Pro-whistleblower concurrence strikes blow to Garcetti

Tuesday, April 14, 2009

J. Harvey Wilkinson III’s concurring opinion in Andrew v. Clark is not a clarion call to halt the recent erosion of public employees’ free speech rights. Its subtlety, logic and eloquence, however, might do more for those rights than a demand for action ever could.

In the opinion issued on April 2, Wilkinson agreed with two of his colleagues on the 4th U.S. Circuit Court of Appeals that a Baltimore police whistleblower’s claims should be reinstated. Wilkinson then wrote separately to remind us why First Amendment protection for public employee speech is so important.

Public employee speech has been under attack since 2006, when the U.S. Supreme Court decided Garcetti v. Ceballos. In Garcetti, the Court held that a public employee’s speech made pursuant to his official duties is not entitled to First Amendment protection. Moreover, the Court held that the government as employer can regulate employee speech made outside the employee’s official duties if the government’s interest in efficient operations outweighs the employee’s interest in the speech.

In scores of cases since Garcetti, public employees have found courts unsympathetic to claims that they were fired, demoted or transferred because they commented publicly about perceived misfeasance or malfeasance within their offices. As a result, many public employees have thought twice before exposing government misdeeds or inefficiencies.

Had Michael Andrew been able to predict the future, he too might have thought twice. The incident that sparked his concern, however, occurred in late 2003, more than two years before the court decided Garcetti. Andrew, then a 31-year veteran of the Baltimore police force, believed police had mishandled a situation in which an elderly man barricaded himself in his apartment after killing his landlord. Although the man had no hostages and had not threatened further violence, police stormed the apartment and killed him.

Unhappy with the department’s investigation of the shooting, Andrew wrote a memorandum to the police commissioner expressing his concerns. After receiving no response from the commissioner, Andrew gave a copy of the memorandum to a reporter for The Baltimore Sun.

The Sun’s article about the memorandum started a series of events that resulted in Andrew’s firing. Andrew filed suit in late 2004, claiming, among other things, that the department fired him because he had expressed his views to the reporter and that the firing accordingly violated his First Amendment rights.

After the Supreme Court decided Garcetti, the district court dismissed Andrew’s suit, claiming Andrew had conceded that he prepared the memorandum as part of his official duties. On appeal, the 4th Circuit found Andrew had not conceded this fact and reversed the trial court’s dismissal, saying that “the question (of) whether the Andrew Memorandum was written as part of his official duties was a disputed issue of material fact that cannot be decided on a motion to dismiss.”

Wilkinson, however, was not content to let the court’s opinion be just one more decision applying the well-known standard for a motion to dismiss. Instead, the former editorial page editor for The (Norfolk) Virginian-Pilot urged us to remember the important role that whistleblowers play in our democracy.

“To throw out this citizen who took his concerns to the press on a motion to dismiss would have profound adverse effects on accountability in government,” Wilkinson wrote. “As the state grows more layered and impacts lives more profoundly, it seems inimical to First Amendment principles to treat too summarily those who bring, often at some personal risk, its operations into public view.

“It is vital to the health of our polity that the functioning of the ever more complex and powerful machinery of government not become democracy’s dark lagoon.”

Wilkinson, a Ronald Reagan appointee who has sat on the 4th Circuit since 1984, barely mentioned Garcetti. He struck hard at the decision’s policy underpinnings, however, particularly the notion that government’s interest in efficiency outweighs any benefit derived from public airing of employee grievances.

“The First Amendment should never countenance the gamble that informed scrutiny of the workings of government will be left to wither on the vine,” Wilkinson wrote. “That scrutiny is impossible without some assistance from inside sources such as Michael Andrew.”

Another challenge to that scrutiny, Wilkinson observed, is the changing media climate. Calling this “a particularly parlous time,” Wilkinson noted that the advent of the Internet and the economic downturn have gutted the reporting staffs of many news organizations. As a result, Wilkinson wrote, “municipal and statehouse coverage in particular has too often been reduced to low-hanging fruit.”

“In these most difficult of times,” Wilkinson continued, “not only investigative coverage, but substantive reports on matters of critical public policy are increasingly shortchanged. So, for many reasons and on many fronts, intense scrutiny of the inner workings of massive public bureaucracies charged with major public responsibilities is in deep trouble.”

This trouble is compounded, Wilkinson concluded, if public employees — the first line of defense — are cowed into silence.

“Indeed, it may be more important than ever that such sources carry the story to the reporter,” Wilkinson wrote, “because there are, sad to say, fewer shoeleather journalists to ferret the story out.”

One of the beauties of Wilkinson’s concurrence is that it, without expressly saying so, makes clear that Garcetti rests far more on a policy preference for obedient employees than it does on First Amendment principles. Wilkinson’s concurrence also makes clear that the risk to the government from disobedient employees pales in comparison to the risk to our democracy if public employees are too fearful to speak.

Judges presumably write concurrences for many reasons. In some cases, it’s to clarify a minor point. In others, it seems simply cathartic. In Andrew, however, it appears Wilkinson wrote his concurrence because he thought other federal and state court judges across the country might be listening.

Let’s hope he’s right.