Tuesday, May 30, 2006

Supreme Court whistleblower ruling

Today the Supreme Court made what is being called a significant ruling on protections for government whistleblowers.

In a victory for the Bush administration, justices said the 20 million public employees do not have free-speech protections for what they say as part of their jobs.

Critics predicted the impact would be sweeping, from silencing police officers who fear retribution for reporting department corruption, to subduing federal employees who want to reveal problems with government hurricane preparedness or terrorist-related security.

Supporters said that it will protect governments from lawsuits filed by disgruntled workers pretending to be legitimate whistleblowers.

It's best to say up front that my bias in cases like this is to favor the whistleblower. There are already enough barriers to uncovering wrongdoing; why create more? And the government does not need protection from lawsuits. Lawsuits that are without merit will be dismissed, or the government will win the case. That's how it's supposed to work.

In the case at hand, the known facts are these: a Los Angeles County prosecutor, Richard Ceballos, wrote a memo suggesting that a sheriff's deputy may have lied in a search warrant affidavit. He was later demoted and denied a promotion.

The case comes down to whether the demotion was related to the memo, and if so, was Ceballos entitled to protection from such retaliation.

There's some legitimate murkiness here, as Justice Kennedy outlined:

Kennedy said if the superiors thought the memo was inflammatory, they had the authority to punish him.

"Official communications have official consequences, creating a need for substantive consistency and clarity. Supervisors must ensure that their employees' official communications are accurate, demonstrate sound judgment, and promote the employer's mission," Kennedy wrote.

Fair enough. The key is distinguishing actions and consequences. Was he justifiably disciplined because the memo was inflammatory? Or was he unfairly disciplined because he raised an uncomfortable question?

But this ruling is just a bit weird, because it strips protections only from employees whose speech is related to their official duties.

So, it appears that if one's duties are to expose wrongdoing in the workplace, such exposure is entitled to no constitutional protection, but that if an employee whose duties do not involve such whistleblowing makes the exact same complaint, then [protection] still applies. A somewhat odd result, at least on first glance. And odder still: Under today's opinion, if Mr. Ceballos had written a newspaper article complaining about the wrongdoing in question, rather than taking the matter to his supervisor, he would at least be entitled to whatever constitutiional protection Pickering/Connick offers. Does today's decision therefore give employees an incentive to go outside the established channels -- to take their concerns to the newspapers, instead of up the established chain to their supervisors?

So rather than providing clarity, the court has further muddied the waters.

One man's whistleblower is another woman's disgruntled employee, of course. And some whistleblower lawsuits are indeed without merit. But this ruling doesn't do anybody any favors. It practically orders government workers to go to the press instead of using established channels, and it makes true whistleblowers even more vulnerable to retaliation than they were before. Fabulous.

Perhaps this is an example of a conservative court throwing the ball back into Congress' court -- putting pressure on the legislative branch to pass a law clarifying the issue. But in the meantime we end up with a confusing precedent that will likely spur further lawsuits, thus foiling even the stated intent of the ruling's supporters.

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2 Comments:

Anonymous Marc Schneider said...

It seems odd to me because we don't know if the memo was correct or not. It seems logical that if the employee wrote a memo in the performance of his duty that was incorrect, he should not be protected from his incompetence or malfeasance simply because of free speech. If the memo was correct and he was punished because the department didn't like it, that's of course a different story. It's not an easy issue. As a federal government worker, I have seen a number of cases where employees disagreed with a particular decision on rather specious grounds and proceeded to release confidential material to the opposing side. I don't think this should be protected as free speech. Frankly, it sort of depends on if you think the employee is right or not.

5/31/2006 11:02 AM  
Blogger Sean Aqui said...

Agreed.

It seems like it should be a simple problem. Either the memo rises to whistleblower status or it does not. If it does, he should be protected; if it doesn't, he shouldn't. That can be a very subjective determination to make, but how does the Court's ruling help?

One palatable interpretation of the ruling might be that work-related speech is not protected unless it meets specific criteria that elevate it to whistleblower status -- exposing possible criminal activity, for instance. But the court's ruling seems more sweeping than that, because they didn't suggest such a test.

The ruling all but invites more lawsuits to clarify the issue.

5/31/2006 2:00 PM  

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