Thursday, May 8, 2008
Paul Secunda (Mississippi for a few more days, then to Marquette) has just posted on SSRN his article (forthcoming First Amendment L. Rev.), Garcetti's Impact on the First Amendment Speech Rights of Federal Employees. Here's the abstract:
Garcetti v. Ceballos does nothing less than redefine the whole conception of what role public employees should play in ensuring the fair and efficient administration of government services. Through its holding, the Court has now made it nearly impossible for conscientious public servants to speak out in the best interests of the public without jeopardizing their careers. Yet, if possible, the situation is even worse for federal employees.
For the uninitiated, Garcetti is the watershed public employment free speech case that drastically cuts down on public employees' First Amendment expression rights while such employees are working pursuant to their official duties. In the name of managerial prerogative, federalism, and separation of powers, it has the effect of making government less transparent, accountable, and responsive because public employees are less secure in their ability to speak out against governmental fraud, corruption, abuse, and waste, without facing retribution from their public employers.
The reason for Garcetti's magnified effect on federal employees relates to three primary factors, which include: (1) the unique administrative framework established for federal employees to vindicate their First Amendment interests under the Civil Service Reform Act of 1978 (CSRA); (2) the inexpert nature of the Merit Systems Protection Board (MSPB), the federal agency which has been delegated to hear federal employees First Amendment claims; and finally, (3) the apparent inability of the Federal Circuit Court of Appeals, the court delegated to hear appeals from the MSPB, to understand the nuances and subtleties of the Garcetti decision, given their lack of experience deciding these types of constitutional issues.
The cumulative impact of these factors is that federal employees, post-Garcetti, will primarily have to vindicate their rights to free speech in the workplace through a hodge-podge of civil service laws, grievances filed under collective bargaining agreements, and ineffective federal whistleblower statutes. When all of these fail, as they inevitably will, federal employees will have to just grin and bear the evisceration of their constitutional rights and stay silent at work. Collectively as citizens, we are all the poorer for tolerating this undemocratic state of affairs.
Paul's research in this area is an important addition to the literature not just on the First Amendment and employee voice but also on the issue of government accountability and efficiency. If federal employees are not protected for engaging in this sort of speech, they won't do it. And if they don't do it, the federal government can't find out what problems exist within it and cannot fix those problems.