by Dylan Blaylock, GAP Communications Director, and Coleen Rowley, retired FBI agent and whistleblower
Even as the public focuses on President Bush’s most recent Supreme Court nomination, the business of the court goes on. And this week, it will take up a First Amendment case, Garcetti v. Ceballos, that is crucial not only to government workers across the country, but to all Americans concerned about free speech and national security.
While a deputy district attorney in Los Angeles County, Richard Ceballos investigated allegations of police misconduct in a case his office was prosecuting. After finding evidence suggesting that a deputy sheriff might have lied in order to obtain a search warrant, Mr. Ceballos drafted a memo to supervisors detailing the wrongdoing and recommending that they drop the case. After supervisors proceeded with the prosecution, Mr. Ceballos informed the defense of his findings, as required by law. He was subsequently removed from the prosecution’s team, demoted and transferred to a different office.
Mr. Ceballos filed suit claiming that he was retaliated against in violation of his rights. His boss, District Attorney Gil Garcetti, and the California State Association of Counties argued that free speech protection only extends to public employees when an employee expresses his personal opinions - those being what he advocates as a citizen, rather than an employee. After the United States Court of Appeals for the Ninth Circuit, in San Francisco, ruled in favor of Mr. Ceballos, his opponents pushed for the nation’s highest court to take the case.
Should the First Amendment protect a public employee’s purely job-related speech? The answer will affect the rights of millions of public employees, from police officers to public hospital workers. And in particular, the principle decided here will dictate how whistleblowers are treated in government offices where the reporting of mismanagement and fraud are vital to our country’s well-being, places like intelligence agencies, the Department of Energy and the Federal Emergency Management Agency.
Presidential administrations seem more often than not to make loyalty paramount. While loyalty in marriage, family and among friends is the glue that binds society, government employees owe their ultimate allegiance not to their supervisor or president but to America: its Constitution, laws and citizens.
The Standards of Ethical Conduct for Employees of the Executive Branch, regulations by which all federal workers are required to abide, clearly state that employees "shall disclose waste, fraud, abuse and corruption to appropriate authorities."
But no law effectively protects federal workers who report malfeasance as part of their job duties. And coverage of state workers is patchy. As a result, those workers we depend on for our safety have often faced a terrible conundrum: either remain quiet and allow fraud and wrongdoing to occur, or speak out and risk retaliation. When one of us (Ms. Rowley) spoke out about the F.B.I.’s pre-9/11 lapses, it was likely only the leaking of her memo to the press that saved her from professional retaliation.
For hundreds of other nameless government truth tellers who tried to work solely within the system, however, there has been no such happy ending. Instead, they have been left with the incongruity noted by the appeals court judge who ruled in favor of Mr. Ceballos: that while they might be protected if they took their problem to the press, they would not be protected if they tried to remedy the problem within the system.
With so much at stake in national security, is that a situation we want to let stand? A ruling against First Amendment rights would muzzle those who know security issues better than any oversight body officials can hope to create. We cannot rely solely on Congress to keep tabs on absolutely everything happening under them - such a task is impossible.
Supported by the Bush administration, lawyers for Mr. Garcetti and the California counties association are rehashing arguments that government managers have always used against granting these protections to employees - namely that providing these rights might lead to management paralysis and a deluge of litigation. But the Supreme Court in the past has dismissed these unfounded predictions, realizing that our court system is equipped to weed out frivolous lawsuits. These managers should be praising an early warning system that detects problems and maintains departmental integrity.
Now the court has a chance to clarify previous legal precedents and set the record straight. America should be encouraging those civil servants who step forward to make our country stronger. Cutting off protection is a recipe for disasters of mass proportions.