Tuesday, September 16, 2008 Bendigo: Walls in the workplace By Raul B. Bendigo Under My Hat
A DEPUTY district attorney (DDA - similar to our assistant prosecutor) in Los Angeles, USA, was asked by a defense lawyer to investigate a police officer who allegedly lied in an affidavit used in obtaining a search warrant.
After looking into the allegation of the defense lawyer, the DDA found misrepresentations in the questioned affidavit. The DDA then prepared a memorandum addressed to his superiors in the office and recommended the dismissal of the criminal case against the defense lawyer's client.
The DDA was asked by his supervisors to moderate or soften the wording of his memorandum. He revised his memorandum but the new one was still not to his bosses' liking. He was called to a meeting with his supervisors, the police officer who made the questioned affidavit and other members of the Los Angeles County Sheriff's Department. The meeting, wherein the DDA was criticized for his case handling, reportedly became heated.
The DA's office decided to push through with the theft case in court where the DDA appeared as defense witness and testified about his observations about the questioned affidavit. As a consequence, the DDA claimed, his bosses later retaliated against him. The alleged acts of retaliation included demoting him from his position as calendar deputy, refusing to assign him murder cases, denying him a promotion, and transferring him to a different branch of the court. He sued, invoking the First Amendment (freedom of speech) and the Fourteenth Amendment (right to due process), among other things, and a federal appeals court eventually agreed with him.
The case went up to the US Supreme Court (SC).
The bottom-line issue, as the DDA's lawyer suggested, was that workplace speech would be "chilled" without constitutional protections. The DDA's problem, as SC's Justice Antonin Scalia had asked, "You really need the Constitution to address all these complaints?" the suggestion being that there are other internal and legal avenues to pursue.
The DDA's lawyer replied that when public employees witness or investigate police misconduct and brutality and government corruption, they need the full protection of the law so that "they should not be required to tell their supervisors only what they want to hear," for fear of retaliation.
"Neither should a supervisor be required to get a report from an employee that's way off base," Scalia replied. He said the supervisor would otherwise be unable "based on this to say, 'You're fired.' "
"Who's going to decide?" asked Justice Stephen Breyer. "A constitutional court or a state court under state whistle-blower statutes?"
Voting 5-4, the Court, in a 2006 decision, ruled against the DDA.
The Court said that the first inquiry in cases involving public employee speech is whether he spoke as a citizen on a matter of public concern. If the answer is yes, a constitutional claim may arise and be, under certain conditions, sustained. If not, the claim will fail.
According to the Court, public employees often occupy positions of trust, and, when they speak, they may express views that may contravene governmental policy or may impair governmental operations. Thus, without some control over employees' words and actions, a government entity could not provide services efficiently.
The DDA's expressions were found to have been made pursuant to his duties as a prosecutor. The Court said that it did not matter that he had expressed his views while at work nor that the memorandum concerned the subject matter of his employment. The attorney "spoke as a prosecutor fulfilling a responsibility to advise his supervisor about how best to proceed with a pending case" and therefore he was not speaking as a citizen for Free Speech purposes. "The fact that his duties sometimes required him to speak or write does not mean his supervisors were prohibited from evaluating his performance."
The Court echoed the words of Mr. Oliver Wendell Holmes Jr., one of the most widely cited justices in US history: a policeman "may have a constitutional right to talk politics, but he has no constitutional right to be a policeman."
