High court to enter employee-speech debate

Tuesday, March 1, 2005

WASHINGTON — Have the courts gone so far in protecting the free-speech rights of public employees that government agencies will be unable to fire workers without fear of being sued for violating the First Amendment?

The Supreme Court, responding to complaints that such a trend is well under way, agreed yesterday to review a California case that could turn the tide back in favor of government employers. The case could affect whistleblowers’ rights in government workplaces nationwide.

In Garcetti v. Ceballos, Los Angeles officials are seeking to overturn a 2004 ruling by the 9th U.S. Circuit Court of Appeals that they say gives First Amendment protection to virtually any speech by government employees that touches on issues of public concern.

Given that the work of public employees almost always involves issues of public concern, the officials complain that the 9th Circuit’s standard, if upheld, would immunize workers from being fired for reasons stemming from even the most routine workplace disagreements.

“The public employer’s capacity to supervise and marshal employee resources in the efficient management of the public’s business is greatly crippled,” a brief by the California State Association of Counties told the Court. “The looming, yet uncertain threat of federal judicial scrutiny may well chill the exercise of what would otherwise be rational, effective management practices.”

The case began in 2000 when Richard Ceballos, a deputy Los Angeles district attorney with supervisory duties, was told by a defense attorney that a deputy sheriff had lied to obtain a search warrant from a judge. Ceballos investigated the charge and determined that the deputy sheriff had substantially misrepresented the facts to obtain the warrant. Ceballos prepared a memo reporting his findings, but his supervisors decided to proceed anyway with the prosecution that resulted from the flawed search. Ceballos then informed the defense lawyer about his investigation, and Ceballos was called to testify during a hearing on a motion to dismiss the case. The judge allowed the case to proceed.

As a result of his testimony, Ceballos claims he was shunned, demoted and reassigned to a remote office — a transfer that Ceballos described as “freeway therapy,” because it gave him a long commute. Ceballos sued in federal court, claiming the punishment by his superiors violated his First Amendment rights. A district court judge dismissed the suit, but the 9th Circuit, in an opinion written by Judge Stephen Reinhardt, reversed.

Reinhardt invoked the two leading high court precedents on government employee speech: Pickering v. Board of Education from 1968 and Connick v. Myers, a 1983 decision. Those rulings require a determination whether the speech at issue is about a matter of public concern, and then under the so-called Pickering balancing test, a determination whether the employee’s interest in expression outweighs the government interest in “promoting workplace efficiency and avoiding workplace disruption.”

Reinhardt said Ceballos’ speech, which amounted to whistle-blowing, met the test and warranted First Amendment protection. “The right of public employees to speak freely on matters of public concern is important to the orderly functioning of the democratic process,” he wrote, “because public employees, by virtue of their access to information and experience regarding the operations, conduct, and policies of government agencies and officials, are positioned uniquely to contribute to the debate on matters of public concern.”

But lawyers for then-District Attorney Gil Garcetti and other officials of the district attorney’s office say Reinhardt incorrectly applied the precedents and omitted a key factor: whether the employee was speaking as a citizen on public issues or as an employee discussing matters of personal interest. First Amendment protection should be given only to the citizen-like speech, not the employment-related speech of a government worker.

In Ceballos’ case, Garcetti’s Glendale Calif. lawyer Cindy Lee wrote, “the memorandum was not prepared while [Ceballos] was playing the role of a citizen, and nor was it in any way related to his participation in public affairs.” Acknowledging that circuit courts are split on the “citizen-speech” requirement, Lee asked the high court to rule in order to vindicate the right of government agencies to manage their workforce. Otherwise, “the vast majority, if not all, of the public employers in this country will be forced to grapple with the short and long-term effects of the continuing erosion of the sound limitations on First Amendment protection in the public employment setting.”

But lawyers for Ceballos say their opponents’ concerns are overstated, and insist that what Ceballos did deserves First Amendment protection. “If Ceballos’s speech addressed a topic of public concern,” wrote his lawyer Bonnie Robin-Vergeer, “then the fact that the speech is job-related does not, under this court’s cases, divest that speech of First Amendment protection.” Robin-Vergeer is a lawyer with the Public Citizen Litigation Group.

Her brief also states that ever since the high court’s Pickering decision, “this court has recognized that the right of a public employee to speak out on matters of public concern is so integral to the employee’s role as a citizen and the community’s interest in self-governance that the government must make a substantial showing of disruption before it may punish such speech.”

The case will be argued in the fall.

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