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Jun. 01, 2006
Copyright © Las Vegas Review-Journal


EDITORIAL: Silencing whistle-blowers

Does the freedom of speech mean a government employee can't be punished by his supervisors for "blowing the whistle" on what he perceives as malfeasance?

In a 5-4 decision, the U.S. Supreme Court on Tuesday reviewed a lower court ruling that Los Angeles County prosecutor Richard Ceballos was constitutionally protected when he wrote a memo questioning whether a county sheriff's deputy had lied in a search warrant affidavit. Ceballos had filed a lawsuit claiming he was demoted and denied a promotion for trying to expose the lie.

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But the justices overturned that lower court decision Tuesday, denying Mr. Ceballos relief. The ruling was seen as the clearest sign yet of the Supreme Court's political shift toward statism -- a willingness to defer to the convenience and prerogatives of those who run government agencies -- following the retirement of Justice Sandra Day O'Connor and the arrival of Samuel Alito.

A year ago, Justice O'Connor authored a 5-4 decision that encouraged whistle-blowers to report sex discrimination in schools. But on Tuesday, her replacement joined in the slim majority.

Exposing government misconduct is important, Justice Anthony M. Kennedy wrote for Tuesday's majority. "We reject, however, the notion that the First Amendment shields from discipline the expressions employees make pursuant to their professional duties."

Justice Kennedy said if Mr. Ceballos' superiors thought the memo was inflammatory, they had the authority to punish him. "Supervisors must ensure that their employees' official communications ... promote the employer's mission," Justice Kennedy wrote.

Parrot the party line, or get busted back to proverbial foot patrol? So the "mission" of the Los Angeles County prosecutor's office is to present a uniform and reassuring face to the public -- not to investigate possible police misconduct?

Of course a thorough probe into charges of official malfeasance will tend to be "inflammatory" -- to inflame public outrage and demands for reform. That's bad?

Critics predict the ruling in Garcetti v. Ceballos could have a sweeping impact for the nation's 20 million government employees, silencing police officers who fear retribution for reporting department corruption -- even FBI agents exposing inaction in the face of terrorist plans.

"I think government employees will be more inclined to keep quiet," Mr. Ceballos responded in a telephone interview.

"Private and public interests in addressing official wrongdoing and threats to health and safety can outweigh the government's stake in the efficient implementation of policy," wrote Justice David Souter, in dissent.

In fact, the best argument in favor of the decision is that whistle-blower status has been misused to stymie the normal function of government agencies, often with costly effect. Right here in Southern Nevada, it was Assemblyman Wendell Williams, the political sugar daddy of provisional community college employee Topazia "Briget" Jones, who was able to demand in 2003 that she be granted whistle-blower status there, thwarting the process of cutting her loose from what amounted to a patronage job.

Supporters of the ruling said it would protect government agencies' ability to hand out required negative performance reviews or demotions without fear of frivolous lawsuits filed by disgruntled workers pretending to be legitimate whistle-blowers.

Possibly. But at what cost to the public's right to know?


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