U.S. Supreme Court Denies Job Protection to Whistleblowers

Decision at Odds with Canadian Employment Law

The U.S. Supreme Court has
denied "whistleblower" protection to a California prosecutor who spoke out to report improper conduct by a County sheriff's deputy.

The Court's controversial, 5-4 ruling in Garcetti v. Ceballos was delivered on May 27, 2006,

Portions of writer James Vicin's Reuters news report on this case are excerpted below:

Court rules no whistle-blower free-speech right

A closely divided U.S. Supreme Court ruled on Tuesday that government whistle-blowers are not protected by free-speech rights when they face employer discipline for
trying to expose possible misconduct at work.

By a 5-4 vote, the high court ruled against a California prosecutor who said he was demoted, denied a promotion and transferred for trying to expose a lie by a county sheriff's deputy in a search-warrant affidavit. ...The high court ruled that a public employee has no First Amendment right in speech expressed as part of performing job-required duties.

Steven Shapiro of the American Civil Liberties Union said, "In an age of excessive government secrecy, the Supreme Court has made it easier to engage in a government cover-up by discouraging internal whistle-blowing."

Los Angeles County Deputy District Attorney Richard Ceballos had sued his employer for retaliating against him for exercising his free-speechrights when he reported suspected wrongdoing in a memo to senior officials in his department.

The justices overturned a ruling by a U.S. appeals court that Ceballos' action was protected by the First Amendment of the Constitution because he was speaking on an issue of public concern.

[Writing for the court majority, Justice Anthony] Kennedy said..., "When public employees made statement 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"

JUDICIAL INTRUSION IN THE WORKPLACE?

Kennedy said a ruling for Ceballos would result in a "new, permanent and intrusive role" for the courts in overseeing communications between government workers and their superiors, replacing managerial discretion with judicial supervision.

The court's liberals, Justices John Paul Stevens, David Souter, Ruth Bader Ginsburg and Stephen Breyer, dissented.Stevens ,,, called the majority ruling "misguided." Souter wrote in a separate dissent that government employees who speak out about official wrongdoing should be eligible for First Amendment protection against reprisals.

At first glance, Justice Kennedy's comment that, in this circumstance, replacing managerial discretion with judicial supervision would constitute unwarranted "juducial intrusion" in the workplace struck me as particularly at odds with well-settled Canadian employment law.

Firstly, there are the numerous Canadian cases regarding the general, overriding duty of an employer to act in good faith toward its employees.

On whistleblowers in particular, however, see the Supreme Court of Canada's 2005 decision in Merk v. International Association of Bridge, Structural, Ornamental and Reinforcing Iron Workers, Local 771.

In the majority opinion in Merk, Mr. Justice Ian Binnie stated:

Whistleblower laws create an exception to the usual duty of loyalty owed by employees to their employer. When applied in government, of course, the purpose is to avoid the waste of public funds or other abuse of state-conferred privileges or authority. In relation to the private sector (as here), the purpose still has a public interest focus because it aims to prevent wrongdoing “that is or is likely to result in an offence”. (It is the “offence” requirement that gives the whistleblower law a public aspect and filters out more general workplace complaints.) The underlying idea is to recruit employees to assist the state in the suppression of unlawful conduct. This is done by providing employees with a measure of immunity against employer retaliation. “[R]eports from insiders allow for early detection and reduction of harm, reduce the necessity for and expense of public oversight and investigation, and may ultimately deter malfeasance”

Section 74 protection should be extended to employees who first blow the whistle to the boss or other persons inside the employer organization who have the “lawful authority” to deal with the problem. If the problem is not resolved internally, then employees can go “outside” to the police or another enforcement agency, but in order to obtain the protection of s. 74, it is not necessary that they do so.

I should add that there may well be circumstances where an employee is fully justified in not seeking an internal remedy but in going directly to the police, as where (for example) it is feared that the employer may destroy evidence. Whether or not an employee is justified in bypassing internal remedies will depend on the circumstances. My point is simply that a suitable “lawful authority” may be found inside as well as outside the employer organization, and if an employee chooses to go the inside route and suffers retaliation, the protection of s. 74 is still available.

There is nothing in s. 74 or surrounding context to suggest that the Saskatchewan legislature in 1994 intended to expose “loyal” employees to employer retaliation without a remedy.

There is some suggestion in the union’s argument that Merk’s allegations were made irresponsibly or in bad faith, leading the employer (the union) to conclude that she was unsuitable for the job. In effect, the union says the cause of dismissal was not retaliation for whistleblowing, but because of its conclusion about Merk’s unsuitability illustrated by her irresponsible allegations. This argument, too, collapses in the face of findings of fact by the trial judge, who stated:

Until the date of her termination, Ms. Merk had justification for being concerned that the payments were improper and it was reasonable for her to believe that some of Royer’s expenditures were a fraud on the union. In my view, that is sufficient to meet the threshold in section 74.

The Canadian Press reports that the federal government is, as well, currently tabling legislation to protect and encourage whistleblowers:

Members of the public who report suspected fraud or other financial wrongdoing in the federal government could be rewarded with a "cut" of any money recovered, Treasury Board President John Baird said Thursday.

Under the Conservatives' new Accountability Act, civil servants can get up to $1,000 for blowing the whistle on fiscal mismanagement in government, which Baird compared to the popular Crime Stoppers reward program used by police.

Daily Kos has links to three additional commentaries (largely critical) by Brettnet, goverup1 and Xpatriated Texan on the SCOTUS ruling.

- Garry J. Wise, Toronto

Visit the WISE LAW OFFICE Website - http://www.wiselaw.net/