Public Service,Public Corruption and the First Amendment

Building the Public Service Model and the Evolution of the Freedom of Speech Rights of Public Employees

For decades before the U.S. Supreme Court decision in Pickering v. Education (1968), federal and state courts routinely found that as a condition of employment, governments could restrict public employees from exercising fundamental constitutional rights (Rosenbloom, 2014b). This included the First Amendment right to freedom of speech and association (Rosenbloom, 2014b). In McAuliffe v. New Bedford (1892), for instance, Justice Oliver Wendell Holmes, writing for the highest Massachusetts state court, stressed that “the petitioner may have a constitutional right to talk politics, but he has no constitutional right to be a policeman” (p. 216). Under the privilege doctrine, public employers had the authority to “impose upon the public employee any requirement it [saw] fit as conditional to employment” (Dotson, 1955, p. 77). This included regulating both the on-the-job and off-the-job conduct of their employees. During the 1940s and 1950s, the privilege doctrine permitted local, state, and federal government agencies to fire thousands of public employees on the grounds that their alleged relationships with subversive organizations made them security risks (Rosenbloom, 2014b). The vast majority of these public employees never learned the content and source of the information that led to their termination.

During the 1960s, the U.S. Supreme Court replaced the privilege doctrine with a new public service model. The public service model required federal courts to balance “the employee’s interest in effective administration and policy implementation” with the strong public interest in having public employees expose “serious waste, fraud, abuse, or other maladministration” (Rosenbloom, 2014b, p. 127). Despite the fact that the public service model limited the constitutional rights of public employees, public employees fared much better under the public service model than they had under the public employment privilege doctrine (“Developments in the Law,” 1984).

However, many public employers deeply resented the courts monitoring their personnel policies and practices. Many public employers argued that increased judicial monitoring led to decreased efficiency. This argument hit a responsive court with U.S. Supreme Court Justices who viewed private sector employment practices as much more efficient than those used in the public sector (Rosenbloom, 2014b). Much like the private sector, public employers need considerable flexibility to punish their employees for various types of conduct including speech to maintain organizational efficiency (Shinar, 2013). This fact helps to explain why, since the 1960s, “the Supreme Court has vacillated between entering the public employment relationship by strengthening constitutional rights of public employees . . . or [by] withdrawing from such involvement in public personnel matters” (Rosenbloom, 2014b, p. 33). And this includes vacillating with respect to the First Amendment freedom of speech rights of public employees (Shinar, 2013).

From Pickering v. Education (1968) to Garcetti v. Ceballos (2006), the U.S. Supreme Court relied on an ad hoc case by case approach to apply the Pickering two-part balancing test. This included struggling to decide whether to broadly or narrowly construe what constituted a matter of public concern. In Connick v. Myers (1983), the U.S. Supreme Court limited matters of public concern to speech involving political, social, and other issues of general interest to the community as a whole. It did not include the vast majority of employee grievances with management (Connick v. Myers, 1983). Yet, even after Connick, U.S. Courts of Appeals consistently held that public corruption and official misconduct allegations made by public employees constituted matters of public concern (Dahlia v. Rodriquez, 2013; Kristofek v. Village of Orland Hills, 2013; Roth v. Veteran’s Admin of United States, 1988; Warnock v. Pecos County, 1997).

Advocates of the privatization of the First Amendment freedom of speech rights of public employees could not have asked more from Garcetti v. Ceballos (2006). However, the Garcetti decision had the potential of significantly increasing government inefficiency if it made public employees more reluctant to report instances of public corruption. Recognizing this potential downside of the decision, Justice Kennedy argued that Garcetti would not have a chilling impact on the willingness of public employees to report corruption because public employees had at their disposal a “powerful network of legislative enactments—such as whistle-blower protection laws and labor codes” to provide them protection against retaliation for exposing wrongdoing (p. 703). Not surprisingly, Justice Souter sharply disagreed with this assessment. In his dissent, Souter stressed the job responsibilities of public employees frequently brought themselves “face to face with wrongdoing and incompetence in government” (Garcetti v. Ceballos, 2006, p. 709). Souter stressed the importance that government employees not “avert their eyes and shut their mouths” when faced with corruption in government (Garcetti v. Ceballos, 2006, p. 709). Instead of viewing whistleblowing that disrupted normal government operations as a problem, Souter argued that it may be necessary for public employees to disrupt government “if its officials are corrupt or dangerously incompetent” (p. 709). Finally, Souter argued that “preventing the occasionally irresponsible [employee] from turning his job into a bully pulpit” did not justify depriving government and the public of “potentially valuable information” related to corruption and official misconduct (Garcetti v. Ceballos, 2006, p. 709).

Whistleblower Laws as an Alternative to the First Amendment

When one examines the failure of state and federal whistleblower laws to protect organizational dissenters from retaliation, one wonders why Justice Kennedy viewed them so positively in Garcetti. At the time of the Garcetti decision, studies of state and federal whistleblower laws had concluded that they had failed to provide government whistleblowers adequate protection from retaliation (McCarthy, 2012; Sinzdak, 2008).

