What you need to know before you blow the whistle 2

By Anne Richardson

Can a public employee be terminated because he testified truthfully that another government employee was defrauding the government?   That is the question in the case of Lane v. Franks, argued in front of the United States Supreme Court earlier this week.

Edward Lane was hired as interim director of an at-risk youth program for Central Alabama Community College.  Shortly after he started working, he audited the program’s finances, and found that Sue Schmitz, an employee who was also a  member of the State Legislature, appeared not to be performing her community relations job, even though she was collecting a paycheck.

Representative Schmitz’ “no show” job performance was investigated by the FBI, and eventually she became the subject of a federal prosecution by the United States Attorney for the Northern District of Alabama. Lane was subpoenaed by the U.S. Attorney to testify before a grand jury and in two criminal trials.

Lane testified truthfully that Representative Schmitz was on the payroll for his program –  one of its highest paid employees — but had never reported for work.  When he attempted to get her to carry out her job duties Schmitz refused, and  warned him not to mess with her.  He fired her despite the threat because he believed that allowing her to continue taking money for a “no show” job would make him complicit in her dishonesty.

Schmitz was convicted in federal court of taking $177,000 in public funds.  The Alabama Attorney General called the case “one of the most egregious public corruption situations in Alabama’s history.” It led to a total rewrite of its public corruption laws and ethics laws. But instead of being rewarded for his part in bringing her to justice, Mr. Lane was fired from his job.

Hey wait a minute, how could this happen?  Government whistleblowers are protected by the First Amendment, aren’t they?  Well, not always.  The Supreme Court has long held that government employers have greater latitude to discipline whistleblowers than employers in the private sector.  It created a balancing test to ensure that public employees cannot simply say whatever they want, to whomever they want.

In Pickering v. Board of Education, the Court ruled that the subject of the employee’s speech must be of public concern; the employee’s comments cannot be false; and the employee’s conduct must not interfere with the regular operations of the employer.  In Garcetti v. Ceballos, the Court ruled that if the employee’s speech is part of her official responsibilities, she is not protected from retaliation by the First Amendment.

The Lane case gives the Supreme Court its first opportunity to clarify what it meant in Garcetti.   The attorney representing Lane’s employer argued that since Lane’s testimony was based on information that Lane learned in carrying out his job duties, he is not protected by the First Amendment. Lane’s attorney responded that since testifying in response to a federal subpoena in a corruption investigation was not part of his job duties, he is protected.  Lane is supported by numerous groups, including the National Association of Police Organizations, whose “friend of the court” brief argued that permitting retaliation against officers who testify would “promote obstruction of justice.”

California law provides more protection to whistleblowers, both public and private. In 2013,the Legislature amended the California Labor Code to make it clear that employees are protected against retaliation “regardless of whether disclosing the information is part of the employee’s job duties.”

California’s approach is better because whether or not reporting misconduct is a whistleblower’s job, society loses if he is not protected. If you can terminate someone who fulfills his responsibility by testifying truthfully, you are creating a perverse incentive to lie under oath.  As a society, we should encourage whistleblowers who bring corruption to light, not punish them.  A decision from the high court should be announced this summer.

Anne Richardson

About Anne Richardson

Anne Richardson is the Associate Director of Public Counsel Opportunity Under Law, a project aimed at eliminating economic injustice on behalf of underrepresented workers, students, and families throughout California and nationwide. Previously she was a partner at Hadsell Stormer Richardson & Renick representing plaintiffs in all varieties of employment discrimination and civil rights matters for over twenty years. A graduate of Stanford Law School, she has been named to the Top 100 Lawyers in Southern California and has received numerous honors for her work.

2 thoughts on “What you need to know before you blow the whistle

  1. Reply Elisa Ungerman May 2,2014 4:22 pm

    This should be a no-brainer, based on common sense. But we know that the Supremes can overthink in order to rationalize some agenda-related outcome. Hopefully they will do the right thing.

  2. Reply Sam Rudolph May 3,2014 3:46 pm

    Very clear on a vital point. Whether these disclosures were a part of Lane’s official job duties or not, his termination was clearly retaliatory. And yes, such efforts to bring corruption to light should be encouraged, not chilled for fear of retaliation.

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