Sunday, June 22, 2014

A Whistleblower's Empty-Handed Victory

      Edward Lane won an important First Amendment victory for whistle-blowing public employees from the Supreme Court last week, but he is unlikely to get anything for his troubles besides a copy of the decision to frame and hang on his wall. The Supreme Court itself bears part of the blame for Lane’s empty-handed win because of an ambiguous decision eight years ago that seemed to leave public employees with no protection for blowing the whistle when they learn of corruption on their jobs.
       After being named the director of a government-funded program for disadvantaged youths in Alabama in 2006, Lane discovered that an Alabama state legislator had bilked the program out of $177,251.52 as a “no-show” employee. Lane fired the legislator, Suzanne Schmitz, despite advice from his superiors to avoid antagonizing Schmitz or the state legislature.
      Lane later testified against Schmitz, under subpoena, before a federal grand jury and in two criminal trials. Schmitz was convicted in 2009 for mail fraud and theft, sentenced to prison, and ordered to repay the money. But Lane, instead of receiving commendation, was himself fired that year by Steve Franks, president of the state community college that housed Lane’s program. 
       Franks, who has since retired, depicted Lane’s dismissal as budget-related. But Lane was convinced that Franks fired him in retaliation for his whistle-blowing. Lane sued Franks in federal court in 2011, claiming that the alleged retaliation violated his First Amendment right to freedom of speech.
       The Supreme Court first explicitly recognized free-speech rights for government employees in a 1968 decision, Pickering v. Board of Education. The unanimous decision effectively reinstated an Illinois school teacher who had been dismissed after having written a letter to the editor of the local newspaper criticizing the local school board’s handling of a proposed bond issue.
      The teacher, Marvin Pickering, claimed that the school board had sought to silence teachers critical of the proposal. Writing for the Court, Justice Thurgood Marshall concluded that Pickering was speaking “as a member of the general public” and that the school board could not use his remarks as the basis for dismissal.
      Four decades later, the Court muddied the waters with a decision in the first term under Chief Justice John G. Roberts Jr. The conservative bloc provided the votes for a 5-4 decision in Garcetti v. Ceballos (2006) that rejected a retaliation suit by a deputy Los Angeles district attorney, Richard Ceballos. Ceballos was demoted because of an internal memo that concluded police had lied in obtaining a search warrant in a criminal case. Ceballos’s supervisors disagreed with his conclusions and — after the judge upheld the search warrant anyway — removed him from a supervisory position.
      Writing for the majority, Justice Anthony M. Kennedy said Ceballos was acting within his official duties, not as a citizen, and that the First Amendment does not prohibit disciplining a public employee in that capacity. The lower courts in Lane’s case read that decision to apply to his testimony in Schmitz’s case because he learned of Schmitz’s no-show job pursuant to his official duties. The Eleventh U.S. Circuit Court of Appeals rejected Lane’s suit on that basis and, as an alternate holding, ruled Franks entitled to qualified immunity anyway because any constitutional protection Lane might have had was not clearly established.
      In its decision last week [June 19], the Supreme Court unanimously concluded that the Eleventh Circuit got it wrong — at least on the substantive point. Lane was testifying in court as a citizen, not as a public employee, Justice Sonia Sotomayor wrote. The appeals court read the earlier decision, Garcetti, “far too broadly,” she wrote. A public employee called to testify about official corruption, she explained, should not be placed in “an impossible position, torn between the obligation to testify truthfully and the desire to avoid retaliation and keep their jobs.”
      Sotomayor said there was “no doubt” that the Eleventh Circuit misread Garcetti, but she acknowledged that the Supreme Court’s own ruling was not “sufficiently clear.” So, for that reason, the justices agreed that Franks was off the hook under the qualified immunity doctrine — that odd court-created rule that effectively gives a public official one free pass for violating an individual’s constitutional rights.
      Lane is now working as a security guard at the Army base in Anniston, Ala., at about one-third of his old salary. Theoretically, he can still proceed with the part of his suit seeking reinstatement to his job, but the position apparently no longer exists and the state may have a sovereign-immunity defense anyway. But local columnist John Archibald, writing for Alabama Media Group, rightly suggests that the community college system ought to be able to find a place for Lane, who has a master’s degree besides a finely honed sense of ethics.
      In any event, Supreme Court watchers say the ruling gives future whistle-blowers in government corruption or national security cases protections that had been uncertain after the 2006 decision. Quoting from the Court’s earlier decision, Pickering, Sotomayor stressed that public employees are well positioned to have informed opinions about the workings of government. “It is essential,” the Court said back then, “that they be able to speak out freely on such questions without fear of retaliatory dismissal.”

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