Youngstown, OH – Today, a unanimous panel of Ohio's Seventh District Court of Appeals (sitting on assignment from the Sixth District)—handed a sweeping victory to former assistant Mahoning County prosecutor Martin Desmond, in his whistleblower appeal against Mahoning County and Mahoning County prosecuting attorney Paul Gains.

The decision affects not only Desmond, but public employees all across Ohio.

In a unanimous opinion penned by Judge Christine Mayle, the appeals court held that the State Personnel Board of Review (SPBR) had improperly dismissed Desmond’s appeal on “jurisdictional” grounds because Desmond had supposedly not met the requirements of R.C. 124.341, Ohio’s public-employee whistleblower-protection statute. The SPBR had held that the statute does not protect those who are commanded to write a report or those who report attorneys’ violations of the professional-conduct rules.

The SPBR’s ruling, the court held, contradicted the statute’s plain language. The court thus reversed the trial court, which had upheld the SPBR’s dismissal.

R.C. 124.341 provides that if a public employee becomes aware in the course of employment of a violation of state or federal law or misuse of public resources, and the employee’s supervisor (or appointing authority) has authority to correct the violation or misuse, the employee may file a written report identifying the violation or misuse with the supervisor (or appointing authority). The statute prohibits an employer from retaliating against a public employee for making such a written report.

Desmond had initiated a whistleblower appeal under R.C. 124.341 at the SPBR in May 2017, after losing his job in April 2017. He contended that he was terminated in retaliation for reporting a fellow assistant prosecutor’s violations of a certain criminal defendant’s constitutional rights, namely, assistant prosecutor Dawn Cantalamessa pressing for the indictment based merely on the defendant’s invocation of his Fifth Amendment privilege to remain silent.

In December 2016, Desmond had sent a text message to his superiors, stating that he believed his colleague, Dawn Cantalamessa, had mishandled a criminal case and that many of the allegations against her were accurate. His supervisor, prosecuting attorney Paul Gains, asked him to provide a written memo. Desmond followed up on his text message with a written memo in January 2017, detailing the misconduct. Desmond was then terminated on April 5, 2017.

The SPBR dismissed Desmond’s appeal on so-called “jurisdictional” grounds, without affording Desmond a hearing (on the merits or otherwise), claiming that Desmond’s written reports did not meet the criteria of R.C. 124.341. Focusing on the January 2017 memo, the SPBR assumed that Desmond only wrote the memo because Gains asked him to—and held the statute did not protect those who were commanded to write a report. The SPBR also held that the statute did not protect those, like Desmond, who reported attorneys’ violations of the rules of professional conduct. Upon Desmond’s appeal to the trial court (as is required for review of administrative-agency decisions), the trial court affirmed the SPBR’s dismissal.

But the appeals court reversed, rejecting the SPBR’s reasoning as “contrary to the plain language of the statute.” ¶˜ 50. The court held: “R.C. 124.341 contains no exception evidencing the legislature’s intent to exclude from whistleblower protection reports of violations of the Ohio Rules of Professional Conduct.” ¶ 49. The court went on: “if the legislature intended to exclude from R.C. 124.341’s protection reports of violations of the Ohio Rules of Professional Conduct, it could have explicitly done so.” ¶ 49.

Regarding the SPBR’s requirement that only those reporting voluntarily, without being asked, receive statutory protection, the appeals court again did a plain-language analysis. The court noted that the statute contains no “good faith” requirement other than requiring employees to make a “reasonable effort to determine the accuracy of any information reported…” It went on to hold that the statute “provides no time frame for making a report, it contains no requirement that a supervisor be unaware of the conduct reported, and it does not specify that the protections of the statute will be lost if an employee is directed by his employer to make a report.” ¶ 51 (emphasis added).

The appeals court also rejected Mahoning County’s argument that the statute’s provision that an employee “may file a written report” means that the statute did not protect those who were required to file a report. The court held this language meant simply that an employee “who becomes aware of a violation of statute, rule, or regulation may—but is not required to—file a written report identifying the violation.” ¶ 52. Thus the court again took a direct, plain-language approach to the statute’s meaning.

The court found analogous the U.S. Supreme Court’s decision in Crawford v. Metro. Gov’t of Nashville & Davidson Cty., Tenn., 555 U.S. 271 (2009), which addressed whether, under Title VII of the Civil Rights Act of 1964, an employee who responded to an employer’s inquiry rather than initiating a report herself engaged in protected activity. The high court held that she did, concluding that “nothing in the statute requires a freakish rule protecting an employee who reports discrimination on her initiative but not one who reports the same discrimination in the same words when her boss asks a question.” Id. at 277–78.

Agreeing with Crawford’s reasoning, the court here emphasized: “if the legislature intended to protect only employees who identify violations independently—and not on the command of their employer—it could have expressly stated this in the statute.” ¶ 53.

Having found that the SPBR improperly dismissed Desmond’s appeal for lack of jurisdiction, the appeals court remanded the matter for a determination of the merits of Desmond’s whistleblower-retaliation allegations. ¶ 54.

The win comes after multiple stages of argument—from the administrative law judge to the SPBR to the trial court to the appellate court.

Said Subodh Chandra, lead counsel for Martin Desmond: “The Court’s opinion is a significant win for both Ohio’s whistleblowing public employees and the public, which needs to hear about misconduct. Protection for whistleblowers must be robust to encourage them to speak out about misconduct.”

Said Sandhya Gupta, also counsel for Desmond: “We are particularly heartened that the court reversed the SPBR’s misguided ruling that the statute does not protect those who report attorneys’ violations of the rules of professional misconduct. For nowhere is the protection for those who courageously blow the whistle more important than in prosecutors' offices, given the amount of power prosecutors wield in criminal proceedings, with little accountability. The legislature never intended such an exclusion—if it had, the exclusion would have been written into the statute—and the court properly gave effect to the General Assembly’s intent.”

Desmond is represented in the SPBR appeal by Chandra and Gupta, of The Chandra Law Firm LLC. The Ohio Employment Lawyers Association (OELA) submitted an amicus brief in the matter.

The Seventh District appeal is captioned Desmond v. Mahoning County Prosecutor's Office, Case No. 2018 MA 0109.