posted
Demotion for dissent I didn't hear anything about this case coming through the works, and I'll admit- it disturbs me. I don't like the idea of a government official being punished because they did the right thing. I haven't given it too much thought yet, but I was interested in what people thought, Dagonee in particular. What would you do if you had been in the prosecutors shoes? Is the article reporting things accurately?
This is exactly the kind of ruling the people feared from Alito.
I wonder how long it will take before prolifers start to regret his appointment as much as progressives do.
With that said, from what I understood in the article if the Lawyer had gone to the press with the information, he would have been protected by Whistleblower laws but because he went to his supervisor first, he had no protect. It seems that one clear unintended consequence of this ruling is that public employees will start going to the press first when they believe something has been done wrong rather than first trying to fix the problem through appropriate channels.
I can't see that there will be any winners here.
Posts: 12591 | Registered: Jan 2000
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posted
I tend to agree but I am not suprised. Any company would demote or fire someone who was trying to do the same thing in the public sector and no one would be suprised. So why should the actions suprise us in the Governmental sector?
Posts: 224 | Registered: Jan 2001
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The "speech" at issue was a memo stating his interpretation of the law. That can't be protected speech. He wrote it as an employee. A prosecutor's office is politically accountable and legally accountable. The exercise of discretion MUST rest with the political appointee or the one to whom the appointee delegates it. While lawyers are required to make certain disclosures to the defense, the trial judge's ruling in the case the memo was about makes it clear there was no duty to disclose here.
Even if some speech expressed in the course of ones duty is due protection, "speech" that is the actual product of employment should not be. This was a question of judgment. The judgment was found to be lacking by the superior - a type of decision made every day in this country by supervisors of all stripes.
quote:With that said, from what I understood in the article if the Lawyer had gone to the press with the information, he would have been protected by Whistleblower laws but because he went to his supervisor first, he had no protect.
Probably not, if his disclosure was of confidential information. There are confidentiality issues present in a prosecutor's office not present in many other agencies.
More importantly, I'm not at all sure whistleblower statutes would apply here.
quote:That consideration--the fact that Ceballos spoke as a prosecutor fulfilling a responsibility to advise his supervisor about how best to proceed with a pending case--distinguishes Ceballos' case from those in which the First Amendment provides protection against discipline. We hold that when public employees make statements pursuant to their official duties, the employees are not speaking as citizens for First Amendment purposes, and the Constitution does not insulate their communications from employer discipline.
Ceballos wrote his disposition memo because that is part of what he, as a calendar deputy, was employed to do. It is immaterial whether he experienced some personal gratification from writing the memo; his First Amendment rights do not depend on his job satisfaction. The significant point is that the memo was written pursuant to Ceballos' official duties. Restricting speech that owes its existence to a public employee's professional responsibilities does not infringe any liberties the employee might have enjoyed as a private citizen. It simply reflects the exercise of employer control over what the employer itself has commissioned or created. Cf. Rosenberger v. Rector and Visitors of Univ. of Va., 515 U. S. 819, 833 (1995) ("[W]hen the government appropriates public funds to promote a particular policy of its own it is entitled to say what it wishes"). Contrast, for example, the expressions made by the speaker in Pickering, whose letter to the newspaper had no official significance and bore similarities to letters submitted by numerous citizens every day.
(Cheap plug: Rosenberger is the case I was a plaintiff in. )
Also, note that we're talking the floor of protected speech here. Congress or the state legislatures are perfectly entitled to limit public agencies' power to punish such conduct. And, in anticipation of people saying they won't, I'll merely point out that both California and Federal agency employees have statutory protection much stronger than the constitutional baseline in many, many areas.
quote:This is exactly the kind of ruling the people feared from Alito.
I'd be very surprised if O'Connor would have voted any differently. Of course, we'll likely never know either way.
Posts: 26071 | Registered: Oct 2003
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Oh, and I can't let this slide. "No free speech for gov't employees" is a totally misleading summary of the holding. Government employees are more heavily protected than private employees in this regard, and this case preserves protection for government employee speech in many situations.
