Evelyn Pringle June 8, 2006
According to US Census Bureau statistics, in 2002, there were over 21 million federal, state, and local government employees in the US. These employees are in the best position to expose misconduct and abuses of power that arise in government agencies. However, the recent US Supreme Court decision effectively muzzles the nation's watchdogs.
Attorney Barry Turner, a Lecturer of Law at Leeds Law School in the UK, describes the Supreme Court’s decision absurd. "Transparency is essential in any democracy and is a bulwark against corruption, which,” he points out, “requires secrecy to survive."
"Any society or administration that facilitates secret deals and hides from the truth can only court corruption," he warns.
"Gagging whistleblowers," he contends, "can only assist the corrupt, the criminal and the fraudster."
In a nutshell, the question before the Supreme Court was: Does a prosecutor who speaks on a matter of public concern by reporting police misconduct lose his First Amendment protection against retaliation solely because he communicated the message while performing his job?
The plaintiff in the case was Richard Ceballos, a Deputy District Attorney in the Los Angeles County District Attorney’s Office who informed his supervisors that he believed a Deputy Sheriff had falsified an affidavit to obtain a search warrant in a criminal case.
After Ceballos relayed his findings, he followed up with a written memorandum recommending the dismissal of the case. At a hearing on a motion to challenge the search warrant, Ceballos was subpoenaed by the defense and testified about his findings regarding the affidavit.
According to Ceballos, he filed the lawsuit after he was demoted and denied a promotion, in direct retaliation for the statements he made in the memo and during his testimony. He maintains he is entitled to protection for speech on a matter of public concern regardless of whether the communication was made in the course of performing his job duties.
In response to a motion for summary judgment by the government defendants, the District Court disagreed and said the memo was not protected speech because Ceballos wrote it as part of his employment duties.
Ceballos appealed the decision and the Ninth Circuit Court of Appeals reversed the lower court's ruling and held that the memo’s allegations were protected.
The government then appealed to the Supreme Court and the case was argued twice, once when Sandra Day O'Connor was still on the bench, and again after she retired and Samuel Alito took her place.
The newest Justice Alito, cast the tie-breaking vote in ruling not only against Ceballos, but against the public's right to know what their government is up to according to critics.
Attorney Tom Devine says, “this decision is outrageous.”
“Canceling the constitution for “duty speech,” he warns, “means that government employees only have an on-the-job right to be “yes people,” parroting false information and enabling illegality.”
Mr Devine, is the legal director at Government Accountability Project (GAP), a non-profit, non-partisan whistleblower support organization. He has represented FDA whistleblower, Dr David Graham, and has assisted some 4,000 whistleblowers formally or informally since coming to GAP in 1979.
When public employees are muzzled, it follows that the public will be deprived of information on important public issues, such as police misconduct in this case. Society relies on public employees like Ceballos to communicate information about abuse of authority and other matters of great importance, because they are the members of the community who are most likely to have informed opinions on the operations of their public employers.
According to court filings, Ceballos had served as a Deputy District Attorney since 1989. In the latter part of the 1990s he was assigned to the DA’s Office as a trial deputy and less than a year later, he was promoted to calendar deputy, a position giving him supervisory authority over junior prosecutors and responsibility for prosecutions brought in the court to which he was assigned.
In March 2000, when the events in this case were unfolding, the intense scrutiny focused on LA police officers was at an all-time high. In September, 1999, one of the worst law enforcement corruption scandals in history came to light and involved widespread abuses by a unit of the LAPD assigned to the Rampart area of the city.
The scandal began unraveling when Rafael Perez, a member of the Rampart unit, was being tried on drug-theft charges, and revealed that he and another officer had shot an unarmed man, and to cover it up, had planted a gun on the dead man.
In the end, in exchange for leniency, Perez implicated dozens of officers in criminal misconduct, that included attempted murder, beatings, planting evidence, false imprisonment, theft of money and drugs, unauthorized searches, obstruction of justice, perjury, and filing false police reports, according to the Report of the Rampart Independent Review Panel 5 (2000).
Before it was all over, the scandal resulted in the overturning of more than 100 convictions, the exodus of more than a dozen police officers, the payment of $70 million in damages to victims, and the LAPD’s entry into a consent decree with the US Department of Justice requiring extensive reforms.
Against this background, in February 2000, a lawyer representing a defendant in a case assigned to Ceballos’ court, asked him to investigate whether one of the arresting deputies had lied in an affidavit to obtain a search warrant to search the defendant's property. The defense attorney also filed a motion to challenge the warrant.
