Court turns down the volume on whistle-blowers

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Corlyss_D
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Court turns down the volume on whistle-blowers

Post by Corlyss_D » Tue May 30, 2006 6:35 pm

Court turns down the volume on whistle-blowers

By Bill Mears
CNN

WASHINGTON (CNN) -- A divided Supreme Court ruled Tuesday that government workers who blow the whistle on alleged illegal conduct do not deserve First Amendment protection that would automatically shield them from discipline from their bosses.

The decision creates a higher legal hurdle for the 20 million public service employees nationwide who seek to expose official wrongdoing in the face of possible retaliation.

It was only the second 5-4 opinion issued by the high court since its newest member, Justice Samuel Alito, joined the bench in January. He cast the deciding vote in a case that was argued twice this term, the first time back in October.

At issue is what constitutional guarantees civil servants deserve in speech done as a routine part of their job.

Writing for the majority, Justice Anthony Kennedy noted, "Exposing governmental inefficiency and misconduct is a matter of considerable significance."

But he rejected the idea "that the First Amendment shields from discipline the expressions employees make pursuant to their professional duties."

Kennedy said a "powerful network" of whistle-blower protection and labor laws exist to benefit workers who fear punishment for speaking out. He was supported by Chief Justice John Roberts and his fellow conservatives, Justice Antonin Scalia, Clarence Thomas, and Alito.

The nine-member bench seemed to struggle balancing the need for preserving discretion in many aspects of the workplace with the need to ensure those who expose wrongdoing are not unfairly punished. The majority concluded not every aspect of government work deserves free-speech protection.

The case involves Richard Ceballos, a deputy Los Angeles County prosecutor who investigated allegations that a sheriff's deputy lied on an affidavit to obtain a search warrant in a criminal case.

After looking into a formal complaint by a defense attorney, Ceballos found evidence of misconduct and recommended to his bosses the criminal case be dismissed for that reason. He was asked by his supervisors to tone down the wording of his memo, but the revised letter still contained the conclusion that "grossly inaccurate" statements were made in the deputy's affidavit.

Despite that, prosecutors moved ahead with the case, which involved theft at an auto parts store. Ceballos said he was obliged to tell the defense of his conclusions. He testified about his investigation at the trial, which went in favor of the defendant.

Ceballos claimed his bosses later retaliated by demoting him, making threats, creating a "hostile" work environment, and denying a promotion. He sued and a federal appeals court eventually agreed with him. But the high court reversed the decision.

In dissent, Justice David Souter said civil servants, in some cases, deserve greater free speech protection.

"It stands to reason that a citizen may well place a very high value on the right to speak on the public issues he decides to make the subject of his work day after day," wrote Souter. "These citizen servants are the ones whose civic interest rises highest when they speak pursuant to their duties, and are exactly the ones government employers most want to attract."

Also in dissent were Justices John Paul Stevens, Ruth Bader Ginsburg and Stephen Breyer.

The appeal was originally heard in October, when now-retired Justice Sandra Day O'Connor was still a member of the court. She stepped down before the opinion was completed, and under court rules her vote did not count. That left a 4-4 tie, and the justices decided to rehear the case.

Alito was an especially active questioner during the rearguments in March.

Find this article at:
http://www.cnn.com/2006/LAW/05/30/scotu ... index.html

A good decision. The only honorable course for a whistle-blower is to resign and then go to the press or to authorities. It defies common sense for them to expect the agency they betray to continue employing them.
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Re: Court turns down the volume on whistle-blowers

Post by Ricordanza » Tue Jun 06, 2006 9:36 pm

Corlyss_D wrote:A good decision. The only honorable course for a whistle-blower is to resign and then go to the press or to authorities. It defies common sense for them to expect the agency they betray to continue employing them.
And I say it's a bad decision. I delayed responding until I had the chance to read the entire opinion and the dissents. First of all, this is not a case where a public employee "betrayed" his employer. Quite the contrary. This prosecutor came forward with information that a sheriff's deputy had, essentially, lied under oath to secure a warrant. Not only that, but he had a duty to come forward with this information. Not only that, but he went through the appropriate channels (initially) to report this wrongdoing. And that was his undoing. In the eyes of the majority, his memo to his superior was not protected speech, but when he went outside the chain of command to an outside group, he was then entitled to constitutional protection. What's the sense in that?

I have other criticisms of the majority opinion, but that one is the best example of the wrongheadness of this decision.

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Re: Court turns down the volume on whistle-blowers

Post by Corlyss_D » Wed Jun 07, 2006 3:01 am

Ricordanza wrote: What's the sense in that?
Even government employers have a right to control the behavior of their employees in the execution of the latters' official duties. If the guy wanted to call his employers corrupt and fraudulent, he should have quit his job and gone to the media. Apparently it was a matter of opinion. It didn't help his case that the judge in the underlying case dismissed his concerns about the affadavit supporting the warrant. The decision makes perfect sense to me - and I say that as a 35 yr government employee (retired).
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Re: Court turns down the volume on whistle-blowers

Post by Ricordanza » Wed Jun 07, 2006 5:23 am

Corlyss_D wrote: If the guy wanted to call his employers corrupt and fraudulent, he should have quit his job and gone to the media....The decision makes perfect sense to me - and I say that as a 35 yr government employee (retired).
In my shop, I would much prefer that an employee seek a remedy within the agency before running to the media. This decision goes the wrong way in discouraging a public employee from going to his or her superiors when there is a problem. And I say that as a 22-year government manager (active).