Posts: 26071 | Registered: Oct 2003
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posted
I guess what was bothering me on an gut level is that the employee seemed to be attempting to call attention to a potential government abuse of authority. I understand the necessity of keeping the government running smoothly and respecting the chain of command. However, I just hate to see superiors punishing people for trying to do the right thing, especially when the functions of the government are involved. It just seems to important. I know I"m not being very clear about my feelings on it, I'm just trying to work out what I think about it.
Posts: 1412 | Registered: Oct 2005
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True, but I see no indication that they would be protected if they did 'whisteblow'. On the contrary, it seems to me that because of this ruling they would be much more likely to be punished whether working within or external to their chain of command.
In regards to my last post, Justice Souter expressed his concerns much better than I could ever do. They're pretty similar to mine.
quote: ...private and public interests in addressing official wrongdoing and threats to health and safety can outweigh the government's stake in the efficient implementation of policy, and when they do public employees who speak on these matters in the course of their duties should be eligible to claim First Amendment protection.
quote:However, I just hate to see superiors punishing people for trying to do the right thing, especially when the functions of the government are involved.
I agree. A constitutional level of protection is not the way to prevent that.
Posts: 26071 | Registered: Oct 2003
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quote:Probably not, if his disclosure was of confidential information. There are confidentiality issues present in a prosecutor's office not present in many other agencies.
More importantly, I'm not at all sure whistleblower statutes would apply here.
Out of interest, Dag, what recourse would someone in a prosecutor's office have if he felt that he were witnessing a miscarriage of justice and wanted to head it off before it happened? Were you in his position, what would you have done?
I'm curious how you would prevent elected executives from functioning in a complete vacuum under this system, since market pressures won't force out-of-touch or incompetent politicians out.
Posts: 37449 | Registered: May 1999
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quote:Out of interest, Dag, what recourse would someone in a prosecutor's office have if he felt that he were witnessing a miscarriage of justice and wanted to head it off before it happened? Were you in his position, what would you have done?
I don't think he was right in this case, so I wouldn't have done anything, but let's suppose for a minute I think a miscarriage of justice were being done.
There are several possibilities:
1.) Prosecuting someone on evidence I know and can prove is being faked. First, I'd go up the chain of command within the office. If the corruption went all the way to the top, I think I'd wait until the evidence had been presented in some fashion to the judge or grand jury (the first time wouldn't be at trial). Then I'd file a complaint with the ethics committee for violation of duty of candor to the tribunal. I'd also select the appropriate authority to go to - maybe the judge, maybe a U.S. attorney's office (since this would be a civil rights violation), maybe the defense attorney. I would certainly intervene in time to prevent a conviction without waiting for whatever authority I went to. If worse comes to worse, I tell everyone who'll listen what's going on, confidentiality be damned.
2.) Evidence being introduced I suspect is fake but can't prove. That's very tricky. It's a hell of a thing to accuse a cop of lying, and without evidence, I'm not sure it's our place. I'd investigate, see if I could figure anything out, but without proof (not trial-level proof, mind you, but some evidence of wrongdoing), I doubt I'd do anything other than talk it over with my boss.
I'm trying to think of what other miscarriage of justice would be parallel. Feel free to pose a specific hypothetical.
quote:I'm curious how you would prevent elected executives from functioning in a complete vacuum under this system, since market pressures won't force out-of-touch or incompetent politicians out.
Not sure what you mean here.
Posts: 26071 | Registered: Oct 2003
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"I don't think he was right in this case..."
I don't know too many of the details, here. Why do you think he should not have revealed the deputy's false pretenses? While I understand there's no "duty" to disclose, it seems like a violation of the spirit of the law to overlook this sort of thing.
Posts: 37449 | Registered: May 1999
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quote: After examining the affidavit and visiting the location it described, Ceballos determined the affidavit contained serious misrepresentations. The affidavit called a long driveway what Ceballos thought should have been referred to as a separate roadway. Ceballos also questioned the affidavit's statement that tire tracks led from a stripped-down truck to the premises covered by the warrant. His doubts arose from his conclusion that the roadway's composition in some places made it difficult or impossible to leave visible tire tracks.