Many scholars trace the beginning of legislative efforts to protect whistleblowers to the passage of the Civil Service Reform Act (CSRA) of 1978. Enacted in the wake of the Watergate scandal, the law, in theory, protected federal employees from retaliation for disclosing information of “a violation of law, rule or regulation, gross mismanagement, a gross waste of funds, an abuse of authority, or a specific and substantial danger to public health and safety” (Peffer et al., 2013, p. 3). The CSRA gave the newly established Office of Special Counsel (OSC) responsibility for investigating allegations of retaliation against whistleblowers. The CSRA gave the newly created Merit Systems Protection Board (MSPB) the responsibility to adjudicate appeals by disciplined federal employees including whistleblowers (Peffer et al., 2013).

The passage of the whistleblower provisions of the CSRA did little to reduce retaliation against federal employee whistleblowers. Between 1979 and 1989, the OSC failed to bring a single corrective action against a federal agency for retaliating against a whistleblower (McCarthy, 2012). As a result, Congress passed the Whistleblower Protection Act of 1989 to make it easier for federal employees to bring whistleblower cases and to make clear that the law did not protect federal employees who disclosed classified or information prohibited from disclosure by law (Peffer et al., 2013). In 1999, to the horror of whistleblower advocates, the U.S. Court of Appeals for the Federal District held that the 1989 law only protected whistleblowers who presented “undeniable, uncontestable, or incontrovertible proof” of unlawful conduct. Not surprisingly, the vast majority of whistleblowers could not meet this high standard of proof (Peffer et al., 2013). Again, federal employee whistleblowers largely found themselves out in the cold.

Interestingly, the 1980s, 1990s, and 2000s saw Congress enact a large number of narrow whistleblower anti-retaliation laws tied to specific federal programs. By the beginning of 2013, the number of these whistleblower provisions had grown to 39 (Shimabukuro, Whitaker, & Roberts, 2013). Congress enacted these whistleblower provisions to protect both private and public sector employees from retaliation for reporting possible violations of specific federal laws. These included the Dodd–Frank Wall Street Reform and Consumer Protection Act (Dodd–Frank Act), Occupational Safety and Health Act of 1970 (OSH Act), Sarbines–Oxley Act of 2002 (SOX), and the Toxic Substances Control Act (TSCA; Shimabukuro et al., 2013). In 2012, Congress passed the Whistleblower Protection Act, which lowered “the burden of proofs for federal employee whistleblowers and expanded the scope of protected disclosures” (Peffer et al., 2013, p. 9).

Following the lead of the federal government, from the late 1970s through 2014, a number of states passed whistleblower laws (National Conference of State Legislatures, 2010). A 2013 study of these statutes revealed major differences in these laws. According to the study, the Dictrict of Columbia and the states of California, Tennessee, New Mexico, Maryland, Nevanda, Wisconsin, New Hampshire and Virmont had the strongest state whistleblower laws (Protecting Employees Who Protect Our Environment, 2012). And the states of South Dakota, Georgia, Indiana, Alaska, Ohio, Wyoming, Louisiana, Texas, Michigan and New York had the weakest state whistleblower laws (Protecting Employees Who Protect Our Environment, 2013).

Despite the general consensus among whistleblower scholars that state and federal whistleblower statutes are ineffective, one anti-corruption statute, the Federal False Claims Act (FCA) has proven highly successful in uncovering public corruption and protecting whistleblowers. Congress originally enacted the law, in 1863, to stop a flood of fraudulent claims filed against the U.S. Government during the Civil War. In 1986, in response to allegations of fraud by major defense contractors, Congress moved to put teeth into the FCA. Of particular importance, Congress added a whistleblower protection provision to protect individuals from retaliation for bringing so-called qui tam action in federal court (Schenk & Lane, 2011). In addition, the amendments authorized courts to award private whistleblowers 10% to 30% of funds recovered from individuals or companies found to have defrauded the federal government or programs funded by the federal government (Schenk & Lane, 2011). However, individuals could only bring a qui tam action based on evidence of fraudulent claims that they discovered. Finally, the amendments permitted the United States Department of Justice (USDOJ) to join with these individuals in civil FCA suits. Not surprisingly, the 1986 FCA amendments led to an explosion in private qui tam actions. In 2013, for instance, individuals filed 752 qui tam “whistleblower” FCA actions. This constituted 89% of the total of FCA claims filed (Gibson Dunn, 2014). During 2013, the federal government collected US$3.8 billion dollars in settlements and judgments. Of this total, whistleblowers (called “relators”) collected “$387 million in share awards” (Dunn, 2014).

After the 1986 amendments, federal courts and the USDOJ interpreted the FCA as prohibiting federal employees and former federal employees from bringing qui tam whistleblower lawsuits. Federal courts reasoned that it constituted a conflict of interest for federal employees or former federal employees to bring qui tam actions based on information obtained in the course of performing their official duties. In Little v. Shell Exploration & Production Company (2012), however, the U.S. Court of Appeals for the Fifth Circuit rejected this narrow interpretation of the FCA. It held that the FCA did not prohibit federal employees and former federal employees from bringing qui tam actions as long as plaintiff federal employee could meet the statutory requirement that they had “direct and independent knowledge” of the alleged fraudulent conduct by the defendants (Little v. Shell Exploration & Production Company, 2012, p. 294).

