Eighteen months after hearing arguments in the case, on June 24 the Minnesota Supreme Court delivered its long-awaited decision in Kidwell v. Sybaritic. The case asked whether an attorney employed in-house can be protected under Minnesota's whistleblower statute in light of the fact that reporting legal violations is part of an in-house lawyer's regular job duties.
But when it finally came down, the opinion may not have provided all that was hoped for by Minnesota legal practitioners.
In an April 2005 e-mail entitled "A Difficult Duty," Kidwell outlined that the company had failed to investigate dishonest salespeople, allowed an employee to engage in the unauthorized practice of medicine and failed to pay taxes it owed in California. Those issues fell outside his area of responsibility, but he had also become aware of activity he had a responsibility to report. Kidwell wrote that he believed Sybaritic was obstructing discovery of e-mails that were crucial to ongoing company intellectual property litigation.
Kidwell also sent a copy of the "Difficult Duty" e-mail to his father, a retired businessman in whom Kidwell had confided the ethical dilemma he faced.
The state Supreme Court relied on analysis of the federal Whistleblower Protection Act--fairly analogous to the state law for purposes of comparison--that the Federal Circuit set forth in 2001 in Huffman v. Office of Personnel Mgmt. In that case, the court said that an employee who "has, as part of his normal duties, been assigned the task of investigating and reporting wrongdoing by government employees and, in fact, reports that wrongdoing through normal channels" is not engaging in protected conduct.
Under that analysis, Kidwell's conduct was not protected, the majority concluded, citing Kidwell's testimony that he had sent the e-mail because "as the person responsible for the legal affairs of the company, that's what I had to do."