Commentary—

Whistleblowing Gets More Dangerous

By Dylan Blaylock

The recent Supreme Court decision of Garcetti v. Ceballos did not make huge headlines at the time, but its ramifications for government workers are startling and scary. This decision will be looked back upon each time a state official’s malfeasance or incompetence severely damages a community, be it financially or culturally. Because of the ruling, public employees no longer enjoy First Amendment free speech rights while on the job.

Richard Ceballos did what he was supposed to do. A Los Angeles District Attorney, he discovered evidence that a deputy sheriff might have lied in order to obtain a search warrant. After bringing his findings forward to his superiors, he was ordered to keep quiet. Reporting his conclusions to the defense team, as required by law, Ceballos was removed from the prosecution’s team, demoted, and transferred.

The First Amendment previously shielded government employees against retaliation for reporting fraud and waste. Shockingly, the Supreme Court has ruled that Ceballos does not enjoy these rights since such speech was part of his job. Therefore, his superiors did nothing wrong in dismissing him. In other words, when public employees discover wrongdoing and choose to report it to their superiors, they now can be legally terminated for doing so, if that reporting is a requirement of their job. The ruling doesn’t apply only to county employees — the net widens to include all government workers on the federal, state or municipal level. 

Things looked bleak for federal workers after that decision. Executive branch employees are legally required to report wrongdoing yet those in positions to blow the whistle, even when trying to prevent possible terrorist attacks, would have no legal recourse if fired for acting in good faith. In response, the Senate quickly passed legislation protecting most government workers on the federal level, thereby addressing this terrible conundrum. This legislation now heads to a joint committee between both houses of Congress, and is expected to be put into law later this year. Unfortunately, other public employees still have no protection, except where state or local whistleblower laws and statutes are in effect. But effective local protections are spotty.

The ruling points out that state and other public employees can still go to the media as citizens with their findings — in fact, they enjoy First Amendment rights if this happens, because they are not acting as employees. But rarely is that the best way to address a problem. Not only do workers who come forward publicly risk alienating coworkers and superiors, but honest superiors also lose the chance to fix the problem once they are bypassed by public disclosure.

State and local lawmakers must act now to protect whistleblowers. Waste, abuse, and corruption happen — whether it is the fleecing of Medicare, systematic kickbacks, the bribery of officials or concealing environmental problems. Unless laws are passed that are similar to the Senate bill, someone on the inside who could have made a difference won’t — because they couldn’t afford to lose their job. 

Whistleblowers are in a unique situation to act in the public interest; they are privy to the most sensitive of information, and are often the only individuals who can report on the corruption they witness. To consider not protecting them is flat out wrong. Allowing attacks on a person acting for the public welfare is to allow attacks on the safety and welfare of us all, and on the integrity of state and local government itself.

(Dylan Blaylock is communications director, Government Accountability Project (GAP). GAP is a 28-year old nonprofit public interest group that promotes government and corporate accountability by advancing occupational free speech, defending whistleblowers, and empowering citizen activists. )