Federal courts also interpreted the FCA as only allowing actions against private individuals and corporations and not against state and local government agencies and officials. Gradually, federal courts rejected this narrow interpretation. In Cook County v. United States Ex. Rel. Chandler (2003), the U.S. Supreme Court held individuals could bring qui tam actions against local governments. On August 20, 2014, for instance, the Washington Metro Transit Authority (Metro) settled with the federal government with respect to a qui tam suit brought by a former Metro employee and whistleblower. In his suit, Shahia Khwaja alleged that the transit agency entered into a no-bid technology contract. Federal law had required Metro to make use of competitive bidding because Metro had used federal funds for the contract. In the settlement, Metro agreed to pay the federal government US$4.2 million. Shahia Khwaja received US$1 million as his share of the settlement. He also received more than US$390,000 for wrongful termination (Associated Press, 2014; United States Attorney’s Office for the District of Columbia, 2014).

Despite Justice Kennedy’s argument in Garcetti, federal and state whistleblower laws have failed to live up to the expectations of their supporters. As a result, the gutting of the First Amendment rights of public employee by Garcetti had a profound impact on internal organizational dissent by public employees.

Public Corruption Whistleblowers Beware: Organizational Dissent After Garcetti

During the second half of the 19th century, political machines, often located in major cities, grew much bolder in making use of graft to fund political organizations and to line the pockets of party leaders and their friends and associates (Gilman, 1995). An epidemic in public corruption led to much higher municipal taxes and eroded public trust in government (Anechiarico & Jacobs, 1994). Political parties routinely “allocated government employment as remuneration for their workers” (Rosenbloom, 2014b, p. 49). And political machines routinely required civil servants to return a certain percentage of their salary to the political machine through the use of a political assessment (Rosenbloom, 2014b).

Much of the support for the post-Civil War civil service reform movement came from “lawyers, editors, clergymen, academicians, and mercantile and financial . . . businessmen” (Rosenbloom, 2014b, p. 59), who blamed the spoils system for massive public corruption. Any effort to control political corruption required breaking the power of entrenched political machines. The movement culminated with the passage of the CSRA of 1883 (Pendleton Act). Building on the success of the civil service reform movement, the Progressive Movement (1900-1920) sought to separate politics from administration as a way to further reduce the power of political machines and to control corruption. Progressives, for instance, strongly supported the establishment of independent regulatory commissions and the city manager form of local government. With the formal recognition of the discipline of public administration, the solution for public corruption gradually shifted from political reform to management reform. Effective management had the capacity to end public corruption. The most widely adopted public corruption management reforms included line item budget, competitive bidding, and program audits (Anechiarico & Jacobs, 1994).

Despite the fact that traditional types of public graft continued to plague a number of large cities and a handful of states (Wilson, 1966), the 1960s saw many public management scholars declare victory against public corruption. The victory paved the way for a major expansion in the role of government in American society. During the 1960s, for example, Congress established the Medicare, Medicaid, and Food Stamps. All three programs depended primarily on private sector third party providers to deliver services to those eligible for benefits under these programs. The same period saw the Department of Defense depend more and more on private contractors to provide the military with increasing complex weapons systems along with other goods and services. Without a speedy way to reimburse private sector vendors and contractors for their services, these programs could not operate. Rigorous audit programs gave way to de facto honor systems that relied heavily on self-regulation by third party vendors of goods and services. By the end of the 1970s, waste, fraud, and abuse in government programs had emerged as one of the most serious management problem facing public administration (Lansing & Burkard, 1991; Young, 1983).

Interestingly, from the late 19th century through the late 1970s, efforts to prevent public corruption did not give government whistleblowers a major role in uncovering waste, fraud, and abuse in public programs. To the contrary, the late 1970s saw efforts to control waste, fraud, and abuse on the establishment of new offices of inspector general units within organizations as well as significantly increasing criminal prosecutions of individuals on public corruption charges (Huddleston & Sands, 1995). Strategies to deal with the explosion in public corruption by non-governmental recipients of government reimbursements or contracts rarely included discussions of making greater use of government employee whistleblowers.

Even prior to Garcetti, federal employees faced an uphill battle when suing their employers for allegedly retaliating against them for exercising their First Amendment freedom of speech rights. In Connick v. Myers (1983), the U.S. Supreme Court “held that whether a public employee’s speech is constitutionally protected is a question of law for the judge to determine” (Patrick, 2010, p. 376). This meant that federal judges ruled on whether the public employee had spoken out on a matter of public concern and whether the employee’s speech unduly disrupted the efficient operation of the employee’s agency (Dixon v. Univ. of Toledo, 2012; Fields v. City of Tulsa, 2014). Due to the broad discretion exercised by federal judges over whether the public employee spoke out on a matter of public concern, public employees often found their First Amendment freedom of speech retaliation cases abruptly dismissed.

