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Wholey v. Sears Roebuck6/19/2002
it advisable that the people be obligated under peril of criminal penalty to disclose knowledge of criminal acts, it is, of course, free to create an offense to that end, within constitutional imitations, and, hopefully, with adequate safeguards.
To date, our Legislature has not so acted, except to protect those who do report criminal activity from retaliation. This Court now adopts a public policy mandate for employees who report criminal activity to the appropriate law enforcement authorities; we use caution, however, when considering a case on which the petitioner primarily relies, Palmateer v. Int'l Harvester Co., 421 N.E.2d 876 (Ill. 1981). The Illinois court in Palmateer held that the reporting of any type of crime is protected because the act of investigating and reporting criminal activity is, in and of itself, a public good. See Palmateer, 421 N.E.2d at 879-80. While the factual circumstances in Palmateer - an employee who was discharged after reporting to local law enforcement authorities that a fellow employee might be violating the criminal code - may appear to harmonize with our holding today, the means by which the Illinois court arrived at this conclusion do not. The Palmateer court based its holding entirely on abstract notions of that which constitutes the public good. As the criticism extended by the dissent in Palmateer similarly alludes, such a policy mandate was unsupported by any legislative enactment and was grounded only in the obscure belief that public policy insists that all citizens become crime-fighters. See Palmateer, 424 N.E.2d at 884. The "ends" may be similar, but the "means" by which we achieve those ends are vastly different.
Our decision today is grounded in, and supported by, a legislative enactment from which a public policy mandate clearly emanates. We refuse to take the specific factual circumstance before us and induce from it an all-encompassing exception, as the petitioner would like, which declares that the act of investigating criminal activity is a per se public benefit, the termination for which, is actionable in tort law. Our legislature has declined to encroach upon the employment decisions of private companies through creation of a general all-encompassing "whistleblower protection" statute which would protect employees who investigate and internally report suspected criminal activity; we, in turn, decline to act in its stead. See Adler, 291 Md. at 45, 432 A.2d at 472 (stating that "declaration of public policy is normally the function of the legislative branch" and thus concluding that while a cause of action may be recognized at common law, the basis for that cause of action must come from some clear mandate of public policy). The Legislature clearly intended, however, to preclude retaliation for the reporting of criminal activity by creating a criminal cause against those who violate the mandate. We similarly limit the public policy exception to those who report criminal activity to the appropriate authorities. We digress momentarily to address concerns that our prior decision in Adler, supra, may appear to preclude the holding we adopt today. In Adler we neglected to find a cause of action for wrongful discharge when the employee reported illegal practices by management to his supervisors because "Adler fail to provide any factual details to support the general and conclusory averments . . . or he point to any specific statutory provision . . . that particularly prohibits the claimed misconduct." 291 Md. at 46, 432 A.2d at 472. The critical distinguishing factor between Adler and the case sub judice is at the time Adler was decided, the Legislature had not enacted the provision prohibiting retaliation against a witness for reporting a crime.
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