- The Washington Times - Wednesday, May 31, 2006

A divided Supreme Court said yesterday that free-speech rights do not shield government employees — even proclaimed whistleblowers reporting wrongdoing — from punishment for comments made on the job.

“When public employees make statements pursuant to their official duties, the employees are not speaking as citizens” protected by the First Amendment of the Constitution, the court ruled in a 5-4 vote.

Justice Samuel A. Alito Jr., the high court’s newest jurist, cast the tie-breaking vote for the majority that said government employers “need a significant degree of control over their employees’ words and actions; without it, there would be little chance for efficient provision of public services.”

The majority opinion did say First Amendment free-speech rights are protected when a public employee is being retaliated against for conduct involving a “public concern,” rather than personal, job-related issues.

Critics said the ruling could silence nearly all of the nation’s 20 million civil servants, who now can be “disciplined” for exposing official abuse through their government positions.

“This ruling is a green light for corrupt politicians to fire whistleblowers. Almost all whistleblowing occurs as part of an employee’s official duties. This is the worst Supreme Court ruling on whistleblowing in 50 years,” said Stephen Kohn, chairman of the National Whistleblower Center.

The majority opinion was written by Justice Anthony M. Kennedy and endorsed by Chief Justice John G. Roberts Jr. and Justices Antonin Scalia and Clarence Thomas.

Justice David H. Souter wrote a dissenting opinion, embraced by Justices Ruth Bader Ginsburg and John Paul Stevens, that said public workers should be eligible for First Amendment protection. Justice Stephen G. Breyer filed a separate dissenting opinion.

“Public employees are still citizens while they are in office. The notion that there is a categorical difference between speaking as a citizen and speaking in the course of one’s employment is wrong,” Justice Breyer wrote.

Supporters said the ruling will protect governments from lawsuits filed by disgruntled workers pretending to be legitimate whistleblowers.

Employment lawyer Dan Westman said Justice Kennedy’s ruling frees government managers to take necessary personnel actions, such as negative performance reviews or demotions, without fear of frivolous lawsuits.

“I don’t think he has unleashed a wave of terminations,” Mr. Westman said.

The decision in Garcetti v. Ceballos overturned a 2004 opinion of the 9th U.S. Circuit Court of Appeals, which held that Richard Ceballos, a Los Angeles prosecutor, should have received such protections for a memorandum he wrote four years earlier, in which he accused a deputy sheriff of lying on a search warrant affidavit he had prepared in a drug case. Mr. Ceballos also recommended that the case be dismissed.

His supervisors in the district attorney’s office asked Mr. Ceballos to write a memo that was “less inflammatory.” They also refused to drop the prosecution. Mr. Ceballos told the defendant’s attorney of his conclusions, and he subsequently testified at a suppression hearing. But the judge allowed the drug case to proceed.

In a lawsuit filed against his employers, Mr. Ceballos said he was subjected to “retaliatory employment actions” as a result of the stand he took. They included a job reassignment, transfer, and denial of a promotion. The district attorney’s office said it did not retaliate and insisted the changes resulted from staffing needs. Mr. Ceballos is still with the office.

In a friend-of-the-court brief, attorneys for the federal government urged the Supreme Court to throw out Mr. Ceballos’ lawsuit, saying he was not entitled to free-speech protection.

The case was first heard by the court in October. But there was another hearing in March, after the resignation of Justice Sandra Day O’Connor so that her successor, Justice Alito, could vote.

“I would hold that private and public interests in addressing official wrongdoing and threats to health and safety can outweigh the government’s stake in the efficient implementation of policies, and when they do, public employees who speak on these matters in the course of their duties should be eligible to claim First Amendment protection,” Justice Souter wrote in his dissenting opinion.

Gerald W. McEntee, president of the 1.4-million-member American Federation of State County and Municipal Employees, denounced the court’s ruling.

“The Supreme Court has sent a chilling warning to potential whistleblowers. … Your conscience or your job. You can’t have both,” he said.

The ruling sends the case back to the 9th Circuit with directions that the appeals court reconcile the case with the high court’s findings. Before going to court, Mr. Ceballos filed an employment grievance. The grievance was denied based on a finding that he had not been retaliated against.

• This article is based in part on wire service reports.

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