The “qualified immunity” defense also created an additional barrier to public employees obtaining money judgment awards for violations of their First Amendment freedom of speech rights (Leslie v. Hancock County Bd. of Educ, 2013, p. 1338). Harlow v. Fitzgerald (1982) established a new “objective reasonableness test” for determining the eligibility of public employees for qualified immunity (Rosenbloom, 2014b, p. 177). To hold the public employee liable for a constitutional tort required a finding that the public employee had violated a clearly established statutory or constitutional right (Lee, 2004; Rosenbloom, 2014b). And in Hope v. Pelzer (2002), the U.S. Supreme Court held that judicial precedent must provide public employees fair warning “that his or her conduct would violate constitutional rights” (Rosenbloom, 2014b, p. 178).

Not surprisingly, Garcetti made it much worse for public employee whistleblowers. Garcetti did not limit the application of its new “official duties” threshold test to internal communications. It applied equally to internal and external communications made in the course of public employees performing their official duties. Instead of having to deal with a two-part balancing test, public employees found themselves forced to overcome the “official duties” threshold before attempting to persuade a judge that the subject matter of the communication constituted a matter of public concern and did not unduly interfere with the efficiency of the employee’s agency. In a large number of cases, the new “official duties” test became an immediate roadblock for First Amendment retaliation plaintiffs (Wiese, 2010, pp. 509-529).

In the aftermath of Garcetti, U.S. Courts of Appeals adopted two general approaches for implementing the “official duties” mandate (Keenan, 2011, pp. 847-860; Wiese, 2010, pp. 515-16). Some Circuit Courts adopted a chain of command approach that focused on the audience for the employee’s communication. Under this test, if the employee made communications up the employee’s chain of command (superiors), then the speech clearly fell within the scope of the employee’s official duties (Wiese, 2010). For instance, in Hagen v. City of Eugene, 2013), the head of the Eugene Police Department’s K-9 team repeatedly complained to his superiors about the poor training received by the Eugene Police Department’s Special Weapons And Tactics (SWAT) team.

Hagen alleged that the poor training presented a direct threat to officers and to the public at large (Hagen v. City of Eugene, 2013). After police department officials removed Hagen as head of the K-9 unit, Hagen brought suit alleging that police department officials had retaliated against him for internally complaining about matters of public concern. Reversing a decision by the U.S. District Court for Oregon holding that Hagen had spoken as a citizen and not as an official of the police department, the Ninth Circuit found that “Hagen’s concerns about SWAT safety were inextricably intertwined with his duties as a K-9 officer” (Hagen v. City of Eugene, 2013, p. 1259). Furthermore, argued the Ninth Circuit, “Hagen raised his concerns about his and his fellow officers’ job safety internally and within the chain of command. .”(Hagen v. City of Eugene, 2013, p. 1259). Furthermore, argued the Ninth Circuit, Hagen made his comments “as a public employee, and not as a private citizen” (Hagen v. City of Eugene, 2013, p. 1259).

In contrast, after Garcetti, other U.S Circuit Courts made use of the assigned responsibility approach when implementing Garcetti’s “official duties” test. To determine the assigned responsibilities of an employee required the federal courts to examine the employee’s official position description and other duties routinely performed even if they fell outside the employee’s position description. If the subject matter of the employee’s internal or external communications involved routine responsibilities performed by the employee, then the employee spoke as a public employee and not as a private citizen (Wiese, 2010).

For instance, in Housey v. MaComb County (2013), a Chief Judge terminated Donald Housey from his position as the Macomb County Probate Court Register. In his federal freedom of speech lawsuit, Housey alleged that Chief Judge Mark Switalski terminated him for sending a series of critical reports on the operation of the probate court to the State Court Administrative Office (Housey v. Macomb County, 2013). Although the Michigan Supreme Court had established the office to oversee the administration of the state’s probate courts, state law did not mandate Housey to file such reports with the state office (Housey v. Macomb County, 2013). Housey served at the pleasure of Chief Judge Switalski. After reviewing Housey’s actions, the federal district court granted summary judgment motions brought by Macomb County and Judge Switalski. The district court reasoned that although state law did not require Housey to file reports with the state office, the subject matter of the reports fell within Housey’s duties and responsibilities. The Sixth Circuit subsequently upheld the decision of the federal district court granting Macomb County and Judge Switalski summary judgment.

In upholding the findings of the federal district court, the Sixth Circuit found that Housey’s duties in the position description for his position included “ensuring compliance with established MCPC policies and performing case-management functions . . . (Housey v. Macomb County, 2013, p. 322). Furthermore, argued the Sixth Circuit, “Housey’s choice of forum suggests that he believed his duty to bring the misconduct to light arose from his position as a probate court register rather than a concerned citizen” (Housey v. Macomb County, 2013, p. 322). Interestingly, the Sixth Circuit took note of the fact that if Housey had “written a letter to his local newspaper or tipped off an independent agency.” it might have found that he had spoken as a citizen rather than as a public employee (Housey v. Macomb County, 2013, p. 323).

