When the United States Supreme Court issued the controversial 5-4 decision in Garcetti v. Ceballos, 547 U.S. 410 (2006), whistleblower advocates were rightly upset about the huge loophole the Court created for government officials who retaliate against whistleblowers. The Supreme Court held that the First Amendment does not protect public employees when they are raising concerns as a part of their official duties.
A recent decision by the U.S. Court of Appeals for the 10th Circuit, however, highlights a snag for government officials who are trying to escape liability: how many employees really have an assigned job duty of blowing the whistle on their boss? In Thomas v. City of Blanchard (Oklahoma), Case No. 07-6197 (December 3, 2008), the Court concluded that Ira Thomas was not acting pursuant to his duties as a building inspector when he threatened to report a fraudulent building certificate to the Oklahoma State Bureau of Investigation (OSBI). Reporting crimes to OSBI was not a part of Thomas' regular duties; it was not what the City had "commissioned" him to do. "Merely because an employee’s speech was made at work and about work does not necessarily remove that employee’s speech from the ambit of constitutional protection." The Court held that the mayor was not personally liable as there was no evidence that linked him to the decision to discharge Thomas. The City, and two other officials involved in Thomas' termination, will now face a jury on Thomas' claims.
The Court's opinion is available at: