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First Amendment Sometimes Left at Workplace Door

By Stephen Barr
Thursday, June 1, 2006; D04

The Supreme Court's ruling on freedom-of-speech rights of public employees has created a stir across the government, in part because of the way Justice Anthony M. Kennedy , writing for the 5-to-4 majority, framed the issue:

"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."

Although the wording seemed stark, the court did not redefine federal whistle-blower protections. The majority, in some respects, seemed interested in ensuring that governments can oversee workplaces and that disputes between employees and supervisors do not automatically fall into the realm of a constitutional right.

The case involved a local-government employee, Los Angeles County prosecutor Richard Ceballos , and for the most part addressed only one aspect of his actions -- claims made in a memo written as part of his job duties.

In Tuesday's ruling, the court found that a district attorney's office did not violate Ceballos's freedom of speech by allegedly demoting him after he wrote supervisors about his concerns that a sheriff's deputy had lied to get a search warrant.

Ceballos contended that supervisors later retaliated against him with a demotion, denial of a promotion and a transfer to an office requiring longer commutes. The district attorney's office has denied taking retribution.

The Supreme Court majority said Ceballos could not seek First Amendment protection because the memo laying out his allegations was written as part of his job duties and because supervisors have authority "to take proper corrective action" if they think such a memo is "inflammatory or misguided."

Kennedy, however, noted that public employees who make statements outside the course of performing their official duties "retain some possibility of First Amendment protection" because they are acting in the same manner as citizens who do not work for the government.

Government agencies troubled by the notion that employees might make whistle-blowing claims as citizens outside the workplace can take steps to address the issue, Kennedy suggested.

"A public employer that wishes to encourage its employees to voice concerns privately retains the option of instituting internal policies and procedures that are receptive to employee criticism," he wrote. "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."

While that may be sound advice, numerous federal whistle-blowers have complained over the years that agencies fail to handle their complaints in a confidential manner and to protect them from reprisals by their superiors.

The four justices in dissent suggested that public employees should be eligible to claim First Amendment protection in the course of their duties. Justice David H. Souter pointed out that public workers have been given a "patchwork" of protections and noted that federal employees have no protection for disclosures made to immediate supervisors, for statements of publicly known facts or for statements made in connection with normal employment duties.

In a newsletter last year, the Merit Systems Protection Board said employees need to be careful in how they blow the whistle on violations of law and rules, gross mismanagement, gross waste of funds, abuse of authority and specific dangers to public health and safety.

An employee can blow the whistle by calling an inspector general hotline, going outside the chain of command or by talking to the news media, the newsletter suggested. Employees faced with reprisals can appeal to the board or ask for investigations by an independent agency, the Office of Special Counsel.

The Supreme Court ruling may slow momentum in Congress for redefining whistle-blower protections. Sen. Daniel K. Akaka (D-Hawaii), with bipartisan support, is pushing for legislation that would permit a federal whistle-blower to be protected for disclosing information learned on the job or in the course of job duties.

The Justice Department has opposed taking that step, and at least one senator has placed a hold on Akaka's bill, according to congressional aides.

Stephen Barr's e-mail address