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Post by Ralph » Wed Jun 07, 2006 8:13 am

There are various protections for federal employees who report misfeasance, malfeasance and nonfeasance. There are some very strong state protections too for both public and private sector employees.

The argument for a constitutional right to expose wrongdoing is, at best, a close one and the Court's decision does no real harm to First Amendment protections, especially where government employees are concerned. Their First Amendment rights are to a signifdicant degree circumscribed by the nature of their employment.

Corlyss's rejoinder is a bit off the mark. While resigning and going to the media is the proper course for a government eployee who disagrees vehemently with the policies he/she is tasked to enforce or defend much whistleblowing is about clearly illegal, often criminal, misconduct. No honest employee should ever have to resign to expose dishonest supervisors or co-workers.
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Re: Court turns down the volume on whistle-blowers

Post by Corlyss_D » Wed Jun 07, 2006 2:23 pm

Ricordanza wrote:In my shop, I would much prefer that an employee seek a remedy within the agency before running to the media.
Of course. That gives you the manager the opportunity to investigate what the employee says and come to a conclusion about it. That's the only fair thing to do.
This decision goes the wrong way in discouraging a public employee from going to his or her superiors when there is a problem. And I say that as a 22-year government manager (active).
Unless we are talking about murderers who won't think twice about killing you for what you know, anyone who doesn't go to his management first is just looking for trouble, within and without the agency, for failing to avail himself of the proper administrative remedies within his organization. In the federal government, there's always the IG if the employee wants to be undiscovered. But as a quasi-independent professional like a lawyer, he's being hired by his employers to give his best judgment, not to subvert them after they make the decision. Again, we're talking here of matters of opinion within his organization.
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Post by Corlyss_D » Wed Jun 07, 2006 2:35 pm

Ralph wrote:While resigning and going to the media is the proper course for a government eployee who disagrees vehemently with the policies he/she is tasked to enforce or defend much whistleblowing is about clearly illegal, often criminal, misconduct.
No, most of it is about ambiguous activity. If it were about 'much clearly illegal, often criminal, misconduct, you'd see a lot more public prosecutions.
No honest employee should ever have to resign to expose dishonest supervisors or co-workers.
Well that's a matter of opinion. The employee's reputation is tarnished forever within the agency, regardless of wether he was right or merely zealously wrong. The working atmosphere is poisoned permanently and irreparably. The only effective course for the employee is to raise so much of a stink in a high profile case that some contractor or activist watchdog organization can be persuaded to hire them percisely because of their diligence in uncovering whatever it was. The agency owes them nothing, and the sooner they get out, the better off they'll be. I would no more expect an agency I ratted out to support me for the rest of my working life than I would fly to the moon.
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Post by Ricordanza » Thu Jun 08, 2006 6:04 am

Ralph wrote:There are various protections for federal employees who report misfeasance, malfeasance and nonfeasance. There are some very strong state protections too for both public and private sector employees.

The argument for a constitutional right to expose wrongdoing is, at best, a close one and the Court's decision does no real harm to First Amendment protections, especially where government employees are concerned. Their First Amendment rights are to a signifdicant degree circumscribed by the nature of their employment.
Yes, there are statutory protections for public employees--but they vary considerably from state to state. As Souter's dissent aptly noted, when has the Court ever said (before) that Constitutional rights should be limited based on the availability of statutory protections?

And yes, First Amendment rights of public employees are properly and appropriately circumscribed. But up to now, the limits have been based on the time, place and manner of speech. For example, at an orientation meeting of new employees, I can't make a speech denouncing the head of my department, even if everything I say is true and involves matters of public policy. But this case, for the first time, sets a new boundary line, namely, notwithstanding the propriety of the time, place and manner of my expression, First Amendment protections are gone if the speech is within the scope of my employment--i.e., if I'm doing my job.

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Post by Ralph » Thu Jun 08, 2006 6:13 am

Ricordanza wrote:
Ralph wrote:There are various protections for federal employees who report misfeasance, malfeasance and nonfeasance. There are some very strong state protections too for both public and private sector employees.

The argument for a constitutional right to expose wrongdoing is, at best, a close one and the Court's decision does no real harm to First Amendment protections, especially where government employees are concerned. Their First Amendment rights are to a signifdicant degree circumscribed by the nature of their employment.
Yes, there are statutory protections for public employees--but they vary considerably from state to state. As Souter's dissent aptly noted, when has the Court ever said (before) that Constitutional rights should be limited based on the availability of statutory protections?

And yes, First Amendment rights of public employees are properly and appropriately circumscribed. But up to now, the limits have been based on the time, place and manner of speech. For example, at an orientation meeting of new employees, I can't make a speech denouncing the head of my department, even if everything I say is true and involves matters of public policy. But this case, for the first time, sets a new boundary line, namely, notwithstanding the propriety of the time, place and manner of my expression, First Amendment protections are gone if the speech is within the scope of my employment--i.e., if I'm doing my job.
*****

Restrictions have not been limited to time, manner and place. Many agencies forbid employees to engage in substantive discussion about their work or their agency's without prior approval. An Army officer who writes an article attacking the administration's Iraq policy has no protection against repercussions that end his career. Similarly, federal law enforcement agents (like state and municipal police) may not comment on policies and actions without approval.

Constitutional rights can not be determined based on whether an alternative exists. In this instance the question before the Court was whether there is a fundamental First Amendment right and the answer is no.
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