Welles: Whistle-blowers are wary

New Supreme Court decision puts protection of public employees back in Congress’ court

The Supreme Court has ruled in the case of Garcetti et al. v. Ceballos that free speech protections do not always apply to government workers who expose wrongdoing. But observers disagree about whether the decision will truly harm federal whistle-blowers. Some fear the decision will have a chilling effect while others believe it will prompt Congress to pass legislation to reinforce whistle-blower protections.

The Supreme Court decision concerned Richard Ceballos, a deputy district attorney in Los Angeles who wrote a memo saying that police officers made serious misrepresentations in an affidavit for a search warrant. Ceballos was later denied a promotion because of his memo, which his supervisors said was inflammatory. He sought protection through the courts, asserting that the retaliatory action violated his right to free speech under the First Amendment.

Ceballos expressed disappointment about the Supreme Court’s decision. “I think the court’s ruling clearly strikes a blow to all government employees,” he told the Associated Press. “It creates a disincentive for government employees to report misconduct, waste or fraud that they witness.” As the Los Angeles Times observed, the Supreme Court made a distinction between “citizen speech” and “employee speech.” In a 5-4 decision, the court concluded that free speech protections do not apply to government employees who expose actions related to their duties as employees.

William Bransford, who has defended whistle-blowers as general counsel for the Senior Executives Association, said he does not think the decision will have a significant adverse impact on federal employees. The court’s decision removes one option for whistle-blowers but doesn’t take away an employee’s right to file a complaint.

“Usually a whistle-blower will file under a protection statute with the Office of Special Counsel,” Bransford said. “An alternative was to go to federal court, and that alternative is gone.” The U.S. Office of Special Counsel is an independent agency that protects federal employees from reprisal for whistle-blowing. Under current law, Bransford said, federal whistle-blowers are denied protection for actions related to their duties as public employees. If an auditor, for example, reports financial wrongdoing and suffers an adverse action, he or she would be denied whistle-blower protection. The Senior Executives Association, the National Treasury Employees Union and other organizations advocate changing the Whistleblower Protection Act to extend protection to public employees who reveal actions related to their job responsibilities.

“The court basically is saying, ‘Let’s make changes though legislative action, not as a First Amendment right,’” Bransford said.

It remains to be seen whether the Supreme Court ruling makes it harder to change the law or gives the effort momentum. Sen. Daniel Akaka (D-Hawaii), ranking member of the Senate Homeland Security and Governmental Affairs Committee’s Oversight of Government Management, the Federal Workforce and the District of Columbia Subcommittee, issued this statement: “Because the court has decided against protecting employees, Congress must pass legislation to strengthen the rights and protections of federal whistle-blowers.”

Akaka has introduced a bill, the Federal Employee Protection of Disclosures Act, that would expressly protect whistle-blowers for disclosing information in the course of their job duties. Despite broad support, the bill has languished in Congress.

Welles is a retired federal employee who has worked in the public and private sectors. She lives in Bethesda, Md., and writes about work life topics for Federal Computer Week. She can be reached at judywelles@fcw.com.

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