The legal saga over the city's faulty breath test machines continues, with a District of Columbia Superior Court judge ruling that three police officers can proceed in their whistleblower lawsuit against the city.
The officers had made hundreds of drunk driving arrests before city officials announced in early 2010 that the Intoxilzyer machines were incorrectly calibrated, causing blood alcohol readings that were too high by about 30 percent. In the complaint (PDF), filed in September, the officers claimed they faced unlawful retaliation for speaking out about the scope and history of the problem.
On Feb. 1, Judge Todd Edelman issued an order (PDF)dismissing police Chief Cathy Lanier and D.C. Attorney General Irvin Nathan as individual defendants, but otherwise the bulk of the lawsuit survived motions to dismiss. Edelman published an opinion (PDF) yesterday explaining his decision.
The officers accused city attorneys of telling them to keep quiet about how long they had suspected problems with the machines, and then launching an investigation into the officers’ conduct when they refused to obey. They also alleged that a police department supervisor denied them access to training opportunities, again in retaliation for speaking about the city’s handling of the machines.
The complaint alleged two violations of the D.C. Whistleblower Protection Act. The defendants included the city, the Office of the Attorney General and the Metropolitan Police Department, as well as individuals in the two departments. In December, those parties filed motions to dismiss.
The individual defendants, including Lanier and Nathan, argued that because the police officers named the city as a defendant – in essence, covering all alleged actions taken by city employees – there was no need to keep them in the case.
Edelman said that analysis was wrong, noting that the whistleblower law was “explicitly amended in 2009 to provide for a cause of action against individuals in their personal capacity.” He dismissed Lanier and Nathan, though, because the officers failed to plead that they were directly involved in the alleged retaliation.
The Office of the Attorney General argued that it wasn’t the officers’ “supervisor” as defined by the whistleblower law, since it has no direct authority over the officers’ employment. However, Edelman wrote that the statute also defines supervisors as “individuals with authority to fix the problem about which the whistle has been blown.” As a result, he wrote, the office was properly a defendant.
The case is now going to mediation, a required step for civil cases in Superior Court.
Attorneys for the officers, Anthony Conti and Daniel McCartin of Baltimore’s Conti Fenn & Lawrence, could not immediately be reached for comment today. A spokesman for the attorney general's office said they are reviewing the opinion. A representative of the Metropolitan Police Department did not immediately return a request for comment.