In 2005, John Miller, a battalion chief with the Los Angeles Fire Department, was selected to head the Department’s Arson Counter-Terrorism Section (ACTS). ACTS is responsible for investigating suspected cases of arson, and where appropriate, presenting its investigative findings to the district attorney for criminal prosecution. The section is comprised of three commanding officers and 18 arson investigators.
Because timely and thorough response to crimes of arson is critical, the investigators are expected to respond to arson-related calls 24 hours a day, seven days a week. The ACTS command staff and investigators are peace officers while assigned to the section and are the only members of the Fire Department authorized to carry firearms. In addition to a department-issued firearm, ACTS members are issued various items of peace officer equipment, including handcuffs, pepper spray, a hand-held radio, and a level three ballistic vest.
Miller was selected to lead ACTS based on his reputation for being a “no nonsense individual” with a “very solid command” and “well-respected in terms of his operations.” At the time of Miller’s selection, ACTS was under scrutiny within the Department for its lack of accountability and responsiveness to the requests of field personnel. When Miller and his command staff began supervising ACTS, they noticed a number of operational issues.
Among other problems, the section did not have any written policies for training standards, firearm qualification, or evidence collection and booking. In addition, arson investigators routinely failed to respond to and properly collect evidence at suspected arson scenes. Instead, the investigators would rely on the on-scene firefighters to collect the evidence and bring it to the fire station for pick-up at a later date. Because the investigators did not document their location during their shifts, it made it difficult for the command staff to know their whereabouts, and it appeared that some investigators were submitting false requests for overtime pay. There also had been numerous thefts within the section, with the missing property ranging from small personal items to entire case files in pending arson investigations.
Over the course of several years, Miller’s efforts to change the way ACTS operated was met with resistance by the investigators. Among other things, Miller reported to his supervisors his conclusion that some members of ACTS had committed crimes in the course of their jobs. Eventually, the Department transferred Miller from ACTS to a position in a platoon. Miller responded by filing a lawsuit alleging that he was the victim of retaliation for his whistleblowing activity.
A jury awarded Miller $993,491 in damages, finding that he had been illegally retaliated against. The California Court of Appeals recently upheld the jury’s verdict.
The City’s primary argument was that Miller had not shown that he had been subjected to sufficient adverse action to trigger California’s whistleblower protections. The Court disagreed, noting: “In this case, the jury reasonably could have found that the City subjected Miller to an adverse employment action when it permanently transferred him from his position as commander of ACTS to platoon duty. Contrary to the City’s claim, there was substantial evidence that the transfer resulted in a diminution in salary and benefits. Miller testified that he lost the 5½ percent salary bonus that he received while working in ACTS. He also lost use of a department-issued take-home vehicle and had to purchase a private vehicle to travel to and from work. Miller’s work and holiday schedule likewise detrimentally changed. Once he was transferred from ACTS to platoon duty, Miller was required to work alternating 24-hour shifts, and as a result, he was no longer eligible for specific days off each week nor was he automatically entitled to be off work on holidays.
“There was also substantial evidence that Miller’s transfer materially affected his job performance and opportunities for advancement in his career. The Battalion Chief of ACTS is one of the highest profile positions in the Fire Department and is known to be a solid platform for advancement within the organization. As a result of the transfer, Miller went from serving as the head of this specialized unit to a platoon Battalion Chief, which is neither a special duty assignment nor a highly coveted position. Miller also lost his status as a peace officer, including his right to carry a concealed weapon and to make arson arrests.
“In addition, Miller’s job duties as the commander of ACTS were substantially different from his duties as the commander of a platoon. In ACTS, Miller was responsible for the overall management and supervision of the arson section, interacted with different City agencies on arson matters, and had the opportunity to network with other agencies and individuals involved in counter-terrorism activities. Once Miller was removed from ACTS, he no longer had these opportunities.
“Moreover, there was testimony from Battalion Chief Potter that a transfer from a special duty assignment back into the field carried a negative connotation in the Fire Department that the person being transferred had done something wrong. Miller confirmed that his involuntary removal as commander of ACTS had adversely affected his reputation within the Fire Department and impaired his ability to perform his chief officer duties. Based on these facts, the evidence was sufficient to support the jury’s special verdict finding that the City subjected Miller to an adverse employment action after he engaged in protected activity.”
