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The Georgia Whistleblower Act Generally Applies Only to Public Employees that are Currently Employed by a Public Employer

April 13, 2018

 

                Elisabeth Murray-Obertein was employed by the Georgia Government Transparency and Campaign Finance Commission ("the Commission") from December 2011 until January 2014.  On October 28, 2014, she filed a complaint in which she alleged that the Commission had retaliated against her due to the following: she was deposed in a case against the Commission related to a campaign finance ethics investigation; she testified at the trial which arose from that investigation; and she reached a settlement on her own claims against the Commission. Murray-Obertein v. Georgia Government Transparency and Campaign Finance Commission, 2014WL5454572 (Ga. Ct. App. 2018).  Murray-Obertein alleged that the retaliation was in the form of derogatory statements that the Commission made during interviews, all of which occurred after Murray-Obertein was no longer employed with the Commission.  The trial court granted the Commission’s motion for summary judgment, finding that the term “public employee” did not include former employees.

 

                On appeal, Murray-Obertein contended that the trial court erred in finding that her retaliation claim was improper under the Georgia Whistleblower Act, O.C.G.A. § 45-1-4 (the "GWA").  "The GWA creates a cause of action for retaliatory discharge, suspension, demotion, or other adverse employment action taken against a public employee (as defined by the Act) by a public employer as a result of the employee's disclosure of, or refusal to participate in, violation of the law." West v. City of Albany, 300 Ga. 743 (797 S.E.2d 809) (emphasis added). Murray-Obertein argued that the GWA applied at the time of the protected activity, not at the time of retaliation. However, the Georgia Court of Appeals found that the GWA expressly defined "public employee" as a person "who is employed."  When the Court considers the meaning of a statute, it must presume that the General Assembly “meant what it said and said what it meant.”  Therefore, the Court affirmed the trial court’s decision but noted that there may be some instances where a “public employee” would not be employed by the agency when the retaliation was discovered, and in those cases this rigid framework would not apply.

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