The Washington Post has an article today on how Daniel Carter Jr. was fired for "liking" a page on Facebook. This was not a pornographic, racist, or other prohibited website – it was a Facebook page for a candidate who was challenging his boss.
This is just the tip of the iceberg of workplace free speech rights. I represent a client, State Department whsitleblower Peter Van Buren, who was not only prohibited from using any social media – on his own time, on his personal computer – but the State was actively monitoring anything he did: blog, Tweet, update his status of Facebook, etc.
Both Carter and Van Buren's behavior is protected free speech.
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Carter filed a lawsuit claiming that his First Amendment rights had been violated, which is now before the U.S. Court of Appeals for the 4th Circuit. Both Mr. Carter and Mr. Van Buren's "speech" raise substantial constitutional questions and create the appearance of impermissible retaliation for their criticism – Carter's so tacit that you can't even call it "criticism," and Van Buren's more open – of the head of the sheriff's department and the State Department, respectively.
The Supreme Court has made clear (Pickering v. Bd. or Educ., 1960 and its progeny) that public employees are protected by the First Amendment when they engage in speech about matters of public concern. These rights can be overcome only if the employee's interest in the speech is outweighed by the government's interest in the orderly operation of the public workplace and the efficient delivery of public services by public employees.
The Supreme Court has also held that public employees retain their First Amendment rights when speaking about issues directly related to their employment, as long as they are speaking as private citizens (Garcetti v. Ceballos, 2006). It is clear in both these cases that both Mr. Carter and Mr. Van Buren were "speaking" in their own voice and not on behalf of the local Police Department or the federal State Department.
The Government Accountability Project praised the U.S. Department of Justice (DOJ) Office of Inspector General (OIG) for today's announcement of a new Whistleblower Ombudsman position. The job will include monitoring of whistleblowing disclosures and retaliation claims, communications with whistleblowers on the status of their cases, and liaison with other whistleblower protection agencies such as the U.S. Office of Special Counsel. GAP has long advocated for the creation of Ombudsman offices at the DOJ and other OIGs, as evidence of a commitment to establishing effective working relationships with whistleblowers. Institutional Ombudsman offices are required by the pending Whistleblower Protection Enhancement Act (WPEA), as well.
Regarding new DOJ OIG Michael Horowitz, GAP Legal Director Tom Devine commented:
"In announcing this new position, Mr. Horowitz is off to a flying start toward earning trust from whistleblowers and their advocates. At GAP, we know that any Ombudsman faces tough tasks but whoever assumes this new position at DOJ will certainly confront challenges. There is a history of mutual distrust between whistleblowers and the DOJ OIG, and OIG staff who have worked closely with whistleblowers in the past faced suspicion and harassment. The relationship between whistleblowers and government investigators inherently is difficult and strained, at best. But a working relationship is indispensable for effective law enforcement, and OIGs can play a major role in preventing retaliation or nipping it in the bud. The Ombudsman post is an institutional commitment to start reaching that potential."
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NPR: Fast and Furious Whistle-blower Reaches Agreement Over Retaliation Claims
Peter Forcelli, a GAP client and one of the whistleblowers involved in the 'Fast & Furious' scandal at the Bureau of Alcohol, Tobacco, Firearms & Explosives (ATF), has settled his retaliation case with the agency through the Office of Special Counsel's mediation program.
Key Quote: A lawyer for Forcelli declined to disclose the terms of the settlement because it was the product of a confidential mediation process. "We can't reveal the details but Mr. Forcelli's smile could not be broader," lawyer Tom Devine, of the Government Accountability Project, told NPR in an interview. "This outcome was a 180 degree reversal by new management... This dispute is over."
Related Articles: Main Justice
Walmart to Sell Monsanto's Unlabeled GE Sweet Corn
Walmart, the world's largest retailer, will soon be selling Monsanto's new genetically engineered (GE) sweet corn – just months before a California vote determines whether GE foods require labeling in that state. GAP's Food Integrity Campaign explains.
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GAP’s Radack & NSA Whistleblower Drake Appear on The Daily Show
Summary: Last night, GAP National Security & Human Rights Director and NSA whistleblower/GAP client Thomas Drake appeared on The Daily Show, talking about Drake’s case – how he was charged under the Espionage Act for reporting waste, fraud, and abuse at the agency. The segment highlighted the absurdity of Drake being charged as a spy.
Peace & Collaborative Development Network: PCDN Interview with the Government Accountability Project
Summary: In this long-form interview, the Peace & Collaborative Development Network interviews GAP Executive & International Director Bea Edwards and GAP International Officer Shelley Walden about GAP and its work to protect whistleblowers at international organizations.
