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Vol. 1, No. 1 | July 2006
Case Summaries: Garcetti v. Ceballos
by Kathleen Dooley
and Rachel K. Cain
Garcetti v. Ceballos, 2006 U.S. Lexis 4341 (U.S. Supreme Court, 2006)
A new Virginia statute and a new United States Supreme Court case address the Free Speech rights of public employees, especially in the context of “whistle-blowing.” Acts of Virginia 2006 Chapter 597 prohibits retaliation against a public employee who expresses an opinion to an elected official on a matter of public concern. Garcetti v. Ceballos permits retaliation against a public employee for statements he makes to his supervisors in the course of his employment. Together, the new statute and the case law create an incentive for public employees to take their concerns about their jobs straight to elected officials, instead of through the chain of command. The exception is public employees, such as assistant prosecutors, who work for elected officials. They are exposed to discipline under the Supreme Court case, but protected by the new statute.
The new statute, to be codified as Virginia Code §15.2-1512.4, reads as follows:
Nothing in this chapter shall be construed to prohibit or otherwise restrict the right of any local employee to express opinions to state or local elected officials on matters of public concern, nor shall a local employee be subject to acts of retaliation because the employee has expressed such opinions.
For the purposes of this section, "matters of public concern" means those matters of interest to the community as a whole, whether for social, political, or other reasons, and shall include discussions that disclose any (i) evidence of corruption, impropriety, or other malfeasance on the part of government officials; (ii) violations of law; or (iii) incidence of fraud, abuse, or gross mismanagement.
The statute thus imports into the Virginia Code two concepts that have been developed through the federal courts in the context of the Free Speech rights of public employees – “matters of public concern,” and “acts of retaliation.” In the Garcetti decision, the Supreme Court emphasizes the importance of identifying who speaks on the matter of public concern – the speaker as citizen, who is protected from retaliation by the First Amendment, or the speaker as employee, who is not.
Public employees do not surrender all First Amendment rights by reason of their employment. The First Amendment protects a public employee’s right, in certain circumstances, to speak as a citizen addressing matters of public concern. See, e.g., Pickering v. Board of Educ., 391 U.S. 563, 568 (1968); Connick v. Myers, 461 U.S. 138, 147 (1983); Rankin v. McPherson, 483 U.S. 378, 384 (1987); United States v. National Treasury Emples. Union, 513 U.S. 454, 466 (1995).
Several broad guidelines could be drawn from these cases. The first inquiry was whether the employee’s speech touched a matter of public concern, as opposed to his or her own private interests in employment. Speech of the former type was entitled to First Amendment protection, but not the latter. Even speech touching a matter of public concern, however, could form the basis of disciplinary action if it disrupted the workplace.
The Court refines this approach in the Garcetti case and emphasizes a new inquiry – was the speech made in the course of the individual’s employment, as an official duty of employment? If so, it is not protected by the First Amendment. If the speech is on a matter of public concern – even a matter related to the person’s employment – and is made in the individual’s role as a citizen of the community, then First Amendment protections will apply.
In short, the Court in Garcetti exposes to disciplinary action an employee who was previously protected – the employee whose speech in the course of employment duties touches a matter of public concern, such as corruption, impropriety or malfeasance on the part of government officials. That person is now protected from employer discipline in Virginia as long as he “expresses his opinions” to a state or local elected official.
The Garcetti Case: Factual Background
Since 1989, Richard Ceballos worked as a supervising deputy district attorney for the Los Angeles County District Attorney’s Office. In February of 2000, a defense attorney contacted him and informed him of inaccuracies in an affidavit that police had used to obtain a search. The attorney said he had filed a motion to challenge the affidavit and asked Ceballos to review the case. When reviewing the case, Ceballos found gross misrepresentations in the affidavit, such as a separate roadway being labeled as a long driveway and questionable statements about tire tracks on a roadway where the composition would make it difficult to leave visible tire tracks.
