By Michael P. Stone, Esq. and Marc J. Berger, Esq.
The United States Supreme Court has drastically narrowed the so-called “whistleblower” protections for public employees by holding that the First Amendment offers no protection for employee statements made in the course of performing official duties.
Previously, liability could be imposed on public employers for taking adverse measures against employees in retaliation for a statement made on a matter of public concern. In a new case, Garcetti v. Ceballos, (May 30, 2006), the Court held that an employer is now permitted to respond with discipline or other adverse action if the employee’s statement was made in the course of the performance of the employee’s official duties, and the employer considers the statements unfavorable to the employer’s interests.
The decision was rendered by a now familiar five to four majority divided along ideological lines. The Court’s majority professed to be concerned about avoiding the constitutionalizing of routine employee grievances. But the Court’s response to the perceived problem creates new employment relations problems worse than the one it purports to solve.
The plaintiff in the case, Richard Ceballos, is a Los Angeles County Deputy District Attorney, and was assigned as Calendar Deputy, a position that entailed evaluating and investigating cases. Ceballos became aware of alleged misrepresentations in a search warrant affidavit in a pending case, and organized an office meeting where he recommended that the case be dismissed. Instead of dismissing the case, the DA pressed forward with the prosecution, and Ceballos soon found himself reassigned, transferred, and denied a promotion. Ceballos brought a civil rights action alleging retaliation for his exercise of constitutionally-protected free speech.
Traditionally, a claim of retaliation for exercise of First Amendment rights is handled by applying a balancing test that weighs the importance of the free speech right asserted by the employee, against any legitimate government interest in restricting the speech. See, e.g., Pickering v. Board of Education (1968) 391 U.S. 563. The first step in this balancing process inquires into the degree of constitutional protection the statement should receive. The core value protected by the First Amendment is the right to criticize the government. Therefore, speech that pertains to matters of important public concern receives the highest degree of constitutional protection, compared to speech relating to subjects such as internal employment matters, employee grievances, or personal matters, which receives little or none.
It is widely recognized that the government has a right to restrict speech that is disruptive of its operations, or that brings about discord and inefficiency. However, absent a specifically demonstrated concern for governmental operation, a vague assertion of the general value of efficiency and administrative convenience usually does not prevail over the constitutional value of speech on matters of public concern.
Under former law, a statement such as made by Ceballos, that misrepresentations were being made in search warrant affidavits, would easily be found a matter of public concern meriting the highest degree of protection. In a nutshell, Ceballos’ statements might be the equivalent of exposing perjurious testimony and corruption by governmental officers. Retaliatory employment actions taken in response to his statements could be viewed by the jury as an effort to “silence” him, to punish him, to make an example of him to others, and to intimidate him from making similar statements in the future.
In Ceballos, the Court seized upon a distinction that had barely been noticed in prior cases, observing that the disclosure made by Ceballos was part of his regular job assignment to evaluate pending cases. The Court first determined that the purpose of recognizing a role for the First Amendment in public employment has been to guarantee that public employees, like all citizens, are free to speak their minds without fear of employment retaliation. Thus, when a public employee contacts a local newspaper about corruption in the government workplace, the Constitution should provide maximum protection against retaliation.
But the Court now sees a distinction where the employee speaks out in the course of performing official duties. In the Court’s eyes, the employee is not simply doing what any citizen is free to do; instead the employee is performing a function of government activity that the government as employer has an absolute right to control. The answer to this situation for the Court could hardly be simpler: Remove all Constitutional protection from such speech, and leave supervisory officials with unbridled discretion to retaliate against and discipline an employee who in the course of official performance, makes statements contrary to their subjective preferences.
Recognizing that government employers “need a significant degree of control over their employees’ words and actions,” the Court has fostered a situation that the critics say will give the supervising public official at least the raw power to ignore apparent official misconduct if the official opts to accept the attendant risks, and can silence subordinate employees who refuse to “go along to get along.”