Ceballos spoke on the telephone to the warrant affiant, a deputy sheriff from the Los Angeles County Sheriff's Department, but he did not receive a satisfactory explanation for the perceived inaccuracies. He relayed his findings to his supervisors, petitioners Carol Najera and Frank Sundstedt, and followed up by preparing a disposition memorandum. The memo explained Ceballos' concerns and recommended dismissal of the case. On March 2, 2000, Ceballos submitted the memo to Sundstedt for his review. A few days later, Ceballos presented Sundstedt with another memo, this one describing a second telephone conversation between Ceballos and the warrant affiant.
Based on Ceballos' statements, a meeting was held to discuss the affidavit. Attendees included Ceballos, Sundstedt, and Najera, as well as the warrant affiant and other employees from the sheriff's department. The meeting allegedly became heated, with one lieutenant sharply criticizing Ceballos for his handling of the case.
Despite Ceballos' concerns, Sundstedt decided to proceed with the prosecution, pending disposition of the defense motion to traverse. The trial court held a hearing on the motion. Ceballos was called by the defense and recounted his observations about the affidavit, but the trial court rejected the challenge to the warrant.
He was right to investigate, right to bring it up, and right to express his view that the affidavit was in error. But, in that expression, he needed to ensure that he didn't compromise the office. Souter's dissent describes the possible issues very well:
quote:It is not, of course, that the district attorney lacked interest of a high order in what Ceballos might say. If his speech undercut effective, lawful prosecution, there would have been every reason to rein him in or fire him; a statement that created needless tension among law enforcement agencies would be a fair subject of concern, and the same would be true of inaccurate statements or false ones made in the course of doing his work.
Where Souter and the majority disagree is with the proposition that the calculation of those issues should be left to the courts under the constitution.
Let's also remember that the facts being examined are being viewed in the light most favorable to the plaintiff - we have no idea if this is what actually happened at this point.
Posts: 26071 | Registered: Oct 2003
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quote:However, I just hate to see superiors punishing people for trying to do the right thing, especially when the functions of the government are involved.
I agree. A constitutional level of protection is not the way to prevent that.
So you would rather see a legislative solution then? Or are you suggesting another avenue altogether? I'm not against that, nor am I saying that the courts are the best way. It just seems like without the court case, it would be difficult to get the protection made law.
I just want to make sure I understand what you're saying. 1) It's desirable that protection for the employees making an positive ethical choice that is not favorable to their superiors exists. 2) It does not currently exist 3) It should not be decided as a constitutional issue by the courts.
This particularly concerns me in the arena of our justice system. The potential for abuse and resultant harm is just too great to be ignored.
Posts: 1412 | Registered: Oct 2005
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quote:1) It's desirable that protection for the employees making an positive ethical choice that is not favorable to their superiors exists.
Yes. But, when the job requires making a discretionary decision ("is this material exculpatory" or "was this search proper") it is very important to remember that the "ethical" concerns are actually work product.
Here, there doesn't seem to be any allegation that would not be solved in the normal manner - by being challenged by defense attorney and evaluated in court. In fact, it was evaluated in court, using this prosecutor's information, and the judge rejected the attack on the affidavit. This decision is reviewable on appeal and, from what I've heard, was either not challenged or was upheld.
In other words, this attorney was WRONG about a determination that it is part of his job to make. In some situations, we call that incompetence.
As a boss, I don't think I ever punished employees for expressing wrong opinions. But, when the expression of an opinion (correct or incorrect) causes friction with colleagues, I did deal with it as needed. I also forbade people from sharing certain opinions with customers, something it was absolutely necessary to do to preserve good customer relationships. When you sell advice (which is essentially what consultants do), someone has to be responsible for what advice is given. When that someone is me, I will not tolerate someone going around me. It's not an ego thing - I was very good about soliciting and using ideas from my employees - but an accountability thing.
quote:2) It does not currently exist
I don't agree with this at all. It definitely exists now, in many agencies.
quote:3) It should not be decided as a constitutional issue by the courts.
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