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

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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