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Garcetti v. Ceballos; Alito Kills Whistleblowing

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The United States Supreme Court ruled this week on a case, Garcetti et al v. Ceballos, involving a public official's right to "blow the whistle" on what the official considered to be wrongful or illegal conduct by his employer, a District Attorney's Office in which he worked as a professional. The case revolved on an inaccurate affidavit used to get a search warrant, the evidence obtained as a result of which was, of course, "legally contaminated" and so, the case should not have been pressed using that evidence, asserted Deputy District Attorney Ceballos in a memorandum to his superordinates in the office. His employer thought otherwise and, seeing Ceballos's communication as a form of mutiny, retaliated against him. The Supreme Court overturned the Circuit Court opinion and ruled that the public employee does not have "whistleblower protection rights" under the First Amendment.

As it happens, new Supreme Court judge Samuel Alito, whose nomination was strongly resisted by liberals and the bar association, you will recall, cast the deciding vote in this matter, which was heard by the Court a second time to afford Alito a chance to register his opinion. This case foreshadows a very difficult time for us all. That 50 cycle hum you hear in the background is the Founding Fathers spinning in their graves.

The interesting thing about the majority opinion in this matter is that the Supreme Court sees an employer's right to "employment discipline" which, moreover, the Court thinks supercedes the rights persons have as citizens to express themselves under the First Amendment. It was held that: "When public employees make statements pursuant to their official duties, they are not speaking as citizens for First Amendment purposes, and the Constitution does not insulate their communications from employer discipline."

This outlandish reasoning establishes the notion that employees of public agencies somehow lose their status as "citizens" during working hours or otherwise in the performance of their duties as "employees." I am sure that no public employee considers him- or herself indentured to their governmental employers, nor do they believe themselves at any time bereft of their normal civil rights, but what else can this mean? The effect is the same. It gives new meaning the the idea of wage-slavery. It is an absurd and utterly dangerous concept!

The Court's opinion also sets out a doctrine that heads of public agencies are, because of the differential established by employee discipline between them and their employees, "above the law" that governs employees. It is obvious that the concept of "employee discipline" should not be regarded as a legal doctrine at all. Yes, employers can set conditions of employment, but each such condition is not a law and must not violate any law. Conditions of employment which violate law are unenforcible and should fall before each and every challenge.

Laws such as the Hatch Act which govern the political activities of federal governmental employees are not considered "conditions of employment," nor are the Laws governing civil service, the Uniform Code of Military Justice, etc. These laws apply to entire universes of personnel, not to specific agency missions.

Conditions of employment and the idea of "employment discipline," which is merely the one end of the bargain reached when someone becomes employed, are within the law, not above it. So, for instance if Ceballos had been late for work because of unusual traffic congestion on a Los Angeles freeway due to the overturn of a tanker truck at a crucial intersection, then Ceballos's excuse for violating the "employee discipline" of timely arrival is understandable and most would say reasonable. He would be within his rights to complain about retribution for his late arrival. So, then when Ceballos violates "employee discipline" by pointing out a failure to comply with (or in this case a direct flouting of) federal and state law, is this violation different because it goes to the very substance of the agency mission rather than simply the assembling of mission professionals in the office at 8:00 a.m.? A reasonable person would conclude that the employer's attempt to defend its own illegal behaviors is ipso facto illegal.

The Supreme Court has hung quite a load on this concept of "discipline" and it clearly is at odds with the fundamental belief in equality before the law. Yet, there is a "common sense" about employment discipline that all of us can understand. I can imagine a soldier huddled in a hole in the Iraqi desert emailing home complaints about the lack of body armor or the unwholesomeness of food or some other complaint that focuses on the decision making of persons senior to him. This happens all the time, yet we expect the soldier to do his duty while the complaints are being addressed. We understand "employee discipline" to be important to the smooth and efficient carrying out of missions. We do not fire or demote the soldier for complaining; actually, we expect it. Somehow we separate the soldier on combat duty complaining in a trench from the soldier in action, riding a humvee, jockeying to avoid roadside bombs. We are appalled when he is killed for the lack of body armor, and would be ready to lynch his NCO who handed him paper mache body "armor" and then put him harm's way.

The mental slight of hand that we experience when we think of necessary "employment discipline" and those times and places where discipline is inappropriate (or down right antagonistic to the values and laws we already have) is related directly to the word "mission." In the instant case, Ceballos was a professional lawyer and bearer of mission; his comments about the perversion of mission thwarted the carrying forward of the perverted mission, and thus he was in fact carrying out the mission. The employer viciously resented the underling professional making a determination about mission, for according to the organizational chart, decisions on mission fall to senior management, not junior professional personnel. Well, who says so?

Every professor at every state supported university in America is affected by this decision, as are all other "mission-bearing" professional employees of public agencies like the Food and Drug Administration, the National Institutes of Health, the IRS, the NSA, prisons, etc. Is the Supreme Court telling Professor "Jones" of the Philosophy Department at the University of Michigan that she no longer has the right to determine what will be said in her classroom? Where do understanding of mission and mission discipline diverge? If "Jones" begins discussing Home Economics, then the chair of the Philosophy Department might reasonably inquire as to the line of discussion when students appear at his door complaining, but ... and this is vitally important ... but, "Jones" has the right to approach the subject of Death and Dying or the subject of division of labor in society from any avenue that she chooses. The Chair and the students need to respect her credentials and her innovation as well as her intellectual destination. Same for Ceballos.

I will guess that you see the point. The mission of the Philosophy Department is to assemble professional philosophers to teach. The mission of the District Attorney's office ... determined by City Charter ... is to assemble a group of law professionals to prosecute violations of the Law, not to break the law! Equally, those who speak up when domestic spying is illegally conducted must be protected. Those among us who are spirited off into an endless tropical nightmare at Gitmo based on this tainted process of spying must be given back their rights.

The Supreme Court ruling on Garcetti v. Ceballos must be overturned. There is only one way to do this and that is to assure that the next Supreme Court nominations are made by and for honest men or women who understand what their oath to protect and defend the Constitution of the United States really means. How many times do we have to be kicked in the teeth before we understand this!

James Richard Brett
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James R. Brett, Ph.D. taught Russian History before (and during) a long stint as an academic administrator in faculty research administration. His academic interests are the modern period of Russian History since Peter the Great, Chinese (more...)

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