Leelanau County and former county administrator David Gill are not off the hook after all over the 2007 firing of county Building Inspections department head Robert VanDyke.

A state Appeals Court panel last week overturned a 2008 decision by local Circuit Court Judge Thomas G. Power to dismiss a Whistleblower Protection Act lawsuit VanDyke filed against the county and Gill.

Gill fired VanDyke on Jan. 4, 2007, two working days after VanDyke rescinded occupancy permits for every unit at the troubled BayView condominium development in the Village of Suttons Bay, citing potential health and safety concerns related to the installation of furnace and water heater exhaust vents. One day after VanDyke was fired, Gill reversed VanDyke’s decision to rescind the occupancy permits at BayView and declared that no code violations or safety issues existed at the development.

The following year, after the state Bureau of Construction Codes threatened to shut down the Leelanau County Inspections Department and subjected the department to an intense probe, state inspectors found that VanDyke’s observations were correct and that numerous code violations existed at BayView. The violations have since been corrected.

Gill and other county officials have steadfastly insisted that VanDyke’s firing was not related primarily to issues surrounding BayView, however. In a letter to VanDyke, Gill said he had the authority to fire VanDyke “for any or no reason” and that he “need not provide any explanation for (his) decision” because VanDyke was an “at-will” employee. “However, the fact that you (VanDyke) have lost control of managing your department was considered in the decision to terminate your employment,” Gill wrote.

As part of his Whistleblower Protection Act (WPA) lawsuit against the county, VanDyke also claimed that he was fired because he attempted to initiate criminal prosecution of a contractor who he said violated the state electrical code while working on the Leelanau County Government Center, still under construction in 2007. The Government Center has since passed electrical code inspections and no one has been been prosecuted for any code violations.

In Circuit Court in 2008, an attorney for Gill and Leelanau County argued that the WPA did not apply to a government enforcement officer making reports as part of his official duties. Power agreed and dismissed the case.

Last week, the Appeals Court upheld some of Power’s findings, but reversed others. The Appeals Court agreed with Power that VanDyke’s effort to rescind occupancy permits for the BayView condos was not a “protected activity” under the WPA. But they disagreed with Power’s opinion that VanDyke’s “report” to Gill about the code violations was not a protected activity under the WPA.

The Appeals Court also agreed with Power that VanDyke’s effort to discipline inspectors who conducted faulty inspections was not protected under the WPA. But the appeals panel disagreed with a ruling Judge Power made early in the case that it should be tried in Leelanau County rather than Grand Traverse County, where VanDyke originally filed suit and where he resided at the time.

VanDyke’s attorney, Mark Hullman of Traverse City, told the Enterprise this week he felt the Appeals Court’s ruling was “very well reasoned and very thorough.” He noted that during a mandatory “case evaluation” process conducted in 2008, two members of a three-member panel of attorneys agreed that VanDyke’s claims against the county were “worth a fairly substantial sum of money – which we would have taken from the county at that time.”

One of the attorneys involved in the 2008 case evaluation process, however, opined that Power would “throw the case out,” Hullman said, “and that turned out to be correct – but now it’s back, of course.”

Hullman said he concedes that Power’s and the Appeals Court’s determination that the revocation of occupancy permits at BayView was not a “protected activity” under the WPA. But he added that he was encouraged by the Appeals Court’s determination that reports made by VanDyke to Gill were protected under the WPA.

As to the issue of venue, Hullman said he was pleased that the case will be tried in Grand Traverse County rather than Leelanau County even though the same judge would likely handle the case.

“The thinking is that a jury in Grand Traverse County would be less biased than a jury in Leelanau County because jurors who pay taxes in Leelanau County would be worried about how much their taxes might increase if they awarded my client the amount of money he actually deserves,” Hullman said. “So, the way this case will end up is this – my client will either get an offer of money from Leelanau County, or a jury in Grand Traverse County will decide how much this whole issue is worth.”

An attorney representing Leelanau County and Gill in the case, John McGlinchy of Lansing, said he believed the Appeals Court’s analysis of Power’s ruling was “very inconsistent,” and that he believed Power “did quite a good job of analyzing” the law as it applied to the case.

McGlinchy said this week that he was contemplating filing a motion asking the state Appeals Court to reconsider its opinion.