The case of Kimmett v. Corbet (2014) provided an even clearer demonstration of the impact of Garcetti on public corruption whistleblowers. Prior to bringing suit, Kimmett served as supervisor for the Administrative Collections unit of Pennsylvania’s Attorney General Office (AGO). In the course of carrying out his duties, Kimmett alleged he had uncovered “evidence of mismanagement, improprieties, and malfeasance” in the Financial Enforcement Section (FES), located within Office of Attorney General (OAG) and the Pennsylvania Department of Revenue (DOR; Kimmett v. Corbet, 2014, p. 108). Kimmett reported his allegations to his superiors in the OAG and to a number of individuals outside the OAG including “an Assistant United States Attorney, an FBI agent, a former colleague who worked at the Pennsylvania Commission on Crime and Delinquency, and the Executive Director of the Team Pennsylvania Foundation” (Kimmett v. Corbet, 2014, p. 108). Kimmett alleged that his allegations led directly to his demotion and subsequent termination (Kimmett v. Corbet, 2014).

Although the District Court found that some of Kimmett’s allegations “were made as a citizen and addressed matters of public concern” (Kimmett v. Corbet, 2014, p. 110), it found that Kimmett’s allegations had disrupted harmony within the OAG. This fact outweighed Kimmett’s right to speak out on matters of public concern (Kimmett v. Corbet, 2014). On appeal, the Third Circuit found that the District Court had erred by not properly applying Garcetti’s official duties test before proceeding to Pickering’s two part balancing test. As a result, the Third Circuit found “that Kimmett’s speech within the OAG was made pursuant to his job duties as the ASU Supervisor” (Kimmett v. Corbet, 2014, p. 111). Kimmett had acted as an employee and not as a citizen. Moreover, the Third Circuit concurred with the District Court finding that Kimmett’s complaints about possible wrongdoing by his superiors in the OAG had “damaged his working relationships in the OAG and DOR” (Kimmett v. Corbet, 2014, p. 114).

In the aftermath of Garcetti, only a handful of U.S. Courts of Appeals found justification for not applying Garcetti’s “official duties” test to a First Amendment freedom of speech retaliation claim (Kleinbrodt, 2013, p. 115). In Jackler v. Byrne (2011), a police officer alleged superiors in the police department and members of the Board of Police Commissioners retaliated against him for refusing to withdraw a one-page report corroborating a citizen’s excessive force complaint against a fellow police officer. “Jackler’s refusal to alter his report was done in his capacity as a police officer, and that refusal only occurred because he was an officer,” argued the District Court (Jackler v. Byrne, 2010, p. 319). This meant that Garcetti prevented Jackler from pursuing a First Amendment freedom of speech retaliation claim.

On appeal, the Second Circuit reversed the District Court’s dismissal of Jackler’s First Amendment claim. To reach this result, the Second Circuit recognized a so-called “civilian analogue” exception to Garcetti. The Second Circuit compared Jackler’s actions with that of citizen reporting police misconduct (Kleinbrodt, 2013). If a citizen filed a report of possible police misconduct and then recanted their original statement or report, the citizen might face criminal prosecution for submitting a false police report (Jackler v. Byrne, 2011).

The Second Circuit found that “Jackler had strong First Amendment interest in refusing to make a report that was dishonest” (Jackler v. Byrne, 2011, p. 240). Moreover, argued the Second Circuit, “[t]he use of excessive force by a police officer is a matter of serious public concern . . .” (Jackler v. Byrne, 2011, p. 240). Finally, argued the Second Circuit, the discretion of a public employer to manage its operations did not “include the authority to coerce or intimidate its employees to engage in criminal conduct by filing reports that are false in order to conceal wrongdoing by another employee or conceal eyewitness corroboration of civilian complaints of such wrongdoing” (Jackler v. Byrne, 2011, p. 242). The U.S. Supreme Court subsequently declined to review the Second Circuits decision in Jackler (Byrne v. Jackler, 2012).

Lane v. Franks: Limiting Collateral Damage

During the years of litigation following Lane’s January 2009 termination, no one ever alleged that Lane had done anything improper as an employee of the Central Alabama Community College (CACC) or by providing information to the FBI and federal prosecutors regarding Schmitz’s employment record. According to Franks, who had become CACC’s President in January of 2009, Lane’s termination had nothing to do with his cooperation with federal authorities but he asserted Lane had lost his job due to budget cuts (Lane v. Franks, 2014).

In January 2008, a year before Lane’s firing, a federal grand jury indicted Schmitz on four counts of mail fraud in violation of 18 U.S.C. § 1341 and four counts of theft concerning a program receiving federal funds, in violation of 18 U.S.C. § 666(a)(1)(A) (U.S. v. Schmitz, 2011). The indictment alleged that Schmitz had collected US$177,251.82 in federal funds although she had performed little or no work for her salary (Lane v. Franks, 2014a). The jury failed to reach a verdict. Six months later, a second federal jury convicted Schmitz on three of four mail fraud counts and all counts regarding theft concerning a program received federal funds counts (U.S. v. Schmitz, 2011). Schmitz received a 30-month prison sentence and “ordered restitution and forfeiture in the amount of $177,251.82,” the amount she had received in salary (U.S. v. Schmitz, 2011, p. 1258).

