Supreme Court
Addresses Free Speech by Public Employees
A
recent United States Supreme Court opinion limits First Amendment
protection for public employee whistleblowers, although the decision may
have little impact in California.
In
a 5-4 decision, the high court ruled that speech by public employees is not
protected by the First Amendment when made pursuant to the employee's
official duties. Justice Anthony Kennedy wrote the opinion for the majority
and was joined by Justices Roberts, Scalia, Thomas and Alioto.
Garcetti v. Ceballos,
No. 04-0473, slip opinion (May 30, 2006).
Deputy District Attorney Reported Alleged Misconduct
The
lawsuit was brought by Richard Ceballos, who had
been employed since 1989, as a deputy district attorney for the Los Angeles
County District Attorney’s office. In February of 2000, while working as a
calendar deputy with some supervisory responsibilities, he learned from a
defense attorney that there were inaccuracies in an affidavit filed by a
sheriff in order to obtain a critical search warrant. The defense attorney
asked Ceballos to review the case.
After
examining and reviewing the affidavit and the location described therein, Ceballos concluded that the affidavit made serious
misrepresentations. Ceballos relayed his findings
to his supervisors and followed up with a memorandum recommending
dismissal. He did not receive a satisfactory explanation.
The
district attorney's office decided to proceed with the prosecution. The
defense challenged the warrant, and Ceballos
testified during a hearing on the challenge as to his observations about the
affidavit. The trial court rejected the challenge.
Deputy District Attorney Claimed Retaliation for His Report
Ceballos claimed that after he challenged the
affidavit, he was subject to retaliation. The actions included reassignment,
transfer to another courthouse, and denial of a promotion.
Ceballos sued the district attorney's office
under 42 U.S.C. § 1983 alleging violations of the First and Fourteenth
Amendments. The district attorney's office sought summary judgment alleging
that no retaliatory actions occurred, and that the actions complained of
were explained by legitimate reasons. The district attorney's office
further alleged that Ceballos' memorandum was not
protected free speech under the First Amendment.
The
district court agreed and held that the memorandum was not entitled to
protection under the First Amendment. The court of appeals for the Ninth
circuit reversed, holding that the memo was protected, and the Supreme
Court subsequently granted the attorney's request for review.
Statements Made Pursuant to Official Duties Not Protected
The
Supreme Court held that when public employees make statements pursuant to
their official duties, they are not speaking as citizens for First
Amendment purposes, and their communications are not protected from
employer discipline.
The
Court explained that restricting speech that is part of a public employee's
professional responsibilities does not violate any liberties that the
employee enjoyed as a private citizen. Instead, it simply reflects the
exercise of employer control over what the employer itself has commissioned
or created. "Without a significant degree of control over its
employees' words and actions, a government employer would have little
chance to provide public services efficiently."
Critical
to the Court's decision was the fact that the deputy district attorney's
speech was made pursuant to his official duties as a prosecutor. Neither
the fact that he expressed his views at the office rather than publicly,
nor the fact that the memo concerned his employment was dispositive.
Instead, it was the fact that Ceballos
"spoke as a prosecutor fulfilling a responsibility to a supervisor
about how best to proceed with a pending case" that meant that he was
not speaking as a citizen.
The
Court further held that "[t]he fact that his
duties sometimes required him to speak or write does not mean his
supervisors were prohibited from evaluating his performance."
Deference to Public Employers
Kennedy's
opinion shows great deference to the public employer. The opinion
emphasizes the need for employers to be able to maintain consistent
communications that promote the employer's ultimate goals: "Official
communications have official consequences, creating a need for substantive
consistency and clarity. Supervisors must ensure that their employee's
official communications are accurate, demonstrate sound judgment, and
promote the employer's mission," Kennedy wrote.
While
public employees can "retain the prospect of constitutional protection
for their contributions to civic discourse," they do not have "a
right to perform their jobs however they see fit."
Strong Dissent
The
dissenting justices stated their concern that the ruling could silence
whistleblowers with information about government misconduct.
Justice
John Paul Stevens wrote that, "[p]ublic
employees are still citizens while they are in the office. The notion that
there is a categorical difference between speaking as a citizen and
speaking in the course of one's employment is quite wrong."
Whistleblower Statutes Still Offer Protection –California Offers Such Protection
Stating
the importance of exposing government wrongdoing, the Supreme Court noted
in its ruling that there are whistleblower statutes that offer protection to
employees, as well as labor codes that may protect public employees.
The
Court, however, rejected "the notion that the First Amendment shields
from discipline the expressions employees make pursuant to their
professional duties. Our precedents do not support the existence of a
constitutional cause of action behind every statement a public employee
makes in doing his or her job."
California offers
strong protection to whistleblowers. The California Whistleblower
Protection Act, enacted in 1989, protects state employees who report
wrongdoing from retaliation.
Moreover,
even under this decision, public employees who go outside of their employer
and raise concerns about wrongdoing in a public forum, such as the media,
may receive protection. Internal policies and procedures that allow for
grievances may give employees an internal forum for their speech and make
them less likely to go public."
How to Handle Retaliation Claims
- Inform all
employees who bring a complaint of unlawful conduct by the employer
that they are protected from retaliation and should immediately report
any concerns.
- Educate
supervisors as to the broad protection against retaliation that is
provided to those who participate in the reporting of wrongdoing.
- Carefully review
performance evaluations, disciplinary action, and other actions taken
against employees who have participated in the complaint or whistleblowing process to determine if there is
any hidden retaliation.
Be Aware Of Less Obvious Signs Of
Retaliation, Such As Ostracism.
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