Whistleblower Protection for Public Employees

The Civil Rights Act protects against government action violating constitutional rights if (1) plaintiff has spoken on a matter of public concern, (2) the state lacks an adequate justification for treating the employee differently from any other member of the general public, and (3) there is a genuine and material dispute as to the scope and content of plaintiff's employment duties.”

Recent cases covering these issues are briefed below:

Public Employee Whistleblower Protection Improved

Posey v. Lake Pend Oreille School Dist. No. 84, --- F.3d ---- (2008 C.A.9 -Idaho), October 15, 2008

A former high school employee filed § 1983 (Civil Rights Act) action against the school district claiming retaliation in violation of First and Fourteenth Amendments. His position as security specialist was eliminated and the district failed to rehire him in newly consolidated position after he sent a letter of complaint to district officials. He also had meeting to complain of both personal grievances and alleged inadequate safety and security policies at high school. United States District Court for the District of Idaho, Edward J. Lodge, J., granted district summary judgment based on the U.S. Supreme Court’s decision in Garcetti v. Ceballos, 547 U.S. 410, 126 S.Ct. 1951, 164 L.Ed.2d 689 (2006).

Ceballos, a district attorney, claimed he had been fired for a memo he had written alleging misrepresentations in a police affidavit supporting a search warrant. The Supreme Court held that when a public employee speaks pursuant to his or her official duties, as Ceballos did, the speech is not protected because any restriction on that speech “simply reflects the exercise of employer control over what the employer itself has commissioned or created.” The Court distinguished “work product” that “owes its existence to [an employee]'s professional responsibilities” from “contributions to the civic discourse,” which “retain the prospect of constitutional protection” for the speaker.

In Posey, The Ninth Circuit, held that the scope of the public employees duties was a question of fact for the jury if there is a genuine and material dispute as to the scope of the employees employment duties. The court stated the ruling:

“We conclude that, following Garcetti, the inquiry into whether a public employee's speech is protected by the First Amendment is no longer purely legal and presents a mixed question of fact and law. Summary judgment is therefore inappropriate where, as here, (1) plaintiff has spoken on a matter of public concern, (2) the state lacks an adequate justification for treating the employee differently from any other member of the general public, and (3) there is a genuine and material dispute as to the scope and content of plaintiff's employment duties.”

The ruling in Posey will allow more public employee whistleblower cases to survive summary judgment. 95% or more of civil cases settle after a denial of summary judgment. Whistleblower rights are limited to cases where the employee has spoken on a subject of “public concern.”