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Jury will decide case of fired city employee in Troy

City had proposed settlement to former city employee who sought whistleblower protection

By: Terry Oparka | Troy Times | Published October 23, 2019

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TROY — A jury will determine what, if anything, a former Troy city employee is entitled to after he rejected a $75,000 settlement from the city and demanded a jury trial after he was fired on June 11, 2018.

The Troy City Council unanimously rescinded the $75,000 offer Oct. 7.

The city had filed a motion for summary disposition in the case. On Oct. 9, Oakland County Circuit Court Judge Cheryl Matthews denied that.

She stated that the city had offered evidence that the employee’s discharge was for a “legitimate, nondiscriminatory reason,” but that a factual question remained: whether the discharge was pretextual or done for false reasons.

“A jury has to decide,” said Troy City Attorney Lori Grigg Bluhm.

The council had approved the proposed settlement 6-1 Aug. 5, with Councilwoman Edna Abrahim opposed. She said she would not comment on open litigation.

The employee asserted that his termination was retaliation for providing video footage of inside City Hall to former City Manager Brian Kischnick.

Ryan Wolf, 40, a research technology administrator, said that Kischnick had requested the footage just before Kischnick was fired.

Wolf had worked in the Troy Police Department and is a volunteer firefighter with the rank of lieutenant. He filed suit for wrongful termination seeking damages of over $25,000 in Oakland County Circuit Court on July 12, 2018.

In 2013, the Michigan Chapter of the Association of Public Safety Communications Officials – International awarded Wolf the Information Technologist of the Year award, and he was selected as the Firefighter of the Year the same year. Wolf has also received numerous other awards as a firefighter.

In a memo to the Troy City Council dated July 17, 2018, Grigg Bluhm explained that Wolf had asserted that “Kischnick’s request for his assistance was on March 1, 2018, and Kischnick allegedly instructed Wolf not to tell anyone else about his work and his involvement, which was characterized as an Open Meetings (Act) investigation. … Wolf then covertly accessed the city’s restricted closed-circuit TV security camera system, even though he was not authorized. … City Council terminated Brian Kischnick (March 11, 2018) and access to the city’s system was immediately restricted. Four days later, Ryan Wolf came forward to his supervisor since he knew the city was investigating unauthorized access to the system. Based on his experience, Ryan Wolf would have known that any access would have been documented.

“Under Michigan law, if an employee is penalized or harmed because they are alerting authorities to wrongful conduct or threaten to do so, then they are able to seek recourse in the courts as a whistleblower. For example, if Ryan Wolf was penalized by refusing to do the work requested by ex-City Manager Brian Kischnick, this may give rise to a whistleblower cause of action. … City administration is not aware of any violation of the Open Meetings Act,” Grigg Bluhm stated in the memo.

 

Question of violation of Michigan’s Open Meetings Act
In court documents, Wolf, who was hired by the city in 2006, states that on or about March 1, 2018, Kischnick said he was investigating a potential violation of Michigan’s Open Meetings Act and requested that Wolf retrieve video from inside City Hall to assist with the investigation, and Wolf complied.

The lawsuit states that Kischnick requested additional video, which Wolf provided.

Wolf told his direct supervisor on or about March 15 that “he had assisted the former city manager in his investigation of a violation of Michigan’s Open Meetings Act,” court documents state. About a week later, upon his supervisor’s request, Wolf provided a written memo outlining how he had assisted Kischnick with his investigation.

Wolf agreed to and was interviewed by a police detective in early May 2018, and the city did not give him a reason why he was fired, he said in the documents.

Grigg Bluhm told the council at an Aug. 5 meeting that the settlement noted the defense costs, which could total $250,000 to $350,000, and that the case presented “a very unique factual pattern. We do not see it used as a precedent for other employees.”

She told C & G Newspapers she would not comment further and would refer to the memo presented to the council at the Aug. 5 meeting.

In that memo, she states that “for business reasons, city administration recommends acceptance of the facilitation, which is not an admission of liability. Instead, this is in recognition that the city’s defense costs in taking this matter to trial and appeal will greatly exceed the proposed settlement amount by at least $100,000. … Therefore, settlement of this matter for $75,000 is a reasonable settlement amount when compared to the potential liability and defense costs.”

According to the memo, at the facilitation, Wolfe asked for a settlement of $250,000, in addition to a number of nonmonetary requests, including employment references and full-time future employment as a firefighter.

Grigg Bluhm said in the memo that through the facilitation process, the facilitator was able to persuade Wolf to drop his nonmonetary requests and guided the parties to a settlement of $75,000, inclusive of Wolf’s attorney fees, plus the city’s agreement to provide a neutral employment recommendation and to allow for a resignation, rather than termination.

The terms of the settlement would not have impacted Wolf’s status as a volunteer firefighter, but would have limited his IT access to his fire station only. Also, he would not have been eligible for any future positions with the city.

Wolf’s attorney, Angela Mannarino, told C & G Newspapers in July 2018 that Wolf was not given a reason for his termination. “Brian was his boss. He participated in his investigation in the scope of his employment. What the violation was, I don’t know,” she said.

She told C & G Newspapers Oct. 14 that Wolf didn’t want to agree to the terms of the settlement that would have limited his IT access only to the fire station he is assigned to, because he needs access to other stations in his supervisory and training roles as a lieutenant.

Mannarino said that accepting the settlement terms would have “effectively removed him from the Fire Department. He’s been with the Fire Department many years. It’s something that’s important to him. He wanted to be treated the same as other firefighters in his department.”

“Ryan is disappointed with the council’s vote,” she said, referring to the Oct. 7 vote to rescind the offer.

She explained that Wolf currently has IT access to systems throughout the city while he awaits the jury trial, which will determine if his termination from his job was a violation of the Whistleblower Act and what, if any, monetary damages he will receive.

It will be up to the city to decide what IT access he will have as a volunteer firefighter with the rank of lieutenant going forward, Mannarino said.

“Typically, an employee terminated in one capacity is not still with the Fire Department,” she said, adding that Wolf has eight to nine years before he may collect a retirement pension with the Troy Fire Department.

Kischnick came under scrutiny in July 2016 for issues involving a car accident with a city vehicle, as well as questionable moves involving a vendor, the purchase of phone accessories and the city manager’s car allowance.

He was fired in March of 2018 after he was charged with domestic assault, to which he pleaded no contest.

Kischnick was sentenced to serve 30 months in prison and two years of probation after he pleaded guilty to bribery in August 2018.

He was ordered to pay $4,500 in restitution.

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