Georgia Supreme Court Confirms Whistleblower Claims Require Permission

Georgia Supreme Court Confirms Whistleblower Claims Require Permission

On April 26, 2016, the Georgia Supreme Court, all Justices concurring, overturned the Court of Appeals in a whistleblower retaliation case, dismissing the plaintiff’s claim under the Georgia Taxpayer Protection Against False Claims Act (TPAFCA).  Notably, the TPAFCA previously only addressed fraudulent or false claims involving Medicaid claims, but was broadened by statutory amendment four years ago, to allow a civil action involving any other request or demand for money or property of the state or local government.  The TPAFCA prohibits any retaliatory action against an employee who discloses or threatens to disclose to a governmental agency any unlawful activity or who refuses to participate in such unlawful activity.  It differs from the Georgia Public Employee Whistleblower Protection Act, and from the Medicaid-related TPAFCA provisions, in that it requires that a private person wishing to file an action first obtain the written consent of the Attorney General. (OCGA § 23-3-122(b)(1).)

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Key to Fuciarelli’s case, it contains an anti-retaliation provision, which provides for job reinstatement, two times the amount of back pay, interest on the back pay, and compensation for any special damages including certain litigation costs and attorney’s fees. (OCGA § 23-2-122(l)(1)-(2).)

It also has a lower pleading standard for fraud which does not require the plaintiff to identify specific claims that result from the fraudulent conduct, but only facts, that if proven true, would create a “reasonable indication” that the Act was violated.  (OCGA § 23-3-123(c).)

The plaintiff in the case, Alfred Fuciarelli, is a tenured professor at Valdosta State University (VSU).  At one time he was also the assistant vice president of research and a dean of the graduate school.  Fuciarelli complained about VSU’s “noncompliance with laws, rules, and regulations”.  After his complaint, VSU terminated his contract to serve as assistant vice president and dean, ending his administrative duties and reducing his salary and benefits (even though he remained a member of faculty).

Fuciarelli appealed VSU’s decision to the university’s Board of Regents, which affirmed VSU’s decision. Next, Fuciarelli filed a civil suit against the Board of Regents and VSU’s president William McKenney and former acting vice president of VSU, Karla Hull, seeking damages under the Public Employee Whistleblower Retaliation Act (OCGA §54-1-4) and the Taxpayer Protection Against False Claims Act (OCGA §23-3-120 et seq.).   The trial court denied the motion to dismiss the whistleblower retaliation claim but granted the defendants’ motion to dismiss the TPAFCA claim, on the ground that Fuciarelli failed to obtain Attorney General approval before filing suit.

The Court of Appeals upheld the trial court’s ruling as to the individual defendants acting in their official capacities and Board on the basis of governmental immunity, but ruled that the claims against McKenney and Hull in their personal capacities should not have been dismissed.  The Court of Appeals interpreted the statutory language stating that Attorney General approval is required before a taxpayer can bring a retaliation claim under “this article” to have been a “mistake” by the legislature.  The Court of Appeals concluded that the “civil action” mentioned in the subsection of the article only meant a case brought in the name of the State or local government, not to a private claim.  To conclude otherwise, the Court of Appeals reasoned, would lead to “absurd” results.

Fuciarelli argued that the legislature “could not possibly intend” to require Attorney General approval of a taxpayer retaliation claim because it would put the Attorney General in a position of conflict – approving or disapproving an action to be brought against the State.

The Supreme Court overruled the Court of Appeal’s narrow reading of the statute and rejected Fuciarelli’s arguments.  The Supreme Court admonished that the courts should stay out of policy decisions, noting that if the legislature had wanted to exempt private retaliation claims under the Act from the approval requirement, it could have done so.  The Supreme Court aptly pointed out that the legislature seemed to be capable of making carve outs; it had in fact expressly carved out a shorter, three-year limitation period for the non-Medicaid retaliation claims.

Fuciarelli also argued that in enacting the non-Medicaid provision of the TPAFCA, the legislature looked to its federal counterpart (31 USCA § 3730(h)) for direction, and other than the requirement of Attorney General approval, the two statutes are extremely similar.  Therefore, he concluded, the legislature surely could not have meant to “saddle” a taxpayer retaliation claim with an Attorney General approval requirement.

Further, the Supreme Court flatly rejected Fuciarelli’s argument that the Georgia legislature must not have actually intended to burden private plaintiffs with having to obtain consent to file a private suit, calling his argument misguided.  According to Georgia’s high court, it was plain that the legislature simply used the federal statute as a template.

Finally, the Supreme Court found that the statute and its wording “this article” were plain and unambiguous – there was no other conceivable interpretation or clear evidence in the legislative history that a contrary meaning was intended.

This decision helps ensure that private claims for retaliation for reporting perceived “fraud” or other perceived violations of numerous laws in Georgia will remain subject to Attorney General oversight, which should help filter out claims that otherwise might clog the court dockets.  It also honors the roles of the courts versus the legislature.

Contributor:  Shauna N. Correia, Of Counsel | Weintraub Tobin