You would think all employers, and especially government employers, would want employees to perform their jobs to the best of their abilities. Especially for employees whose job it is to ferret out wrongdoing, you might think that it’s in the government’s interest — and taxpayers’ interest as well — to encourage those employees to do their jobs really well. Not according to a Supreme Court decision issued this week, however. The message to government employees from the Court’s ruling in Garcetti v. Ceballos is that if you’re a public employee whose job it is to uncover wrongdoing, you better not do that too well. Because if your employer isn’t happy with those efforts and decides to retaliate, you might not have much in the way of recourse.
It was the result that everyone feared when it was announced that the case had to be reargued after Justice O’Connor left the Supreme Court. A 4-4 tie between the remaining justices would mean that O’Connor’s replacement, Justice Samuel Alito, was needed to break the tie. (See Do-Over article.) Since Alito was needed, it was assumed that the remaining justices were deadlocked, and given Alito’s history and background, it was feared that he would not be inclined to support the interest of employees. Alito did not disappoint — at least not those who supported his nomination.
Richard Ceballos was a deputy Los Angeles County prosecutor. After a defense attorney complained that a sheriff’s deputy lied on an affidavit in order to obtain a search warrant in a criminal case, Ceballos investigated the allegations. Ceballos’ investigation uncovered that the affidavit made what he considered to be serious misrepresentations, so Ceballos wrote a memo to his supervisors recommending that the case be dismissed. Ceballo’s supervisors disagreed with his recommendation, and continued to prosecute the case anyway.
During a court hearing to challenge the warrant, Ceballos was asked by the defense to testify about the affidavit and his investigation. The defense’s challenge to the warrant was unsuccessful. Afterwards, Ceballos claimed that he was retaliated against because he did his job of investigating the allegations and reporting his findings to his superiors. Ceballos was reassigned from his position, transferred to another courthouse, and denied a promotion, all which he said was a result of the memo. (See Garcetti v. Ceballos decision.)
It was Ceballos’ job to investigate such irregularities when brought to his attention, and he was legally and ethically bound as a prosecutor to disclose the results of his findings, to prevent his office from proceeding with cases that rely on illegally-obtained evidence. But in his case, he would have been better off if he had never written the memo (or written it in a way that covered up what he thought was the sheriff department’s misrepresentation). Just what we need to hear in an era of government secrecy, right?
According to the Supreme Court majority,
That consideration—the fact that Ceballos spoke as a prosecutor fulfilling a responsibility to advise his supervisor about how best to proceed with a pending case—distinguishes Ceballos’ case from those in which the First Amendment provides protection against discipline. We hold that when public employees make statements pursuant to their official duties, the employees are not speaking as citizens for First Amendment purposes, and the Constitution does not insulate their communications from employer discipline.
Ceballos wrote his disposition memo because that is part of what he, as a calendar deputy, was employed to do. It is immaterial whether he experienced some personal gratification from writing the memo; his First Amendment rights do not depend on his job satisfaction. The significant point is that the memo was written pursuant to Ceballos’ official duties. Restricting speech that owes its existence to a public employee’s professional responsibilities does not infringe any liberties the employee might have enjoyed as a private citizen. It simply reflects the exercise of employer control over what the employer itself has commissioned or created.
(See the majority opinion, written by Justice Kennedy.)
So a governmental employer who prefers to commission B.S. can pretty much expect that it’s going to get what it asks for from now on. There’s no longer not much incentive to produce the truth, is there?
If Ceballos had gone to a community meeting about police abuses, and discussed his concerns there about the falsification of warrants, he would have more legal protection for testifying as a “private citizen” than he does when writing a memo to his supervisor about his concerns. And of course, if he had not conducted a thorough investigation and/or suppressed his findings instead of honestly reporting them to his superiors, he’d be in the best shape of all. That’s not the result you really want to see in governmental offices making decisions about how to spend taxpayer dollars and how to enforce the law and protect the public, is it?
Workplace Fairness: Retaliation: Public Employees and First Amendment Rights (note Question 10 has been updated to reflect the decision)