The Eleventh Circuit threw out Schmitz’s 18 U.S.C. 666 convictions (U.S. v. Schmitz, 2011). However, it upheld her mail fraud convictions. During April of 2012, Schmitz completed her 30-month prison sentence and completed repaying US$177,251.82 (Doyle, 2012).

In January 2011, Lane brought suit, under 42 U.S.C. 1983, alleging that President Franks terminated him solely because of his grand jury and trial testimony. Applying Garcetti v. Ceballos (2006), the U.S. Court for the Northern District of Alabama granted Franks summary judgment motion on the grounds that Lane’s testimony had involved matters within the scope of his official duties. It did not matter that Lane’s testimony clearly involved a matter of public concern or that his testimony had not disrupted the operation of the CITY program (Lane v. Franks, 2013). Garcetti bared Lane from bringing suit.

Early in 2013, refusing to carve out a public corruption testimony exception to Garcetti, the Eleventh Circuit affirmed the decision of the District Court to grant Franks summary judgment motion (Lane v. Franks, 2013). The Appeals Court broadly construed the scope of Garcetti’s “official duties” test. “No one disputes that Lane was acting pursuant to his official duties as CITY’s Director when he investigated Schmitz’s work activities, spoke with Schmitz and other CACC officials about Schmitz’s employment, and ultimately terminated Schmitz’s employment,” stressed the Eleventh Circuit (Lane v. Franks, 2013, p. 712). “That Lane testified about his official activities pursuant to a subpoena and in the litigation context, in and of itself, does not bring Lane’s speech within the protection of the First Amendment,” continued the Appeals Court (Lane v. Franks, 2013, p. 712). Garcetti had left Lane out in the cold.

Writing for the unanimous U.S. Supreme Court in Lane v. Franks (2014a), Justice Sotomayer focused on the importance of making use of the two-part Pickering balancing test to resolve public employee freedom of speech cases. “Almost 50 years ago,” argued Justice Sotomayer, “this Court declared that citizens do not surrender their First Amendment rights by accepting public employment” (Lane v. Franks, 2014a, p. 2375). “Pickering provides the framework for analyzing whether the employee’s interest or the government’s interest should prevail in cases where the government seeks to curtail the speech of its employee,” continued Justice Sotomayer (Lane v. Franks, 2014a, p. 2376). After reaffirming the importance of the Pickering two-part balancing test to public employee freedom of speech jurisprudence, Justice Sotomayer sought to limit the application of Garcetti’s “official duties” threshold test to public corruption whistleblowers. “The critical question under Garcetti is whether the speech at issue is itself ordinarily within the scope of an employee’s duties, not whether it merely concerns those duties,” stressed Justice Sotomayor (Lane v. Franks, 2014a, p. 2379). In other words, reporting alleged instances of public corruption fell well outside Lane’s usual duties as CITY’s director. Lane served as an administrator and not as a criminal public corruption investigator. Because the subject matter of Lane’s testimony did not involve his normal day-to-day responsibilities, Garcetti did not bar Lane pursuing a freedom of speech retaliation claim.

In limiting the scope of Garcetti’s “official duties” test, Sotomayor stressed that

[i]t would be antithetical to our jurisprudence to conclude that the very kind of speech necessary to prosecute corruption by public officials—speech by public employees regarding information learned through their employment—may never form the basis for a First Amendment retaliation claim. (Lane v. Franks, 2014a, p. 2380)

Again, stressed Sotomayor, although Lane learned of corrupt conduct while performing his official duties, the investigation of public corruption did not constitute an essential element of his job. After finding a way to get around Garcetti’s official duties barrier, Sotomayor found that Lane’s testimony (public corruption) involved a matter of public concern (Lane v. Franks, 2014). As explained by Sotomayor, the “content of Lane’s testimony—corruption in a public program and misuse of state funds—obviously involves a matter of significant public concern” (Lane v. Franks, 2014, p. 2380).

Although the U.S. Supreme Court permitted Lane to continue with his First Amendment retaliation lawsuit, Lane v. Franks (2014) make it next to impossible for Lane to ultimately collect any money damages from the State of Alabama or Franks. The Eleventh Amendment prohibited federal courts from requiring state governments to pay money damages to the victims of constitutional torts (Rosenbloom, 2014a). The “qualified immunity” doctrine made it much more difficult to collect money judgments against state officials for constitutional rights violations (Rosenbloom, 2014b, pp. 175-82; Yong, 2004, p. 426). Reviewing the Eleventh Circuit’s decision granting Franks qualified immunity, Justice Sotomayor found that “Eleventh Circuit precedent did not preclude Franks from reasonably holding” that he believed it did not violate the Constitution to fire Lane for his testimony (Lane v. Franks, 2014, p. 2381).

