Public Employees, Whistle-blowers and the First Amendment

By Juliana Morehead, J.D., CFE

Fraud & The Law

Does the First Amendment protect a civil servant who makes job-related statements in accordance with his or her employment responsibilities that happen to reveal internal wrongdoings and are a matter of public concern? In March 2006, on reargument in Garcetti v. Ceballos, the U.S. Supreme Court was asked to determine the breadth of the First Amendment as it relates to speech that would be a routine part of a public employee's employment. 

In the past few years, whistle-blowers have exposed countless frauds. Usually federal statutes (such as the False Claims Act and Civil Service Reform Act) or state statutes will control in such cases. (Every state has some form of legislation protecting whistle-blowers.) However, the issue of whistle-blower protection under the First Amendment has again become ripe for debate. The last time the high court was presented with such an issue was in 1968, when a teacher, Marvin Pickering, was fired after he sent a letter to a newspaper criticizing actions of school officials. In Pickering v. Board of Education, the Supreme Court held that Pickering was protected under the First Amendment because his right to speak about matters of public concern trumped those of the employer's interest in an efficient workplace.1  

In the case at hand, Richard Ceballos was a deputy district attorney in Los Angeles, Calif. During the course of his employment, Ceballos received a complaint from a defense attorney who alleged the misconduct of a local sheriff. Upon investigation, Ceballos found that the sheriff substantially misrepresented facts to obtain a search warrant in a theft case. Ceballos wrote a memo to his supervisors reporting his findings. They told him to make his findings less accusatory so he did so in a subsequent memo. Nonetheless, the prosecutor's office decided to continue with the case. Ceballos informed the defense attorney about his findings and was then subpoenaed to testify at a hearing to dismiss the case. Subsequently, Ceballos was assigned to a remote office for "freeway therapy" (his term for his long commute) and denied a promotion.

Ceballos challenged his employer's retaliation for speaking under his First Amendment rights by filing suit in federal court. He lost in district court, but the court of appeals reversed and remanded the decision and found that "the law was clearly established that Ceballos' 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."2 The matter went to the Supreme Court chambers. The high court was expected to render its decision in late June after this magazine went to press.

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