The officers contended that they refused to follow an illegal order — an act that would be protected under the Whistleblower Protection Act. They said they were instructed by prosecutors from the attorney general’s office not to discuss problems with the Metropolitan Police Department’s Intoxilyzer machines in court testimony. They did so anyway.
The department announced in March 2010 that the tests used to evaluate drunk drivers were faulty and suspended their use until September 2012. Police acknowledged that almost 400 people were convicted based on miscalibrated tests.
But Fetting, Rodriguez and Zabavsky had no firsthand knowledge of the problems, the attorney general’s office said. By telling them not to discuss the issue on the witness stand, the office said, prosecutors merely meant to instruct them not to bring inadmissible hearsay into the cases.
“If you were to accept the view that this was just some kind of hearsay, rumor-mongering among D.C. police officers, [the ruling] would sound reasonable and acceptable,” said Anthony Conti, the officers’ attorney. “I think what’s lost in the opinion is that these three officers were responsible for most of the DUI and DWI enforcement in the District of Columbia. They were personally working with the person who’s uncovering the problems, and he’s telling them about the problems he’s uncovering.”
To not disclose those conversations on the witness stand, Conti argued, would have been illegal.
“The judge says you have to testify to the truth, the whole truth,” he said. “That’s what they believe they were being asked not to do.”
Zabavsky also said that he was punished for sending e-mails complaining that the investigation into the Intoxilyzers was moving too slowly and that officers were not adequately informed of developments.
To that claim, Epstein responded, “It is absurd to contend that whenever an employee expresses frustration about the scope of information-sharing or the pace of decision-making in a large government organization, that employee becomes a whistleblower insulated to a significant degree from adverse personnel actions.”
Moreover, Epstein said, the actions taken against the officers were not retaliatory and were unrelated to their supposed whistleblowing.
Fetting was passed over for a leadership role because he failed to disclose a hit-and-run conviction when asked, Epstein’s ruling said. Rodriguez and Zabavsky were under investigation because of complaints about arrests they made, the judge ruled.
Rodriguez and Zabavsky were investigated based on a prosecutor’s allegation that they had taken a urine sample from a female defendant without a female officer present, according to a 2011 letter to D.C. Council member Phil Mendelson from the Fraternal Order of Police on behalf of the three officers.
Zabavsky also was investigated, Epstein wrote, after a woman he arrested accused him of harassing her. The case was dropped after she declined to cooperate.
Neither of those inquiries, the judge concluded, was meant to retaliate against the officers for whistleblowing. But Conti said the investigations were initiated many months after the complaints occurred, suggesting that they were motivated by the officers’ testimony about the Intoxilyzers.
“It’s not shocking. This is how the courts oftentimes, unfortunately, view the whistleblower act,” Conti said. “We’re just going to have to appeal and see if we can convince the appellate court that the whistleblower act should be a little broader than the way it’s been viewed.”