Ceballos agreed to look into the matter and started by reviewing the file and speaking to the prosecutor on the case. While comparing the photographs and a videotape of the property searched to the property described in the affidavit, Ceballos noticed a clear mischaracterization in the affidavit, and saw that it did not at all match what the photographs were depicting, so Ceballos decided to visit the crime scene to check it out further.
After verifying the mischaracterization, Ceballos called and spoke to the deputy and confronted him with the accusation that he had lied in the affidavit, and according to court filings, the deputy told Ceballos: “Well, that’s what they told me,” referring to two other deputies.
When Ceballos showed his fellow prosecutors the photographs and videotape and described what he found at the crime scene, every prosecutor he consulted with agreed that the validity of the warrant was questionable.
He then showed his supervisors the videotape and photographs and described what he had observed at the property and says they too agreed that there was a problem with the warrant.
After all this, Ceballos determined that the prosecution could not justify pursuing the case if the warrant was invalid and prepared a memorandum reporting that the affidavit relied on was inaccurate, misleading, and contained possibly outright false information and recommended that the cases against the 3 defendants be dismissed.
Ceballos’ original memo accused the deputy of perjury but after she reviewed the memo, his supervisor directed Ceballos to make it less accusatory, because it was to be shared with the Sheriff’s Department.
Ceballos complied, but he continued to assert that the deputy’s characterizations were “grossly inaccurate,” “clearly misleading,” omitted key facts, and were possibly fabricated.
Ceballos maintains that he spoke up to bring the abuse of authority to light and believes that he was ethically bound to report the misconduct. He also wrote a second memo reporting a conversation he had with the deputy, in which he stated that the deputies' affidavit appeared to be “grossly inaccurate."
The revised memorandums were faxed to the Sheriff’s Department, and a meeting was held, with Ceballos, his supervisors, and representatives from the Department. According to court filings, a lieutenant verbally attacked Ceballos, accused him of acting like a “public defender,” criticized him for not putting the case on, and demanded his removal from the case.
At the end of the meeting, it was decided to proceed with the case pending the outcome of the motion to challenge the warrant. The defense issued a subpoena to Ceballos to testify at the hearing and he informed his supervisor that in his view, both memos contained material that needed to be turned over to the defense before the hearing.
The supervisor initially said they could not disclose the memoranda because they would be sued by the deputy sheriffs for defamation and instructed Ceballos to write a new memo with only the statements of the deputy, and to omit everything else.
Ceballos told her that he did not believe rewriting the memo was appropriate and that the proper course was to turn over the memo with portions redacted. Although initially she was not receptive to idea, he said, she later agreed and Ceballos gave the redacted memo to the defense.
Before the hearing, according to court filings, the supervisor called Ceballos into her office and made a veiled threat of reprisal if he insisted on testifying candidly at the hearing.
The same supervisor represented the prosecution at the hearing, and objected to the defense calling Ceballos as a witness. The court permitted him to testify, but it sustained most of the prosecution's objections to his testimony, which allowed Ceballos to testify only about the statements the deputy had made to him.
According to Ceballos in documents filed, the trial judge later remarked to him that his supervisor's conduct toward him on the stand was “very chastising, rude, and hostile.”
Over the next 6 months, the lawsuit alleges, the DA’s Office took a series of retaliatory actions against Ceballos because of his oral and written statements to his supervisors and his testimony at the hearing.
He says he was demoted from calendar deputy to trial deputy and that one of his murder cases was reassigned to a junior colleague with no murder trial experience, and that he was assigned no new murder cases, undercutting his chances for promotion.
According to court documents, Ceballos was also transferred to a courthouse in El Monte, significantly lengthening his commute to and from work, in a form of punishment that Ceballos describes as “freeway therapy.”
He filed a grievance challenging these actions and while it was pending, he spoke at the Mexican-American Bar Association about the Sheriff Department’s misconduct, the lack of a policy in the DA’s Office for dealing with police misconduct, and the retaliatory measures taken against him.
Two days after he spoke before the Bar Association, the DA’s Office denied his grievance, in part, he alleges, because he spoke to Association. Ceballos then filed an action under 42 USC §1983 challenging the retaliation for the exercise of his First Amendment rights.
On January 30, 2002, the district court granted the government's motion for summary judgment, and concluded that the defendants were entitled to qualified immunity on the §1983 claim because Ceballos' speech was not protected by the First Amendment.
The court acknowledged that Ceballos' "speech clearly involved a matter of public concern."