Ceballos told his supervisors of his findings, prepared a disposition memorandum, and recommended dismissal of the case. The trial court held a hearing on the motion challenging the warrant, and Ceballos was called by the defense to recount his observations about the affidavit; the court rejected the challenge to the warrant. Petitioners did not heed Ceballos’ recommendation to dismiss and proceeded with the prosecution.
Ceballos claims that after this series of events he experienced retaliatory employment actions such as reassignment from his supervising deputy position to that of a trial deputy position, transfer to a different courthouse, and denial of a promotion. He filed an employment grievance, but it was denied, and found that he had not suffered any retaliation.
The Garcetti Case: Procedural Background
Ceballos then sued in the U.S. District Court for the Central District of California, asserting a claim under Rev. Stat. § 1979, 42 U.S.C. §1983 and alleging that petitioners violated the First and Fourteenth Amendments by retaliating against him based on his memo. Petitioners responded that they had not taken any retaliatory actions against Ceballos, arguing that their actions were based on legitimate reasons and staffing needs.
Petitioners also asserted that Ceballos’ memo was not protected under the First Amendment and moved for summary judgment, which the District Court granted. The court noted that Ceballos wrote the memo pursuant to his employment duties and found that there was no First Amendment protection for the memo’s contents. They further held that even if Ceballos’ speech was constitutionally protected, petitioners had qualified immunity because the rights Ceballos asserted were not clearly established.
The Court of Appeals for the Ninth Circuit reversed, holding that Ceballos’ memo was protected speech under the First Amendment. The court used the First Amendment analysis set forth in Pickering v. Board of Educ., 391 U.S. 563 (1968) and Connick v. Myers, 461 U.S. 138 (1983). Connick describes an analysis that begins by considering whether the expressions in question were made by the speaker “as a citizen upon matters of public concern.” Id., at 146-147. The Court of Appeals determined that the memo was a matter of public concern, as it was calling attention to possible governmental misconduct. The court did not consider whether the speech was made in Ceballos’ capacity as a citizen, but instead relied on Circuit precedent that rejects the idea that a public employee’s speech is deprived of First Amendment protection when such speech or view is expressed pursuant to an employment responsibility. 361 F.3d. 1168, 1174-1175 (2004) (citing cases including Roth v. Veteran’s Admin. of Govt. of United States, 856 F.2d. 1401 (CA9 1988)).
The court then considered Ceballos’ interest in his speech against petitioner’s interest in responding to it. The court found in Ceballos’ favor, noting that petitioners “failed even to suggest disruption or inefficiency in the workings of the District Attorney’s Office” resulting from the memo. See 361 F.3d at 1180. Finally, the court concluded that Ceballos had clearly established First Amendment rights and that petitioners’ actions were not objectively reasonable.
The Supreme Court granted certiorari, and reversed.
The Garcetti Case: Opinion
Ceballos’ expressions were made pursuant to his duties as a deputy; he was fulfilling a responsibility to advise his supervisor about how best to proceed with a pending case. This distinguishes this case from cases where the First Amendment provides protection against discipline. The Court holds 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. “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.”
Ceballos was not acting as a citizen when he was conducting his profession activities, nor when he was writing the memo about a case. Rather, he was acting as a government employee. Refusing to recognize First Amendment claims based on government employees’ work product does not prevent them from participating in public debate. Employees retain the prospect of constitutional protection for their contributions to the civic discourse. But this protection does not give them the right to perform their jobs however they see fit.
Government employers require sufficient discretion to manage their operations. Official communications have official consequences which creates a need for substantive consistency and clarity. Employers must ensure that their employees’ official communications are accurate and promote the employer’s mission. If the Court were to follow the rule adopted by the Court of Appeals, it would commit state and federal courts to a new intrusive role, mandating judicial oversight of communications between and among government employees and their superiors in the course of official business. This rule would lead to permanent judicial intervention in the conduct of governmental operations to a degree inconsistent with sound principles of federalism and the separation of powers.