Business Insider: Lone Senator Is Fighting Widespread and Illegal Government Surveillance of US Citizens
Summary: This article highlights the efforts of Senator Ron Wydon (D-Ore.) to combat government surveillance on its own citizens. One example of what the article calls a battle over civil liberties is the unprecedented use of the Espionage Act to charge intelligence whistleblowers – most notably, NSA whistleblower and GAP client Thomas Drake.
Key Quote: Drake was fortunate; he had the representation of skilled counsel (Jesselyn Radack of the nonprofit Government Accountability Project—herself a former whistleblower), and his case went to a judge whose rulings paved the way for a fair trial. Authorities then in effect gave up, and settled the once-mammoth prosecution by extracting from Drake a plea bargain to a minor charge.
We here at GAP are big fans of both whistleblower rights and funny things, though, for better or worse, they don't often cross paths. Until now! We were unimaginably delighted when The Daily Show with Jon Stewart aired a segment on whistleblowers last night. GAP National Security & Human Rights Director Jesselyn Radack and NSA whistleblower/GAP client Thomas Drake appeared on The Daily Show to talk to correspondent Jason Jones about how Drake was prosecuted as a spy (under the Espionage Act) for revealing massive waste, fraud and abuse at the agency. Watch the segment below!
Radack, herself a Department of Justice whistleblower before becoming a whistleblower advocate, and Drake talked about his case, highlighting the absurdity of Drake being charged as a spy.
For more on Drake's case and how it eventually backfired on the government, click here. Radack's whistleblowing was the subject of her recent book, Traitor: The Whistleblower and the 'American Taliban', which you can learn more about here.
Hannah Johnson is Communications Associate for the Government Accountability Project, the nation's leading whistleblower protection and advocacy organization.
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Atlanta Journal-Constitution: Playing Chicken on Food Safety?
Summary: More coverage on the concerns regarding USDA's plan to speed up poultry production lines and replace most government inspectors with plant workers – changes already in place under a controversial pilot program known as HIMP. Critics (including USDA inspector whistleblowers who reported concerns to GAP) say the agency allowed the pilot plants to rearrange production lines in a way that prevented inspectors from writing citations for fecal contamination.
Key Quote: "So all those [citations] that were getting written up early on under the [pilot] program because inspectors were finding a lot of fecal, all of a sudden, they all go away," [Felicia] Nestor said. She is the food-safety consultant to the Government Accountability Project, a Washington group that supports government and corporate whistleblowers.
Globe and Mail (Canada): Quebec Whistleblower Could Change Election Trajectory
Summary: A former Montreal, Quebec police chief and corruption whistleblower is running for office in the province. The whistleblower-turned-candidate was hired in 2010 by the provincial government to investigate corruption in the construction industry and gave the report to the media last fall, feeling that it was being ignored by politicians. The election will be held September 4.
Related Articles: The Canadian Press, Toronto Star
Huffington Post: Former Morgan Stanley Risk Officer Cliffor Jagodzinski Sues over Firing in Whistleblower Case
Summary: A former Morgan Stanley risk officer has filed suit against the company, alleging he was fired after telling his supervisors that illegal trades needed to be reported to the securities regulator, the Financial Industry Regulatory Authority. According to the whistleblower, his supervisors told him repeatedly not to report or investigate the illegal trades.
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It has come to GAP's attention that lawyers from the United Nations have questioned statistics that we compiled regarding the record of the UN Ethics Office, which is charged with reviewing retaliation complaints and safeguarding the interests of UN whistleblowers. Specifically, in the Respondent’s Reply in UN Dispute Tribunal case GVA/2011/090, the UN claimed that GAP’s statistic was “entirely incorrect and unfounded.”
GAP takes such accusations seriously. As soon as we became aware of the UN’s critique, we double-checked our numbers and issued an official response, which first appeared on the UNJustice website and can be read below. We hope that these clarifications will help whistleblowers who currently have cases pending before the UN internal justice system.
Dear UN Justice,
Thank you for contacting the Government Accountability Project (GAP) and for giving us a chance to reply to the statement made by the UN’s lawyers regarding the record of the UN Ethics Office (in paragraphs 20-23 of the Respondent’s Reply in Walter Gehr v. Secretary-General of the United Nations). We appreciate the opportunity to double check our numbers and clarify the discrepancies.
Let me explain how GAP arrived at these statistics and where the discrepancies between our numbers and the UN lawyers’ lie. In our initial blog on this issue (which has since been revised) we stated that “According to Ethics Office reports to the Secretary-General, from August 1, 2007 to July 31, 2010, a prima facie case of retaliation was found in 1.5% of the requests for protection from retaliation received by the Office (2 of 134 cases).” This was before we located the 2006, 2007 or 2011 Ethics Office reports, so it only uses statistics from the 2008, 2009 and 2010 reports. Our analysis was limited to those reports because they were the only ones that we were able to locate at that time (we’ve since located all of them and have started quoting a new statistic incorporating every annual report).