Jeffry J. BLACK, Plaintiff-Appellant,
IDAHO STATE POLICE, an executive department of the State of Idaho; and Colonel G. Jerry Russell, Director of the Idaho State Police, an individual, Defendants-Respondents.
Rossman Law Group, PLLC, Boise, for appellant. Kimberly L. Williams argued.
Hon. Lawrence G. Wasden, Attorney General, Boise, for respondents. Carl J. Withroe argued.
J. JONES, Justice.
This appeal arises from the termination of Jeffry Black, the former Executive Director of the Idaho Peace Officer Standards and Training Council (POST). Black asserts that the Idaho State Police (ISP) violated two provisions of the Idaho Protection of Public Employees Act (commonly, the " Whistleblower Act" ) when it terminated him. The district court granted summary judgment in favor of ISP, holding that Black failed to engage in activity protected under the Whistleblower Act. Black filed a timely appeal to this Court.
FACTUAL AND PROCEDURAL HISTORY
On August 9, 2006, Colonel R. Dan Charboneau, then director of ISP, appointed Jeffry Black as the Executive Director of POST, a division of the Idaho State Police. POST is empowered to establish standards for the training, education, employment, and certification of peace officers in Idaho. I.C. § 19-5109. Col. Charboneau stated in the appointment letter that he was Black's direct supervisor. Black understood that he reported to Col. Charboneau for " administrative" matters and to POST for " operational" matters. In 2007, Colonel Jerry Russell replaced Col. Charboneau as ISP director. It was Col. Charboneau, and later, Col. Russell, who conducted Black's yearly performance evaluations.
In November of 2008, POST began to have " significant budget difficulties." In fact, on November 13, ISP transferred $50,000 to POST so that it could pay its bills and payroll expenses for the month. As a result of these financial woes, Col. Russell ordered an investigation and " required Black and another POST staff member, Richard Juengling, to explain the accounting for the month and submit a proposal for balancing the POST budget." Black did not fully comply with this directive, indicating to Col. Russell that he (Black) answered only to POST under I.C. § 19-5116. In December of 2008, POST unanimously voted " to direct the POST Council's Executive Director to cooperate with the Director of the Idaho State Police and answer to the Director of the Idaho State Police with regard to the fiscal matters relating to the operation of the [POST] Academy."
In addition to the budget difficulties, Col. Russell soon became aware of various personnel management issues at POST and received
a report that Black was not carrying out directives given to him by POST. In light of that information, Col. Russell requested a Personnel Management Audit Report (Report), which was completed in June of 2009. On June 15, Col. Russell directed Black to provide him with a written response to the concerns raised in the Report by June 29, 2009. A month after that deadline, Black provided a cursory response to some portions of the Report but refused to respond to any issues " outside [his] control or findings that represented less than 30% of the staff's responses." On August 3, Col. Russell sent Black a memorandum in which he stated that Black's response to the Report was not adequate. He directed Black to provide a further written response to the Report and to provide him with a draft of a letter to POST staff regarding the personnel issues raised in the Report, both no later than August 28.
More conflict ensued when Col. Russell sought to transfer financial specialist Lori Guthrie from POST back to ISP where she had formerly been stationed. Black wanted Guthrie to remain at the POST administrative office and asserted that the decision whether to relocate her was exclusively within his purview under IDAPA 11.11.01.031.03. In an August 27 memorandum to Col. Russell, Black indicated that he " will not be responding any further regarding the [Report]." With regard to the relocation of Ms. Guthrie, Black stated, " I am obligated under IDAPA to work within its parameters regarding the operation of POST and it is my decision that it is in the best interest of POST to keep it[s] fiscal team located together in the POST administrative offices."
On September 30, 2009, Col. Russell provided Black with a Notice of Contemplated Action, proposing to terminate his employment on three grounds: " (1) Black's refusal to provide Russell with his proposed letter to POST staff regarding his proposals for addressing concerns in the Personnel Management Audit Report, (2) Black's refusal to return Ms. Guthrie to ISP's offices, and (3) Black's notification to Russell that Black would not respond to Russell's requests regarding the Audit Report." On November 3, 2009, POST concluded that Col. Russell had authority to give Black the directives that he did, and it agreed with Col. Russell's decision to terminate Black. On November 5, 2009, Black was terminated. Black appealed his termination to the Idaho Personnel Commission, where a hearing officer entered a preliminary order granting summary judgment to ISP. Black sought review and the Personnel Commission affirmed the hearing officer in a decision issued on April 12, 2011.
On May 3, 2010, Black initiated the present action in district court. The district court granted summary judgment in favor of ISP, holding that Black failed to demonstrate he had engaged in protected activity as contemplated by the Whistleblower Act. Black filed a motion for reconsideration ...