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Deputy Discharge States Bowman Claim

Deputy sheriffs who say they were fired after they reported a sheriff’s violation of a penal statute for his off-the-books employment of his daughter can state a Bowman wrongful discharge claim based on their statutory duty under Va. Code § 19.2-201 to report such conduct, says a Franklin County Circuit Court.

Under Bowman v. State Bank of Keysville, 229 Va. 534 (1985), a plaintiff may sue for wrongful discharge in violation of public policy by citing a statute that contains an express statement of public policy or is designed to protect the rights or welfare of the general public, and that the plaintiff was fired for exercising a right the statute is meant to protect.

Plaintiff deputy sheriffs claim the sheriff terminated them in part for refusing to keep false records regarding the employment of his daughter. Had they complied, plaintiffs argue, they would have violated their duty under Va. Code § 15.2-722 to maintain proper records.

Plaintiffs were delegated some of the sheriff’s personnel recordkeeping duties, but as deputies they did not have any statutory duty under Code § 15.2-1603 to maintain adequate records. The sheriff retained that statutory duty. Having no statutory duty or right under that Code section, plaintiffs fail to make out a Bowman claim based on a duty to maintain adequate records.

Plaintiffs next allege the sheriff terminated them in part for reporting the sheriff’s violation of Code § 15.2-1722. That Code section is a penal law, and the sheriff was criminally charged with its violation. Code § 19.2-201 commands sheriff’s deputies such as plaintiffs to “promptly given information of the violation of any penal law to the attorney for the Commonwealth.”

If a deputy is terminated for complying with his statutorily mandated duties, he may bring a Bowman claim for wrongful termination against the sheriff. In McCloskey v. Warren Co. DSS, 81 Va. Cir. 35 (Warren County Cir.Ct. 2010), a local DSS employee was terminated for reporting her boss’s suspected welfare fraud. The circuit court held the DSS employee made out a cognizable Bowman claim.

The facts alleged in this case are similar to those in McCloskey. If plaintiff’s allegations are true, then they were terminated in part for engaging in activity protected under Bowman. Thus, this claim will not be dismissed on demurrer.

However, plaintiffs do not state a Bowman claim based on an attempt to thwart the sheriff’s violation of the Virginia Fraud Against Taxpayers Act. The VFATA broadly prohibits fraud regarding commonwealth money or property. The statute sets up a system whereby employees may report suspected violations of VFATA within their company to the Attorney General, and forbids employers from terminating them in retaliation for reporting such fraud.

Plaintiffs’ reliance on VFATA for a Bowman claim is misplaced because, even if their allegations regarding VFATA are true, they are barred by sovereign immunity.

Plaintiffs only state a proper Bowman claim for wrongful termination regarding their compliance with their duty under Code §19.2-201 is allowed to proceed.

Carter and Arrington v. Hunt (Milam) No. CL 11-5888, Aug. 16, 2011; Franklin County Cir.Ct.; Harris D. Butler for plaintiffs; Melissa W. Robinson for defendant Wagner; Elizabeth Dillon for defendant Hunt & sheriff’s office. VLW 011-8-165, 3 pp.

VLW 011-8-165

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