In the Ceballos case, the Court took its cue from a dissenting opinion by Ninth Circuit Judge Diarmuid O’Scannlain, who perceived a need to distinguish between public employees speaking as employees, as contrasted with speaking as “citizens.” The Court quoted with approval Judge O’Scannlain’s premise that “when employees speak in the course of carrying out their routine, required employment obligations, they have no personal interest in the content of that speech that gives rise to a First Amendment right.”
The Court noted that its own precedents had already recognized that “a government entity has broader discretion to restrict speech when it acts in its role as employer, but the restrictions it imposes must be directed at speech that has some potential to affect the entity’s operations.” The Court observed “the government as employer indeed has far broader powers than does the government as sovereign.”
Turning to the issue of whether Ceballos’ statements were entitled to First Amendment protection, what made the critical difference to the Court was “that his expressions were made pursuant to his duties as a calendar deputy.” The fact that Ceballos “spoke as a prosecutor fulfilling a responsibility to advise his supervisor about how best to proceed with a pending case” removed the Constitutional protection against resulting discipline that would otherwise exist. Accordingly, the Court held that “when public employees make statements pursuant to their official duties, the employees are not speaking as citizens for First Amendment purposes, and the Constitution does not insulate their communications from employer discipline. Restricting speech that owes its existence to a public employee’s professional responsibilities does not infringe any liberties the employee might have enjoyed as a private citizen. It simply reflects the exercise of employer control over what the employer itself has commissioned or created.”
Critics have already argued that the Court’s new rule blows a large hole in the Constitutional armor that protects public employees, while simultaneously drawing a fictional line between public employees “speaking in the course of official duties” on one hand, and as “citizens” on the other; a line-drawing exercise the Court implicitly concedes will engender a new round of litigation. As pointed out in Justice Souter’s dissent in Ceballos, the Court places beyond the reach of Constitutional protection a public auditor’s discovery of embezzlement, a building inspector’s report of an attempted bribe, or a law enforcement officer’s refusal to obey an order to violate someone’s Constitutional rights. Justice Souter also argued that the Court’s opinion failed to account “for the undoubted value of speech to those, and by those, whose specific public job responsibilities bring them face to face with wrongdoing and incompetence in government, who refuse to avert their eyes and shut their mouths.”
In our view, the actual effect of the decision is more likely to (1) encourage employees to make their report to the press instead of the employer; (2) encourage employers to adopt expansive job descriptions to bring more employee speech into the now-unprotected scope of official duty; (3) spawn litigation over the validity of the newly-adopted employee duties in these job descriptions; (4) discourage reporting of governmental corruption, fraud, incompetence and mismanagement; and (5) in turn, lead to an increase in the frequency and severity of governmental misconduct, malfeasance and corruption. Having done all this with seemingly little appreciation for the real problem needing to be solved, the Supreme Court has creatively dismantled civil rights faster than the Warren Court ever discovered them.
Now that the new rule is established as a United States Supreme Court precedent, public employees and their unions really have no satisfactory response available. Justice Stevens observed in a dissenting opinion, “it seems perverse to fashion a new rule that provides employees with an incentive to voice their concerns publicly before talking frankly to their superiors.” We think employers and employees alike must regrettably agree with Justice Stevens’ assessment, and recognize that under the Court’s new rule, there may well be situations in which employees are better off going to the press than to their employer. Precisely when this choice should be made cannot be predicted in a vacuum, but it pains us to observe that the Court has forced that choice on all who are on the front lines of protecting public integrity, whether they are department heads, managers, supervisors or subordinate employees.
**Michael P. Stone is the founding partner of Stone Busailah, LLP. He has practiced almost exclusively in police law and litigation for 27 years. He is a former police officer, agent, supervisor, and police attorney, and has been an active police trainer over his entire career.
**Marc J. Berger is the firm’s senior law and motion, and writs and appeals specialist. He has been working with Michael P. Stone since 1986.
This article appears in the July 2006 issue