"For reasons that need not be recited," the court noted, "the code word ‘Rampart’ says it all—there can be no doubt that, in Southern California, police misconduct is a matter of great political and social concern to the community.”
Yet “[d]espite the intrinsic and important public interest in excluding perjured evidence from court proceedings,” the court said, the speech did not touch on a matter of public concern for First Amendment purposes because Ceballos wrote his memo “as part of his job,” and in fulfillment of his duties “not to introduce or rely on evidence known to be false.”
Caballos appealed the district court's decision and the court of appeals reversed the ruling, finding that “the law was clearly established that Ceballos’s speech addressed a matter of public concern and that his interest in the speech outweighed the public employer’s interest in avoiding inefficiency and disruption.”
In the court’s view, critical under the analysis was whether the “point of the speech in question” was “to bring wrongdoing to light” or “to raise other issues of public concern.”
The court held that allegations that a policeman may have lied in an affidavit to obtain a warrant to constitute “whistleblowing” and noted that “when government employees speak about corruption, wrongdoing, misconduct, wastefulness, or inefficiency by other government employees, including law enforcement officers, their speech is inherently a matter of public concern.”
The court rejected the contention that “a public employee’s speech is deprived of First Amendment protection whenever those views are expressed ... pursuant to an employment responsibility.”
The court said the proposed rule would be detrimental to whistleblowers like Ceballos, who report official misconduct because all public employees have a duty to notify their supervisors when they become aware of wrongful conduct. It specifically noted the perverse incentive that would be created by a rule protecting employees only if they bypassed superiors and took their information directly to the media.
The court also said that public employees “are positioned uniquely to contribute to the debate on matters of public concern.” And that “[s]tripping them of that right when they report wrongdoing or other significant matters to their supervisors would seriously undermine our ability to maintain the integrity of our governmental operations.”
The court deemed Ceballos’s speech of significant value because he sought “to bring wrongdoing to light, not merely to further some purely private interest,” and it found no evidence that Ceballos had spoken recklessly or in bad faith.
Most importantly, the court pointed out, "Ceballos tried to address the problem initially by reporting the matter to his supervisors, obviously an appropriate way of seeking a responsible solution.”
The court rejected the argument that the adverse actions were undertaken for non-retaliatory reasons, noting that “a reasonable jury could infer that Ceballos’ speech was a substantially motivating factor.”
The defendants appealed the decision and the Supreme Court reversed the court of appeals and stated: “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.”
Ceballos spoke on a matter of public concern and did so in the course of his employment duties and therefore the court's decision puts government workers in a Catch 22 situation, according to Mr Devine.
“Increasingly the bureaucracy has imposed a mandatory “duty to disclose” on its employees,” he explains. “If they stumble across misconduct, they have no choice but to report it or be guilty for silence.”
“Now government employees obey this duty at their own risk,” he warns. “They’re damned if they remain silent, and defenseless if they bear witness.”
Corruption, abuse of power, and unlawful activity are of distinct public concern and the value of receiving information from public employees regarding such matters cannot be overstated. Critics say the court's decision will further increase the ever-mounting shroud of secrecy evident in government today.
According to Attorney, Mark Labaton, "the Supreme Court's decision rests on a somewhat artificial distinction between speech as a private citizen and speech pursuant to ones official duties."
"The fear is," he explains, "that the decision will encourage employer retaliation against workers who speak out against illegal conduct."
Santa Monica, California Attorney, Mark Klieman, finds the decision "discouraging," and says he expects that we're going to see a lot more like it. "The only saving grace," he notes, "is that some state Supreme Courts may find that this kind of repression of whistleblowers violates state constitutional rights of free speech and of course," he says, "state legislatures are free to prohibit retaliation if they wish anyway."
Others say the court's decision should compel Congress to act. The Court's opinion referred to the Whistleblower Protection Act, but "it already has been gutted by judicial activism to remove statutory protection for duty speech,” according to Mr Devine.
“This is exactly why House and Senate leaders must schedule votes on bills to restore the Whistleblower Protection Act,” he advises.
“Legislation has been unanimously approved by Congressional committees for the last two Congresses,” Mr Devine explains, “but the leadership has refused to schedule up-or-down floor votes due to demands by the Justice Department.”
“It is time,” he says, “for Congress to do its duty and protect duty speech.”
Free speech concerning public affairs is the hallmark of self-government. The decision by the Supreme Court in this case will no doubt create a strong incentive for millions of employees to remain silent, and when government employees remain silent, the public is the ultimate loser.