Lane v. Franks and a Public Employee Freedom of Speech Rights Continuum

Defenders of the First Amendment freedom of speech rights of public employees might view Lane v. Franks (2014) as recognition by the U.S. Supreme Court that the adoption of the “official duties” threshold test constituted a major mistake. It did not. A majority of the U.S. Supreme Courts continue to have serious reservations about the extent of judicial oversight over public sector public personnel management. As explained by Rosenbloom (2014b), “the Supreme Court has sporadically attempted to extricate the judiciary from or prevent its intrusion into personnel decisions involving the exercise of managerial discretion or authority” (p. 149). Consequently, Lane v. Franks (2014) does little to immediately help a much larger number of public employees who, during the course of performing their official duties, become aware of instances of waste, fraud, abuse, and gross mismanagement, and then attempt to deal with it by reporting to their superiors. Because of the ongoing hostility of the U.S. Supreme Court to organizational dissent, public employees must recognize that the First Amendment only provides them limited protection from retaliation.

First, the First Amendment continues to protect the right of public employees to publicly speak out on a broad spectrum of issues, which fall within the protection of the Pickering two-part balancing test. Protected matters of public concern include expressing support or opposing the election of a particular candidate for office or even criticizing the policy decisions by serving elected officials such as a mayor, governor, or President of the United States as long as such speech does not unduly disrupt the day-to-day operations of the employee’s organization (Rankin v. McPherson, 1987). As long as the public employee did not come into possession of evidence of public corruption while performing his or her official duties, the disclosure of possible public corruption or official misconduct falls constitutes matters of public concern.

Like the general public, government employees have a much greater ability to go public with their views than previous generations of public employees due to the explosion in social media outlets. Although a public employer may prohibit their employees from talking to the media as part of performing their official duties, a government employer may not prohibit a public employee from talking to the media, maintaining a blog, or making use of Facebook or Twitter to communicate to the public on matters of public concern. Yet, the widespread availability of social media does not alter the requirement, established by Pickering v. Education (1968) and clarified by Connick v. Myers (1983), that any postings must concern a matter of public interest to qualify for First Amendment protection.

Second, Lane v. Franks (2014) clearly protects public employees who acquire evidence of public corruption and official misconduct within the course of performing their official duties if they find themselves subpoenaed to testify before a grand jury or at a criminal trial. However, in a concurring opinion, Justices Thomas, Scalia, and Alito raised the possibility of not providing First Amendment protection for “some public employees—such as police officers, crime scene technicians, and laboratory analysts when testifying is a routine and critical part of their employment duties” (Lane v. Franks, 2014, p. 2384).

Third, and particularly important to potential whistleblowers, Lane v. Franks (2014) does not create a broad waste, fraud, abuse, and public corruption exception to Garcetti. In theory, for instance, Lane v. Franks (2014) does not protect a public employee from retaliation for reporting possible public corruption to the appropriate law enforcement agency. Because the vast majority of whistleblowers learn of possible instances of waste, fraud, abuse, and public corruption in the course of performing their official duties, this fact creates a serious problem for any public employee considering reporting possible waste, fraud, abuse, and public corruption to the appropriate law enforcement agency. In Lane v. Franks (2014), Justice Sotomayor clearly disagreed with this application of Garcetti to this type of whistleblowing. As explained by Sotomayor, “[t]he critical question under Garcetti is whether the speech at issue is itself ordinarily within the scope of and employee’s duties, not whether it merely concerns those duties” (Lane v. Franks, 2014, p. 2379). Despite this language, lower federal courts will have to decide whether or not to adopt Sotomayor’s interpretation of Garcetti. It will take another U.S. Supreme Court decision specifically dealing with the application of Garcetti’s “official duties” test to decide whether to adopt Sotomayor’s interpretation of Garcetti. Only then will the U.S. Supreme Court have the opportunity to either endorse or reject a broad “official duties” public corruption disclosure exception to Garcetti.

Although this issue works its way through the federal courts, the “clearly established” constitutional right qualified immunity rule and the Eleventh Amendment will continue to sharply limit money judgment awards to public employees who may succeed in obtaining judicial recognition of this broader interpretation of Lane v. Franks (2014). The Eleventh Amendment will continue to bar money judgments for constitutional torts against state governments. The qualified immunity doctrine will continue to limit money judgments against local, state, and federal officials for violating the freedom of speech rights of public corruption whistleblowers.

In contrast to state and federal employee public corruption whistleblowers, U.S. Supreme Court decisions permit local government employees to seek money damages from the appropriate local government for violations of their constitutional rights by local government officials although a violation did not involve a clearly established constitutional right.

In Monell v. New York City Dept. of Social Services (1978), the U.S. Supreme Court held that local government employees could collect money damages against a local government if a municipal policy led to a violation of the employee’s constitutional rights (Lee, 1987). And in Owen v. City of Independence (1980), the U.S. Supreme Court held that municipal governments, unlike government employees, may not seek protection under the qualified immunity doctrine (Groszyk & Madden, 1981). If federal courts recognize a broader waste, fraud, abuse, public corruption, and official misconduct exception to Garcetti, a police officer who learns of illegal gift taking by other police officers in the course of performing his official duties and then reports such conduct to his superiors might be able to college money damages from his local government although the “clearly established” constitutional right doctrine might limit damages against those officials who retaliated against the officer for making the allegations.

