Wednesday, May 30, 2007

Ceballos Strikes Again

Scale_of_justice As readers of this blog know, I am no fan of the Supreme Court's 2006 decision in Garcetti v. Ceballos, which drastically reduced the First Amendment rights of public employees.  I have posted my views about how this current state of affairs impacts the ability of public employees to act as the vanguard of the citizenry in my recent Legal Times column, More Than Employees: Citizens working in government need better constitutional protection from retaliation.

Now comes fresh evidence from the Seventh Circuit that Ceballos is as bad as advertised.  Ross Runkel summarizes in his Employment Law Memo the case of Sigsworth v. City of Aurora, 05-4143 (7th Cir. May 25, 2007):

Sigsworth sued the employer for wrongful discharge under 42 USC Section 1983 alleging retaliation for the exercise of his First Amendment free speech rights. The trial court   dismissed the complaint. The 7th Circuit affirmed.

Sigsworth was an investigator on a multi-jurisdictional task force and, after a botched, reported to his supervisors what he believed to be misconduct. The court noted that Garcetti     v. Ceballos, 126 SCt 1951 (2006) required that before analyzing whether an employee's speech was of public concern, a court must determine whether the employee was speaking "as a citizen" or pursuant to his duties as a public employee. The court concluded that because Sigsworth's speech was part of the tasks he was employed to perform, he spoke not as a citizen but as a public employee, and that speech was not entitled to protection by the First Amendment. The court stated that Sigsworth may be entitled to protection under the Illinois Whistleblower Act.

Not to beat a dead horse, but this is what I'm speaking about at the NYU Conference on Labor this week, so it is much on my mind.  First, public employees can both be citizens and employees at the same time.  It is not an either-or proposition.  An employee like Sigsworth can both make his workplace better and society better by whistle blowing in these type of circumstances.

Second point is that just because Sigsworth may have protection under the Illinois Whistleblower Act, does not make his lack of constitutional protection in these circumstances any more palatable.  Public employees should have First Amendment rights to speak in a non-disruptive way on matters of public concern without any consideration of whether there may be statutory protection for the employee.

OK, another Ceballos rant over.


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The courts are rightly trying to distinguish between public employees' normal job duties (not protected by the First Amendment) and other types of activity that may be protected. There simply is no basis for injecting the First Amemdment into what are, essentially, workplace disputes.

Posted by: joe | May 31, 2007 2:03:11 PM

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