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TOWN OF DUNCAN v. BOARD3/3/1997
the speech involves a matter of public concern and (b) the employee's interest in speaking outweighs the employer's interest in promoting office efficiency; and (2) the plaintiff's speech was a substantial motivating factor in the government action. Connick v. Myers, 461 U.S. 138, 103 S.Ct. 1684, 75 L.Ed. 2d 708 (1983); Mt. Healthy City Sch. Dist. v.
Doyle, 429 U.S. 274, 97 S.Ct. 568, 50 L.Ed.2d 471 (1977); Pickering v. Board of Educ., 391 U.S. 563, 88 S.Ct. 1731, 20 L.Ed.2d 811 (1968). The First Amendment insures that public employers do not fire employees "on a basis that infringes that employee's constitutionally protected interest in freedom of speech." Rankin v. McPherson, 483 U.S. 378, 107 S.Ct. 2891, 97 L.Ed.2d 819 (1987).
Under the Whistleblower Act, public employees can recover if they show their employer retaliated against them for filing a well-grounded, good-faith report of wrongdoing with an appropriate authority. S.C. Code Ann. § 8-27-20 (Supp. 1995). The employee must show the employer's action was because of the filing, however, and was not motivated by an independent reason. Id. at § 8-27-40. While this statute encourages employees to report wrongdoing as a matter of public policy, it does so by protecting their right to speak without fear of retaliation. It is narrower than the protection given by the First Amendment because it only addresses one type of speech: reports of wrongdoing. However, a public employee's reporting of misconduct will always implicate First Amendment protection because it is universally held to be a matter of public concern. See Pickering, supra; Davis v. Ector County, 40 F.3d 777 (5th Cir. 1994) ("There is perhaps no subset of `matters of public concern' more important than bringing official misconduct to light"); Swineford v. Snyder County, 15 F.3d 1258, 1274 (3d Cir. 1994) ("Speech involving government impropriety occupies the highest rung of First Amendment protection. Moreover, the public's substantial interest in unearthing governmental improprieties requires courts to foster legitimate whistleblowing.").
We find that, construing the policy liberally and considering the great degree of similarity and overlap in statutory and non-statutory Whistleblower actions, coverage should be provided in this case. At best, this language "arising out of a violation of the First Amendment" is ambiguous in this context and should be construed in favor of coverage. See Nationwide Mut. Ins. Co. v. Simmonds, 315 S.C. 404, 434 S.E.2d 277 (1993) (rule that ambiguous terms in policy should
Finally, the trial judge also found Board had no duty to defend based on the second cause of action, intentional infliction of emotional distress. Although we agree that the policy does not cover such actions, Board is not justified in refusing to defend the lawsuit on this basis. See Employers Mut. Liab. Ins. Co. v. Hendrix, 199 F.2d 53 (4th Cir. 1952) (where a lawsuit contains several causes of action, some of which are covered under the policy and some of which are not, an insurer is not justified in refusing to defend the entire suit).
It is for these foregoing reasons that we find Board owes a duty to defend or indemnify Town in the lawsuits at issue in this case. The order of the trial judge is hereby reversed and this case is remanded for further proceedings consistent with this opinion.
REVERSED AND REMANDED.
FINNEY, C.J., TOAL, MOORE and BURNETT, JJ., concur.
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