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Whistleblowing: Truth really is no defense

JEFF RUCHwriters on the range

On May 30, Justice Samuel Alito cast his first deciding vote, and in doing so struck a blow for muzzling public servants at all levels of government. The 5-4 majority in Garcetti v. Ceballos held that public servants have no First Amendment rights in their role as government employees.This decision makes it easier to punish people who work for government for uttering inconvenient truths; public employees will be far more reluctant to voice concerns to their bosses – making for very chilly cubicles. The case involved Richard Ceballos, a deputy district attorney in Los Angeles County who was concerned that a search warrant affidavit prepared by the sheriff’s office appeared bogus. After reviewing the evidence and interviewing the deputy who swore the affidavit, he became convinced that something was amiss. He then wrote a memo urging the withdrawal of the search warrant. For his troubles, Ceballos was transferred and ostracized.In other contexts, Richard Ceballos would be the public servant protesting to higher-ups about the “interrogation” techniques at Abu Ghraib, sounding the alarm about weak levees in New Orleans or exposing suppression of global-warming science. But as Ceballos discovered, managers rarely reward whistleblowers, and under the Supreme Court’s formulation, telling the truth is no defense against management retaliation. Public employees will now point out problems to supervisors only at their own risk. To compound matters, many whistleblower statutes also exclude disclosures made within the scope of duties. Thus, internal agency communications often lack any legal protection whatsoever.For private citizens, this will undoubtedly make an increasingly opaque government even less transparent. It is far harder to monitor the inner workings of government if public servants are reluctant to place discordant information on the record and on the job. When combined with the almost obsessive message-control of the Bush administration, this decision further legitimizes suppression of information as official policy.Paradoxically, the court held that civil servants enjoy First Amendment rights when they act outside their work role and go public. In other words, an agency professional who tries to resolve problems in-house risks being fired, but that same person who plasters the issue across the front page of the paper is constitutionally protected. From the standpoint of government efficiency, it makes no sense to protect statements made in public but punish those same statements when uttered within the confines of the workplace.Justice Anthony Kennedy, writing for the majority, pooh-poohed this “anomaly,” writing, “Giving employees an internal forum for their speech will discourage them from concluding that the safest avenue of expression is to state their views in public.” Perhaps he’s thinking of suggestion boxes. Justice Kennedy misses the real anomaly that any government agency willing to suppress employee dissent through discipline or termination is not much interested in employee criticism at all.As a practical matter, most public-agency specialists try to resolve matters internally. Since they are the agency’s experts, they are usually convinced of the rightness of their position, and their natural inclination is to elevate an issue up the chain-of-command until wisdom prevails. Under Ceballos, that internal elevation will more likely become a descent into a career inferno. Perhaps even more troubling is the central premise of the ruling, that public employees per se have no citizenship status because their speech is owned by the government. This judicial reduction places public workers on a constitutional par with prisoners.The boogeyman raised by conservative commentators is that we do not want to constitutionalize the government workplace. That argument fails for two reasons: The Ceballos ruling now requires federal courts to wade in and figure out whether employees are speaking in their roles as citizens or as part of their job, in some instances an elusive distinction; and, the government workplace is already constitutionalized with due process guarantees, buttressed by civil service rules. All the Ceballos court did was remove constitutional involvement in matters of public interest, limiting the role of the Constitution to policing private interests. The only door the Court left ajar is for Congress and state legislatures to enact stronger and broader whistleblower protection laws. In the meantime, candor inside government will become an even rarer commodity. Jeff Ruch is a contributor to Writers on the Range, a service of High Country News (hcn.org). He is the executive director of Public Employees for Environmental Responsibility (PEER), an organization that works with government whistleblowers in Washington, D.C.


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