Supreme Court Blow to Municipal Employee Dissent

Yesterday, the Supreme Court delivered a blow to municipal government employee rights in its decision in Garcetti et al v. Ceballos.

Essentially, Justice Kennedy, for the majority of five, decided to limit the 1968 Pickering balancing test (between the interests of the employee as citizen in commenting on matters of public concern, and the interests of the State as employer in promoting efficiency of public services) to cases where the employee's speech is not done pursuant to their official responsibilities.

In this case, a deputy district attorney for Los Angeles, in a memo to his supervisors, questioned the validity of an affidavit police used to obtain a crucial search warrant. For this and other, related actions, he was transferred and not given a promotion.

What this decision does is to encourage government employees to bypass the responsible method of first making one's grievances known to supervisors up the line before going public with criticism.

What Ceballos did was the first step in what, if not responded to, becomes whistle-blowing. At a time when municipal governments are just starting to see the value in encouraging dissent within the government, so that ethical problems can be dealt with before they become serious, the Supreme Court has allowed a government agency to retaliate against an employee for just this sort of responsible behavior.

The majority decision acknowledges this and encourages governments to promulgate rules encouraging internal dissent, but governments that don't really want to encourage dissent now have no reason to do this. They are in a position of strength, knowing that employees will be frightened off from dissenting, knowing that they are putting their jobs on the line.

Under the Pickering balancing test, Ceballos would have won easily, because his memo caused no disruption or inefficiency in the provision of public services, and his grievance had nothing to do with the job, but with what he considered serious errors in an affidavit used by the police.

Justice Souter, in his dissenting opinion, pointed out the absurdity of the majority decision. In the Givhan case, where a teacher complained about racist hiring practices at school (and it was determined that her employer's retaliation was not warranted), a personnel officer could not have safely complained about these same practices in an internal memo.

I believe that public employees are, as Michael Walzer has called them, "citizens in lieu of the rest of us." They not only should be allowed to criticize and present grievances with respect to public policy, it is their responsibility, since they are the ones in the best position to know the facts and understand the circumstances and the relevant rules and laws.

There is a silver lining to the Ceballos decision: municipalities need to make it clear, through formal regulations and the creation of dissent channels, that dissenting opinions of their employees and officials are not only acceptable, but encouraged and protected. Only formal regulations and processes will allow municipal employees to do their jobs in accordance with the public interest.

This is exactly the kind of problem ethics codes that take the form of laws cannot handle. And yet it is an important ethical problem, because respect and personal autonomy are central to government ethics, as is the embracing of regime values such as openness and free, healthy deliberation of issues.

In addition, the suppression of alternative views involves a conflict of interest: between a high-ranking official's partisan or personal desire to prevent such views from being expressed and the public's interest in having all reasonable views expressed and debated.

Aspirational codes, such as the ASPA's code, make it clear that encouraging and participating in dissent are important duties of public administrators. But this is not enough to provide the protection of such administrators, and internal dissent is generally not protected by whistle-blower laws. Internal dissent requires both new regulations (e.g., the creation of forms that include a section for dissenting opinions) and an atmosphere of openness (e.g., actually responding to dissent, including changing one's mind sometimes).

It is always easier to deal with the dissenter (as "disloyal") than with the object of dissent (alternative viewpoints). This goes for employees as well as for citizens. It is an abuse of government power, and against the public interest, to retaliate against either employee or citizen for honestly expressing a contrary view. The Supreme Court has sadly made it easier for government power to be abused and the public interest to give way to the personal or political interests of high-ranking government administrators.

Robert Wechsler
Director of Research-Retired
City Ethics, Inc.