Court case on public employee free speech rights could have ‘dramatic’ impact

Joe Davidson
Columnist April 29

A Supreme Court case involving a former community college employee in Talladega, Ala., could have First Amendment implications for federal employees around the globe.

Edward Lane, who was director of a youth training program at Central Alabama Community College, contends he was fired in retaliation for his testimony in proceedings related to a no-show employee, whom Lane terminated. A circuit court decided against him, though the state attorney general said his testimony led to a “total rewrite of our public corruption laws.”

Joe Davidson writes the Federal Diary, a column about the federal workplace that celebrated its 80th birthday in November 2012. View Archive

Now the Supremes, who heard arguments in the case Monday, can decide who is right.

Their decision could affect the free-speech rights of millions of government workers.

The case deals with a basic question: Do rights that Americans have as citizens also apply in their roles as public employees? Based on various court decisions, the answer seems to be yes and no, maybe and sometimes.

The decision in the current case could provide a big blow for or against federal whistleblowers who testify about wrongdoing in their agencies.

“If the Supreme Court rules for Lane, this could open the door for federal employees to directly sue their managers in federal court, if they are retaliated against for testifying before a federal grand jury, or in a similar criminal proceeding,” said Stephen M. Kohn, executive director of the National Whistleblowers Center. “If the Court denies First Amendment free-speech protection for such testimony, it would be a devastating loss for whistleblowers and government accountability.” The center filed a brief supporting Lane.

A 2006 Supreme Court ruling in Garcetti v. Ceballos, according to an American Bar Association preview of the Lane case, found that “the First Amendment offers no protection to speech employees make pursuant to their official job duties.”

Though most of the current justices were on the court when that restrictive view of public employee rights was adopted, my colleague Robert Barnes reported that “the justices clearly seemed sympathetic to Lane” during this week’s oral arguments.

A more realistic and expansive view was expressed in a 1968 Supreme Court decision, Pickering v. Board of Education. It said “free and open . . . debate is vital to informed decision-making by the electorate.” Referring specifically to teachers, but by extension other public employees, the court added that they are “the members of a community most likely to have informed and definite opinions. . .Accordingly, it is essential that they be able to speak out freely on such questions without fear of retaliatory dismissal.”

Yet that ruling also held that governments have “interests as an employer in regulating the speech of its employees that differ significantly” from those limits placed on the speech of citizens in general.

A brief filed by the Government Accountability Project, an organization that supports whistleblowers, cited three cases involving federal employees to demonstrate the importance of protecting those who testify. The employees all appeared before Congress and faced threats or retaliation because of it. Coleen Rowley spoke about FBI shortcomings related to the Sept. 11, 2001, terrorist attacks. Peter Buxtun, an epidemiologist with the U.S. Public Health Service, testified about the Tuskegee syphilis experiments on black men. Ernest Fitzgerald, a Defense Department staffer, provided information about huge cost overruns on the C-5A cargo plane.

Though the justices seemed sympathetic to Lane, no one knows where they will land on this question this time.

As the ABA preview said, if government workers don’t have free-speech protections when testifying, that “could have dramatic ramifications for the government’s ability to investigate and prosecute public corruption, waste, fraud, and other unlawful activity in administrative, civil, and criminal proceedings.”

Retroactive payments

A federal labor organization says the government should not force workers to make retroactive retirement contributions because the government failed to collect them at the time the payments were due.

The American Federation of Government Employees says workers hired this year would have to pay up to $1,300, at a rate of $25 per pay period, until their “debt for underpayment” is satisfied.

According to AFGE, the government has been unable to collect full employee retirement contributions through paycheck deductions for employees hired in 2014 and won’t have that capability until late July or August. To make up for that, $25 will be deducted from their checks until the amount missed since the beginning of the year is covered.

Citing a memo from one Pentagon agency to its employees, AFGE said the correct retirement contributions will be deducted from their checks beginning Aug. 21 and the workers will be given the option to pay “the debt in full or by installment.”

“It is wrong to treat this failure on the part of the employer to operationalize its payroll deduction system for as long as 17 pay periods [as] a case where employees have incurred a ‘debt for underpayment’ to the government,” AFGE President J. David Cox Sr. said in a letter to Beth Cobert, a deputy director of the Office of Management and Budget. “This would be a heavy burden for newly hired federal employees who will already be struggling to make ends meet on inadequate salaries that were frozen for three years and adjusted by a mere one percent this year.”

The OMB had no comment.

Twitter: @JoeDavidsonWP

Previous columns by Joe Davidson are available at wapo.st/
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