Whistleblower Protection Blog : Whistleblower Lawyer & Attorney : National Whistleblower Legal Defense and Education Fund : Whistleblower Protection, Fraud Claims : Washington DC

In Nancy M. Modesitt’s recent research article “The Garcetti Virus,” she explains how a doctrine known as the job duties exclusion has come to erode protections once afforded to whistleblowers. She explains that this doctrine allows the discharge of an individual who discovers illegal activities while performing his or her job and then reports those issues to a supervisor. Although one might think the current whistleblower laws would protect such disclosures, Modesitt explains that is no longer the case.
Modesitt details how the the Federal Circuit created the job duties exclusion more than a decade ago in the case of Wills v. Department of Agriculture (1998). The case involved an employee in the Department of Agriculture who reported to his supervisor that a number of farms he had investigated were not complying with a government soil-protection program. The supervisor disagreed with the employee’s findings and overruled him on 6 of the 7 cases. The employee complained about the decision and later claimed that he was retaliated against for his comments. When the case was heard by the Federal Circuit, the court decided that the employees comments did not put him “at personal risk for the benefit of the public good.” As such, the court ruled that his comments could not “constitute a protected disclosure under the [Whistleblowers Protection Act (WPA)].” In later cases involving disclosures made by federal employees, the courts further limited the protection afforded to them for their whistleblower activities.

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Last week, the U.S. Court of Appeals for the Ninth Circuit issued an opinion holding that a social worker is protected from retaliation for his courtroom testimony about  a former client. The case is Clairmont v. Sound Mental Health and Wilson, No. 09-35856 (9th Cir. 2011).

From 2005 to 2007, Sound Mental Health (SMH) of Seattle, Washington, employed Richard Clairmont as a domestic violence  program manager. He supervised a treatment program for offenders and members of the public.  SMH had a contract with the Seattle Municipal Court. In exchange for providing the services and making regular reports to the Court, the Court gave SMH office space and equipment. Joni Wilson was the Manager of Probation Services for the Court.

In 2007, a criminal defense attorney subpoenaed Clairmont to provide expert testimony in her client's case.  The client spoke Spanish, and had been terminated by a competing treatment program. Clairmont agreed to provide the testimony about the possibility that the client was treated differently because of the language issue. The Court's probation office was seeking a court determination that the client had violated the terms of probation such that the court should revoke probation and impose a jail sentence. When Wilson learned about Clairmont's testimony, Wilson called Clairmont's supervisor at SMH. Two weeks later, SMH fired Clairmont because of "critical feedback from the City of Seattle Domestic Violence Probation Officers Unit about your performance." The letter noted that "The program is in jeopardy. They have proposed a stop-referral beginning immediately. This leaves SMH with no option but to terminate your employment effective today.

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The Department of Labor's Administrative Review Board (ARB) has released eleven (11) decisions issued in July, four (4) of which address substantive law.  That is down from seven (7) substantive decisions issued in July 2009. At this rate, it will be difficult for the ARB to bring its backlog down below two years anytime soon.

In Vinnett v. Mitsubishi Power Systems, ARB No. 08-104, ALJ No. 2006-ERA-29 (ARB July 27, 2010), the ARB made clear that employees are protected when they perform their safety responsibilities too well. The ARB cited long-standing DOL precedent in holding that protected activity is still protected, even if it is part of the employee's normal job duties. William Vinnett began working for Mitsubishi Power Systems (MPS) in 2004 as a field project engineer. MPS assigned him to assess equipment vibrations at the Palisades Nuclear Power Plant in Michigan. Vinnett reported a variety of concerns about technical errors, procedural violations and damage to a pressurized vessel.  He had to pester his supervisor to discuss these concerns. When he finally got his meeting, he received a warning letter about his performance. When he asked for another meeting a month later, he was fired.“The [Secretary’s] ruling simply forbids discrimination based on competent and aggressive inspection work. In other words, contractors regulated by [the ERA] may not discharge quality control inspectors because they do their jobs too well.”

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The governor of Ohio and an attorney working for Ohio's Bureau of Workers Compensation are disagreeing about what is a "typical whistleblower situation." According to the Columbus Dispatch, attorney Joseph Sommer sent an email to the Governor last May. He asked for an official state investigation of why a state panel had not complied with a state law requiring nominations for the Industrial Commission within sixty (60) days of a vacancy. Sommer used the state's email account to send his email. Instead of investigating the state's nominating panel, the state investigated Sommer for using his work email account.  The state has now issued a reprimand to Sommer for communication that was less than "professional." Sommer is contesting it.  The Governor's office says that Sommer's case, "differs from a typical whistle-blower situation." I don't know.  An employee points out how superior officials are breaking the law, and the boss blames the messenger.  That sounds pretty typical to me. The boss says that the whistleblower didn't use the proper means for raising the concern.  That sounds pretty typical, too. The boss punishes the whistleblower.  Typical again. Sommer may benefit from following the Supreme Court's consideration of City of Ontario v. Quon. The issue there is whether employees can have any expectation of privacy in using work equipment to communicate. Also, it is ironic to have a state claiming that the whistleblower communication was personal and didn't belong on the work computer. That argument could support Sommer if he were to claim that his email was made in his personal capacity and protected under Garcetti v. Ceballos, 547 U.S. 410 (2006).

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in 2006, the U.S. Supreme Court decided Garcetti v. Ceballos, in which they held that government employees are not protected by the First Amendment when they report concerns at work. This awful decision served as an impetus for advocates of employee rights, civil rights, and free speech issues, to band together and demand a comprehensive whistleblower law to protect government employees.  While advocates continue to battle for whistleblower rights in Congress, federal courts have begun to recognized the ill-conceived policies of the Garcetti decision. Recently, we told you about a 10th Circuit federal appeals court decision that allowed a building inspector whistleblower to have his day in court. Now, the 4th Circuit has produced a great decision in favor of a Baltimore policeman who reported misconduct in the police shooting of an unarmed elderly man.

As pointed out by this article, posted on The First Amendment Center website, Judge Wilkinson's concurring opinion in that case, Andrews v. Clark, is a powerful rebuke of the policies underlying the Garcetti decision. In his concurrence, Judge Wilkinson says that throwing out the whistleblower's case "would have profound adverse effects on accountability in government"  and “informed scrutiny of the workings of government...is impossible without some assistance from inside sources such as Michael Andrew.” This decision, along with Judge Wilkinson's concurrence, is great evidence that our federal judges get it.
 

I highly recommend reading the article, as well as the Andrews v. Clark decision.

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 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:

www.ca10.uscourts.gov/opinions/07/07-6197.pdf

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