The Court believes the Court of Appeals’ rule is wrong because it “misconceives the theoretical underpinnings” of the Court’s decisions. Employees who make public statements outside the course of performing their official duties retain some possibility of First Amendment protection because it is the activity of a concerned citizen and the statement could be made by any citizen, regardless of their employment with the government. Such statements could include letters to local newspapers or discussing politics with a co-worker. However, when a public employee speaks pursuant to employment responsibilities, there is no analogue to speech by citizens who are not public employees.
The Garcetti Case: Holding
The First Amendment does not prohibit managerial discipline based on an employee’s expressions made pursuant to official responsibilities. Ceballos’ memo was such an expression and so his allegation of unconstitutional retaliation fails.
Commentary, Response, and Implications
Response to the Supreme Court’s holding in Gracetti v. Ceballos has focused on the effect it will have on protection for whistle-blowers in public positions. Critics predicted the impact would be sweeping, from silencing police officers who fear retribution for reporting department corruption, to subduing federal employees who want to reveal problems with government hurricane preparedness or terrorist-related security. Gina Holland, High Court Trims Whistleblower Rights, Washington Post, (May 2006) available at http://www.washingtonpost.com/wp-dyn/content/article/2006/05/30/AR2006053000622.html (last visited June 2, 2006).
See Also: Colombia's Civil War, WASHINGTON POST, available at http://www.washingtonpost.com/wp-dyn/world/issues/colombiareport/ (collection of articles); Penelope Patsuris, Can Integrity Be Taught?, FORBES, Oct 4, 2002, available at http://www.forbes.com/2002/10/04/1004virtue.html (last visited Aug. 16, 2004)
Ceballos has said, “it puts your average government employee in one heck of a predicament…I think government employees will be more inclined to keep quiet.”Id.. Steven Shapiro, national legal director of the American Civil Liberties Union, stated, “…in an era of excessive government secrecy, this makes government cover-ups easier by discouraging whistle-blowers.” Charles Lane, High Court’s Free Speech Ruling Favors Government, Washington Post (May 2006) available at http://www.washingtonpost.com/wp-dyn/content/article/2006/05/30/AR2006053000463.html (last visited June 2, 2006).
Professor Jack Balkin, of Yale Law School, wrote about the Garcetti decision in his online blog, Balkinization. Balkin notes the possible unintended consequences of the decision, stating:
After Ceballos, employees who do know what they are talking about will retain First Amendment protection only if they make their complaints publicly without going through internal grievance procedures. Although the Court suggests that its decision will encourage the creation and use of such internal procedures, it will probably not have that effect. Note that if employees have obligations to settle disputes and make complaints within internal grievance procedures, then they are doing something that is within their job description when they make complaints and so they have no First Amendment protections in what they say. Hence employees will have incentives not to use such procedures but to speak only in public if they want First Amendment protections…
Balkinization, http://balkin.blogspot.com/2006/05/ceballos-court-creates-bad-information.html (last visited June 2, 2006)
Supporters of the decision believe it will protect governments from lawsuits field by disgruntled workers pretending to be legitimate whistleblowers. Gina Holland High Court Trims Whistleblower Rights. Gene C. Schaerr, an attorney for the International Municipal Lawyers Association, an organization of local-government lawyers that supported the Los Angeles County district attorney’s office, said the ruling “allows local and state governments the appropriate degree of oversight of their employees, without really impinging upon their First Amendment right to speak as private citizens.” Charles Lane, High Court’s Free Speech Ruling Favors Government.
Moving forward from this decision, there are some questions left to consider. Will government employees be better off taking their complaints public first, instead of voicing their concerns to superiors? Did the Court really intend to embrace the notion that government workers should be protected least when they are speaking out about what they know the most, their own jobs? Should First Amendment protections turn on how a possibly long-forgotten government job description is written? Tony Mauro, Head-scratching Follows Gracetti Ruling, available at http://www.firstamendmentcenter.org/analysis.aspx?id=16956 (last visited June 2, 2006).