In a suit brought by a former police officer against a supervisor and the city that employed him under the Fraud and Abuse Whistle Blower Protection Act, the city was entitled to sovereign immunity — but the supervisor was not, the Court of Appeals of Virginia has ruled.

A former captain of the Waynesboro Police Department (WPD), Michael W. Martin, brought claims against the City of Waynesboro and his supervisor, Michael D. Wilhelm, alleging wrongful termination under the Whistle Blower Act as well as a common law wrongful termination claim and retaliation claims under Va. Code
§ 40.1-27.3.

The city and Wilhelm moved to dismiss the whistleblower claims for lack of subject matter jurisdiction, arguing that they were entitled to sovereign immunity. The circuit court granted the motion and granted summary judgment in favor of Wilhelm on the retaliation claim.

Martin appealed, and the court reversed in part.

“The Whistle Blower Act waives sovereign immunity for individual supervisors but not for government agencies for claims under Code § 2.2-3011, so the City is entitled to sovereign immunity from
Martin’s whistle blower claim, but Wilhelm is not,” Senior Judge William G. Petty wrote in the March 17 opinion. “Wilhelm was not Martin’s employer under § 40.1-2, so the circuit court correctly granted summary judgment for Wilhelm on the retaliation claim under Code § 40.1-27.3.”

The 17-page opinion, joined by Judges Mary Grace O’Brien and Richard Y. AtLee Jr., is Martin v. The...

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