily funded by or through’ state authority. By holding otherwise, the trial court erred.”

Hospital’s argument

Sarah K. Willey of Miller Johnson, who represents MidMichigan Medical Center-Gratiot, told the court, “The issue before this court today is whether an individual’s communication/phone call with her private attorney is a report to a public body within the meaning of the Whistleblowers’ Protection Act. We believe that this is a significant issue and it’s certainly an issue of first impression for this court.”

She said the WPA’s intent is to prohibit employers from taking adverse action against an employee who blew the whistle to somebody with the authority to redress a legal violation.

That’s not what occurred in this matter, Willey argued.

“A private attorney actually has no authority to directly redress any legal violation at all,” she said. “The Court of Appeals ruling really eviscerates the purpose of the Whistleblowers’ Protection Act.”

Referring to the State Bar of Michigan, Willey said “member” can have different meanings such as a dues-paying member or a leadership role such as being a member of its Representative Assembly. A member of a public body under the WPA “has to have some meaningful authority within that body,” she said.

Willey urged justices to consider legislative intent, adding that lawmakers wouldn’t have went to the trouble to define a public body if it were to interpret the member term so broadly to include any lawyer.

The court asked Willey how the statute backs up her claims.

Justice Joan L. Larsen said, “We never want to let purpose trump text — although purpose might inform text — but we never want it to trump text and it sounds to me like you’re wanting it to trump text.”

Justice Richard H. Bernstein suggested Willey’s arguments should be made to the state Legislature.

Willey cited the attorney-client relationship.

“An attorney is really just that person’s agent,” she said. “They don’t have any independent authority to act, except with permission of their client.

“When you make a report to your attorney, you’re really just reporting it to yourself.”

Bernstein said an attorney is an officer of the court and questioned Willey’s claim that a report would have to be made to someone in a bar leadership position, rather than any member.

“Lawyers, by their nature, have the ability to act on a report, which is their requirement in many situations as officers of the court,” he said.

Willey said she doesn’t think being an officer of the court makes an attorney a public body member under the WPA.

Plaintiff’s argument

Plaintiff’s lawyer Russell C. Babcock of The Mastromarco Firm agreed that the statute could be addressed by lawmakers, but added that its language is clear as it applies to this case.

“These are wonderful suggestions, to have the Legislature revise the law, but the law is what it is. It’s black and white. There are no ambiguities,” he said.

He said any ambiguities were created because of arguments about intent and looking at the legislative history to determine intent.

“But the fact of the matter is a member is a member,” he said. “The State Bar is a public body.”

Babcock said his client simply told her attorney — who represented her on the PPO matter and is an officer of the court — that the subject of the PPO showed up at her workplace.

Justices discussed how the State Bar falls within a catch-all “other” category as a public body under the WPA.

Babcock acknowledged the broad definition of public body to include any type of governmental entity.

“Whether or not that was a wise decision by the state Legislature or not, that’s a question for the Legislature,” he said.

Justice Brian K. Zahra pointed out that the State Bar doesn’t have public employees or a defined governmental function and questioned why it would be listed in the “other” category.

Babcock said he has “always looked at it as being an effort by the state Legislature to be all inclusive.” He added that the State Bar is a public body created by state authority.

Babcock stressed that it was appropriate for McNeil-Marks to address the incident with her lawyer.

“She felt there was a violation of the PPO. Her counsel, her attorney, who is a member of the State Bar, advised her of the options,” he said.

Whether it was the plaintiff or another witness making a report to her attorney, it is protected activity, Babcock said.