Constitutional Right?
Whistleblower Aid Bill Gains Steam

By GINGER ADAMS OTIS

A new bill that seeks to buttress the rights and protections afforded to Federal employees acting as whistleblowers against government fraud and mismanagement is garnering broad bipartisan support in Congress.

COLLEEN M. KELLEY: Bill aids workers, public.

The legislation, known officially as the Federal Employee Protection Disclosure Act, was introduced earlier this month by U.S. Sens. Daniel Akaka, a Democrat from Hawaii, and Susan Collins, a Republican from Maine. It's already gotten an additional nine co-sponsors who come from both parties.

Spurred by Court Ruling

The bill is a response to a May 30, 2006 ruling from the U.S. Supreme Court that said public employees have no First Amendment rights when they speak out on topics related to their assigned duties.

The high court's 5-4 ruling in Garcetti et al. v. Ceballos was the first decision issued after the retirement of Justice Sandra Day O'Connor. Her replacement, Justice Samuel Alito, sided with the other conservative Justices in reversing the established case law that public employees speaking out as part of their job have constitutionally-protected rights.

The case involved a Deputy District Attorney in Los Angeles, Richard Ceballos, who while on duty wrote a memo to supervisors questioning the validity of a search warrant. He was then demoted and transferred - actions he alleged were retaliatory. His employer denied the charge.

The U.S. Department of Justice filed an amicus brief in the Ceballos case urging the court to rule against the employee. The National Treasury Employees' Union, which represents Federal workers in many agencies, including the Environmental Protection Agency and the Internal Revenue Service, submitted an amicus brief on behalf of Mr. Ceballos.

'Deserve Protection'

"Again and again, public employees, armed with their specialized expertise and data or other insights resulting from their work, have served the public interest by exposing wrongdoing or waste of government funds and by presenting unpopular but objectively sound conclusions and opinions. . . . This speech is entitled to constitutional protection," NTEU lawyers wrote.

The Supreme Court, however, found a distinction between "citizen speech" and "employee speech."

The majority decision stated that "two inquiries guide interpretation of the constitutional protections accorded public employee speech. The first requires determining whether the employee spoke as a citizen on a matter of public concern. If the answer is no, the employee has no First Amendment cause of action based on the employer's reaction to the speech."

The NTEU has said the impact of that ruling "was to effectively strip from Federal employees protection from retaliation if they disclose information obtained through their job."

'A Dangerous Loophole'

It also compounded problems caused by rulings of the U.S. Court of Appeals for the Federal Circuit - which has exclusive jurisdiction to interpret the Federal Whistleblowers Act and which has issued decisions substantially narrowing whistleblower rights and protections - the union said.

The Akaka-Collins bill would "close a very dangerous loophole" opened up by the Ceballos case, contended NTEU President Colleen M. Kelley. The union has maintained that "when the voices of dissenting scientists, doctors, lawyers, financial or law-enforcement professionals serving the public are silenced, the American people will ultimately suffer."

The Akaka-Collins bill contains language clarifying that Federal employees are protected for any disclosure of waste, fraud or abuse, including on those matters learned about in connection with job duties.

It also would provide for an independent determination about the possibility of retaliation against an employee-whistleblower for protected disclosures, and it would suspend for five years the Appeals Court's sole jurisdiction over Federal employee whistleblower cases.