Friday, October 27, 2000

Whistle-blowers win mixed court victory

By Charles Wolfe
The Associated Press

        FRANKFORT — A “whistle-blower” law designed to protect public employees who expose wrongdoing is constitutional, and courts can impose damages to punish government agencies that violate it, the Kentucky Supreme Court ruled Thursday.

        The decision was a defeat for the state Department of Agriculture, where two inspectors claimed they suffered reprisals after trying to crack down on politically connected pest-control companies.

        In one sense, the inspectors, Donald Vinson and Charles Anderson, also lost. The justices sent their case back to Franklin Circuit Court for retrial under the Whistleblower Act as it existed when they sued the department in June 1993. By the time their suit went to trial in 1997, the law had been changed to make it easier for public employees to win whistle-blower cases.

        Mr. Anderson and Mr. Vinson had only to prove by a preponderance of evidence that they were punished for doing their jobs. A jury recommended an award of $500,000 for punitive damages.

        In a retrial, they must meet the old standard — “clear and convincing” evidence that their attempt to enforce the law was a direct cause of reprisals.

        Writing for the Supreme Court, Justice Donald Wintersheimer said there is a “strong presumption ... that retroactive application of statutes will be approved only if it is absolutely certain the legislature intended such a result.”

        The inspectors' attorney, Bennett Bayer of Lexington, said his clients easily met the requirement for clear and convincing evidence and would not shrink from a second trial. The justices “haven't diminished the merits of the case,” Mr. Bayer said.

        Lawyers for the Department of Agriculture contended the law was too vague to be constitutional, but the justices disagreed. The law prohibits actions by government that are “easily understood” as attempts to “punish, silence or stifle a state employee,” Justice Wintersheimer wrote.

        Mr. Vinson and Mr. Anderson were demoted but not fired. Nor were their salaries cut, so the department argued that they were not entitled to punitive damages.


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