Fourth, public employees and former public employees who uncover original evidence of false claims involving the use of federal funds, in the course of performing their official duties, now appear to have the ability to purse qui tam suits under the FCA. The FCA includes whistleblower protections independent of general federal and state whistleblower laws. Significantly, a small number of states enacted their own qui tam false claim statutes (Hertel, 2013). And despite limited success, public employees and former public employees continue to have the option of filing complaints under a number of federal whistleblower statutes enacted to help federal agencies enforce a number of important federal laws (Shimabukuro et al., 2013).

Fifth, many types of whistleblowing activities by public employees receive absolutely no legal protection (Thompson, 1985). As explained by the U.S. Supreme Court in Connick v. Myers (1983),

[o]ur responsibility is to ensure that citizens are not deprived of fundamental rights by virtue of working for the government; this does not require a grant of immunity for employee grievances not afforded by the First Amendment to those who do not work for the State. (p. 147)

Despite this fact, some public employees decide to engage in organizational dissent knowing they may face severe discipline. As explained by O’Leary (2010),

[d]ecision makers and others within organizations can easily become imprisoned in, and blinded by, their own thoughts and feelings about dissent because they are concerned solely with the particulars as their own careers, their own programs and their perspectives as separate things. (p. 17).

Many public managers “sincerely believe that the employee who speaks out is a self-serving malcontent who deserves no sympathy” (Martin, 2004, p. 228).

Due to this situation, public employees must carefully weigh the potential costs of their organizations dissent with the methods they decide to utilize. O’Leary argues that some dissenters have adopted guerrilla tactics to challenge actions taken by their organizations. Some of the tactics utilized by government guerrillas include (a) obeying your superiors in public but disobey them in private, (b) “ghost-[writing] letters, testimony, and studies for supportive interest groups,” (c) failing to correct mistakes of superiors and thereby letting them take the blame for mistakes, (d) ignoring “orders you think are unfair,” (e) holding clandestine meetings with supporters inside your organization “to plot a unified strategy,” and (f) cultivating a positive relationships with the media through the use of leaks of information (O’Leary, 2010, p. 12).

Thompson identifies four types of dissent commonly engaged in by public employees. First, some employees internally protest the actions of their organizations but still help to implement the policy they oppose or object to (Thompson, 1985). Other employees protest the actions of their organizations and then ask to be reassigned to avoid having to implement the policy. After Garcetti, this type of dissent has little or no First Amendment protection. Second, other employees openly “carry their protest outside the organization while otherwise performing their job satisfactorily” (Thompson, 1985, p. 558). If the subject matter of the dissent concerns a matter of public concern, Pickering may provide First Amendment protection for this type of dissent. Third, other employees may attempt to “withhold knowledge or expertise that the organization needs to pursue the policy . . . or give information and other kinds of assistance to outsiders who are trying to overturn the policy” (Thompson, 1985, p. 558).

According to Thompson (1985), this strategy may work or for a short time “but organizations can usually isolate the dissenters, find other officials to do the job, and mobilize its own external support to counter any opposition that arises outside the organization” (Thompson, p. 558). After Garcetti, this type of dissent has little or no First Amendment protection due to the adoption of the “official duties” threshold test. Fourth, according to Thompson, employees may engage in covert obstruction by making unauthorized leaks to the media or outside interest groups (Thompson, 1985). If the unauthorized leak does not violate the law and involves a matter of public concern, Pickering might protect the leaker from retaliation.

Organizational Dissent After Lane v. Franks (2014)

Many public organizations continue to view the “ideal administrator as a completely reliable instrument of the goals of the organization, never injecting personal values into the process of furthering these goals” (Thompson, 1985, p. 556). Some employees simply cannot accept this model of organizational behavior. These individuals face exceptionally difficult choices if they decide to engage in organizational dissent. Depending on the subject matter of their dissent and whether the dissent involves matters related to the performance of their official duties, they may or may not have some protection under the First Amendment. Also depending on the subject matter of their dissent, they may have some protection from retaliation under federal or state whistleblower laws. From a somewhat perverse perspective, Garcetti made it easier for public employees thinking about engaging in various forms of organizational dissent.

In short, if you get caught, do not expect the First Amendment to protect you if you engage in dissent in the course of performing your official duties. Lane v. Franks (2014) does little to immediately change this situation. In the long run, Lane v. Franks (2014) may lead the lower federal courts and ultimately the U.S. Supreme Court to recognize a broad “public corruption” disclosure exception to Garcetti. To the dismay of critics of Garcetti, the official duties threshold test will continue to make it exceptionally difficult for public employee whistleblowers to obtain First Amendment freedom of speech protection for various types of organizational dissent. To a certain extent, public employees must view Lane v. Franks (2014) as a wake-up call. Public employees must carefully weigh the benefits and risks of organizational dissent and act accordingly.