The Arkansas Supreme Court today again ruled that the doctrine of sovereign immunity protects public officials from lawsuits brought by those who claim they’ve been punished for whistleblowing.
The Court did keep barely alive allegations against Gov. Asa Hutchinson and Patrick Fisk, deputy director of the Livestock and Poultry Commission. Christopher Harris sued them individually and as public officials for being fired because he refused to hire someone the governor had recommended for a livestock inspector job. Harris said another candidate was better qualified. As a result, he said he was fired for insubordination.
The Supreme Court reiterated that the Arkansas Whistle-Blower Act, passed by the legislature to protect people seeking damages for retaliation, unconstitutionally waived sovereign immunity. For purposes of the law, a public official is the state and the Arkansas Constitution says the state may not be a defendant in its courts. The state Claims Commission remains an outlet for potential awards to those damaged by state action.
Judge Tim Fox granted the state’s motion to dismiss the lawsuit, citing sovereign immunity. The Supreme Court mostly agreed. It rejected arguments that other constitutional protections, such as guaranteed redress for damages, overrode the sovereign immunity provision and that the governor hadn’t waived executive privilege by signing the Whistle Blower Act. It showed no sympathy — again — for arguments raised in other cases that the Supreme Court’s relatively new sweeping precedent on sovereign immunity has undermined whistleblowing, judicial review of the other branches and the Freedom of Information Act.
Illegal actions can still justify a waiver of sovereign immunity protection for state actors, but the Supreme Court said Harris had presented little evidence of illegal acts.
Harris’s complaint offers little more than conclusory allegations that he was terminated for reporting his concerns about misuse of state money due to the hiring of a candidate whom he considered to be less qualified. Harris’s complaint alleged only that he selected a candidate, that Hutchinson directed Fisk to tell Harris to hire another candidate, and that when he refused, he was terminated for insubordination. Although Harris asserts that he reported his concerns about misuse of state money, he failed to indicate in the complaint when he made such a report. Harris failed to provide any detail of the interactions that he had with either appellee before his termination. Harris’s conclusory statements and bare allegations are insufficient to establish an illegal, unconstitutional, or ultra vires act such that sovereign immunity would not apply to either his AWBA or his constitutional claims. Therefore, sovereign immunity precludes Harris’s official-capacity claims.
The Supreme Court kept alive the individual capacity claim because the circuit judge dismissed the suit on sovereign immunity alone. Individuals are not protected by sovereign immunity, though the court’s commentary indicates doubts about the sufficiency of evidence Harris presented.
Justice Jo Hart dissented on the key finding. She repeated earlier opinions that the sovereign immunity defense is overridden by other constitutional protections. She also said Harris made a strong case of an illegal act by the state in:
… insisting that Harris hire an unqualified applicant for public employment over a qualified applicant for reasons of political favoritism, and then firing Harris for his refusal to do so. The majority characterizes these allegations as bare and conclusory, but what more should Harris have to plead to properly allege an illegal act here? Harris’s official-capacity claims allege illegal conduct and seek relief only in the form of reversing, enjoining, and deterring that illegal conduct—not money damages.
Justices Shawn Womack and Rhonda Wood dissented to the extent they would not have allowed the suit to continue against the officials even as individuals. Womack wrote:
While the circuit court may have incorrectly relied upon sovereign immunity to dismiss all claims, the correct result was reached.