Top court's actions affect rights of employees


The arrival of two new U.S. Supreme Court justices has shaken up the law involving the rights of federal workers during the past two weeks - restricting their on-the-job rights to free speech in one case, while opening doors to certain kinds of lawsuits in another.

In the most recent case, an air traffic assistant in Anchorage, Alaska, believed that he was being unfairly singled out for drug and alcohol testing.

Terry L. Whitman said that after discovering that two co-workers were being subjected to their first test while he was facing Breathalyzer or urinalysis No. 11, he filed a grievance with the regional office of the Federal Labor Relations Authority, which replied that the matter was outside of its control.

Whitman appealed to the authority's general counsel, who also rejected his claim. Rather than try to handle the matter internally, Whitman filed a lawsuit in federal district court. By that time, he was on his 14th test, all of which came back negative, said Pamela S. Karlan, who argued the case on Whitman's behalf before the justices.

The government, however, argued that Whitman needed to follow the rules laid out in the Civil Service Reform Act of 1978 and file an informal grievance with his supervisor. If that didn't go his way, he could ask the union to take up his cause.

"The government's original position was that if the internal process didn't work out, he was out of luck," said Karlan, a law professor at Stanford University.

Karlan, however, argued that in Whitman's case, the grievance process was unnecessary because Whitman was not angry over a prohibited personnel practice that would be covered by the 1978 legislation. Instead, Whitman was challenging what he perceived to be a warrantless search, a constitutional issue.

"Whether you need to exhaust an administrative process depends on each agency, the statutes that apply and the kind of claim," Karlan said. "Some people have to go through that process, and the Supreme Court has sent this case back to the appeals court to determine whether Whitman is one of those people within the court's new legal framework."

The victory, Karlan said, was that the justices sent the case back to the 9th U.S. Circuit Court of Appeals, which had ruled that federal union members with grievances in its West Coast jurisdiction had "no right to go to federal court at all."

"In general, the [Supreme Court] found that federal workers are entitled to some form of judicial review, although the court in this particular case is not precisely sure what form of review that should be or when such review can be requested and in which court," Karlan said. "They clearly just threw up their hands. It was the oldest case on their docket, and they still couldn't see their way through resolving Whitman's issue cleanly."

And lawyers are still sorting out the repercussions of the decision handed down May 30 curtailing public employees' rights to free speech while making complaints up the chain of command.

The high court's ruling came in a California case involving Richard Ceballos, a deputy district attorney in Los Angeles, who in 2000 believed that a deputy sheriff had lied to obtain a search warrant, so the prosecutor sent two memos to superiors recommending they dismiss the case.

But the ruling - which held that public employees do not have full free-speech rights when speaking within their official duties - led former Howard County social services official Kathi H. Heslin to drop her lawsuit this week against the Ehrlich administration, which she had accused of firing her in retaliation for her comments to an official board.

In the California case, Ceballos notified the suspect's attorney of his findings and later was subpoenaed by the defense and testified. The judge did not throw out the warrant.

Ceballos said he was denied a promotion, demoted and transferred to an office farther from his home after voicing his concerns.

The court, in a 5-4 decision, ruled that Ceballos' supervisors could punish him for the memos. Giving those memos First Amendment protection, Justice Anthony M. Kennedy wrote for the majority, would unfairly limit managers' abilities to control their employees.

"If Ceballos' superiors thought his memo was inflammatory or misguided, they had the authority to take proper corrective action," Kennedy wrote. "Ceballos' proposed contrary rule ... would commit state and federal courts to a new, permanent, and intrusive role, mandating judicial oversight of communications between and among government employees and their superiors."

The court settled on a two-part test to determine whether a public employee's speech is protected.

The first element of that test is whether the employee was speaking as a citizen on a matter of public concern. The court ruled that Ceballos was speaking as an employee, rather than a citizen, and therein lied the outcome.

However, had Ceballos - as a citizen - written a letter to the editor about the case's outcome, his speech likely would have been subjected to a second balancing test that weighed his right to free expression on "matters of public importance" against the employer's right to keep the peace.

Bonnie Robin-Vergeer, who argued the case before the justices on Ceballos' behalf, said it is still too early to tell what impact the decision will have. But she believes fewer attorneys will take similar cases because they only get paid when they win, and the chances of that are "almost none" now.

"I expect a lot of litigation as a result of employees arguing whether the disclosure was part of their job or more of an extraordinary effort in which they stuck their neck out some way," said Robin-Vergeer of the Washington-based Public Citizen Litigation Group. "But overall, I can't really soft pedal it. It's a bad and damaging decision, and it's hard to see full the repercussions of employees being chilled because you don't know when it's happening."

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