Supreme Court Makes It Easier to Discipline “Whistleblowers”

The US Supreme Court issues a decision that gives employers greater leeway in taking action against a whistleblower when the whistleblower’s actions were part of his official duties as a public employee.

One way that a federal employee can sometimes avoid losing his job or being subjected to a serious disciplinary action is by successfully claiming to be a whistleblower. In other words, if an employee can successfully argue that an agency is taking action as a result of the self-described whistleblower revealing information that created problems for the agency, he may be a hero instead of just being someone who got fired from a federal job.

The problem for the third party decision-makers is being able to tell the difference between the two situations.

The US Supreme Court has now entered the fray with a new decision creating distinctions that will impact federal employees. (Garcetti et. al. v. Ceballos, No. 04-473 (May 30, 2006).

The new decision from the Supreme Court overturned an appeals court decision that concluded a Los Angeles County prosecutor was protected when he wrote a memo questioning whether a sheriff’s deputy lied in a search warrant affidavit. The attorney (Richard Ceballos) had filed a lawsuit claiming he was demoted and denied a promotion for trying to expose a lie by the government for which he worked.

Justice Anthony Kennedy wrote the majority opinion. He wrote that "We reject…the notion that the First Amendment shields from discipline the expressions employees make pursuant to their professional duties." He also wrote "Official communications have official consequences, creating a need for substantive consistency and clarity. Supervisors must ensure that their employees’ official communications are accurate, demonstrate sound judgment, and promote the employer’s mission."

In other words, when a federal employee makes a statement as a result of his official duties, that employee is not speaking as a citizen with the freedom of speech guaranteed by the Constituion. In such a case, the Constitution does not prevent the employer from taking disciplinary action against an employee.

The result is that a federal employee who argues that an agency took disciplinary action in retaliation for whistleblowing activities has a new procedural argument. An agency will probably argue that the speech or action taken by the employee was within the official duties of that employee and does not prevent the agency from taking disciplinary action. The employee will probably argue the "whistleblowing" activity was not part of his official duties.

The decision by the Court will therefore make it easier for an agency to take action against an employee and harder for that employee to win a case based on whistleblowing activity.

About the Author

Ralph Smith has several decades of experience working with federal human resources issues. He has written extensively on a full range of human resources topics in books and newsletters and is a co-founder of two companies and several newsletters on federal human resources. Follow Ralph on Twitter: @RalphSmith47