[House Hearing, 109 Congress]
[From the U.S. Government Publishing Office]
WHAT PRICE FREE SPEECH? WHISTLEBLOWERS AND THE CEBALLOS DECISION
=======================================================================
HEARING
before the
COMMITTEE ON
GOVERNMENT REFORM
HOUSE OF REPRESENTATIVES
ONE HUNDRED NINTH CONGRESS
SECOND SESSION
__________
JUNE 29, 2006
__________
Serial No. 109-161
__________
Printed for the use of the Committee on Government Reform
Available via the World Wide Web: http://www.gpoaccess.gov/congress/
index.html
http://www.house.gov/reform
______
U.S. GOVERNMENT PRINTING OFFICE
28-966 WASHINGTON : 2007
_____________________________________________________________________________
For Sale by the Superintendent of Documents, U.S. Government Printing Office
Internet: bookstore.gpo.gov Phone: toll free (866) 512-1800; (202) 512�091800
Fax: (202) 512�092250 Mail: Stop SSOP, Washington, DC 20402�090001
COMMITTEE ON GOVERNMENT REFORM
TOM DAVIS, Virginia, Chairman
CHRISTOPHER SHAYS, Connecticut HENRY A. WAXMAN, California
DAN BURTON, Indiana TOM LANTOS, California
ILEANA ROS-LEHTINEN, Florida MAJOR R. OWENS, New York
JOHN M. McHUGH, New York EDOLPHUS TOWNS, New York
JOHN L. MICA, Florida PAUL E. KANJORSKI, Pennsylvania
GIL GUTKNECHT, Minnesota CAROLYN B. MALONEY, New York
MARK E. SOUDER, Indiana ELIJAH E. CUMMINGS, Maryland
STEVEN C. LaTOURETTE, Ohio DENNIS J. KUCINICH, Ohio
TODD RUSSELL PLATTS, Pennsylvania DANNY K. DAVIS, Illinois
CHRIS CANNON, Utah WM. LACY CLAY, Missouri
JOHN J. DUNCAN, Jr., Tennessee DIANE E. WATSON, California
CANDICE S. MILLER, Michigan STEPHEN F. LYNCH, Massachusetts
MICHAEL R. TURNER, Ohio CHRIS VAN HOLLEN, Maryland
DARRELL E. ISSA, California LINDA T. SANCHEZ, California
JON C. PORTER, Nevada C.A. DUTCH RUPPERSBERGER, Maryland
KENNY MARCHANT, Texas BRIAN HIGGINS, New York
LYNN A. WESTMORELAND, Georgia ELEANOR HOLMES NORTON, District of
PATRICK T. McHENRY, North Carolina Columbia
CHARLES W. DENT, Pennsylvania ------
VIRGINIA FOXX, North Carolina BERNARD SANDERS, Vermont
JEAN SCHMIDT, Ohio (Independent)
BRIAN P. BILBRAY, California
David Marin, Staff Director
Lawrence Halloran, Deputy Staff Director
Teresa Austin, Chief Clerk
Phil Barnett, Minority Chief of Staff/Chief Counsel
C O N T E N T S
----------
Page
Hearing held on June 29, 2006.................................... 1
Statement of:
Ceballos, Richard, deputy district attorney, Los Angeles
County District Attorney's Office; William Bransford,
general counsel, Senior Executives Association; Mimi Dash,
council president, Fairfax Education Association, retired;
Lisa Soronen, staff attorney, National School Boards
Association; Barbara Atkin, deputy general counsel,
National Treasury Employees Union; Richard Bergstrom,
counsel, Morrison & Foerster; and Joseph Goldberg, American
Federation of Government Employees......................... 71
Atkin, Barbara........................................... 102
Bergstrom, Richard....................................... 115
Bransford, William....................................... 76
Ceballos, Richard........................................ 71
Dash, Mimi............................................... 83
Goldberg, Joseph......................................... 207
Soronen, Lisa............................................ 87
Kohn, Stephen M., Chair, National Whistleblowers Center; and
Roger Pilon, vice president for legal affairs, CATO
Institute.................................................. 26
Kohn, Stephen M.......................................... 26
Pilon, Roger............................................. 53
Letters, statements, etc., submitted for the record by:
Atkin, Barbara, deputy general counsel, National Treasury
Employees Union, prepared statement of..................... 104
Bergstrom, Richard, counsel, Morrison & Foerster, prepared
statement of............................................... 117
Bransford, William, general counsel, Senior Executives
Association, prepared statement of......................... 78
Ceballos, Richard, deputy district attorney, Los Angeles
County District Attorney's Office, prepared statement of... 73
Cummings, Hon. Elijah E., a Representative in Congress from
the State of Maryland, prepared statement of............... 22
Dash, Mimi, council president, Fairfax Education Association,
retired, prepared statement of............................. 85
Davis, Chairman Tom, a Representative in Congress from the
State of Virginia, prepared statement of................... 6
Goldberg, Joseph, American Federation of Government
Employees, prepared statement of........................... 208
Kohn, Stephen M., Chair, National Whistleblowers Center,
prepared statement of...................................... 28
Pilon, Roger, vice president for legal affairs, CATO
Institute, prepared statement of........................... 55
Porter, Hon. Jon C., a Representative in Congress from the
State of Nevada, prepared statement of..................... 221
Soronen, Lisa staff attorney, National School Boards
Association, prepared statement of......................... 90
Waxman, Hon. Henry A., a Representative in Congress from the
State of California, prepared statement of................. 13
WHAT PRICE FREE SPEECH? WHISTLEBLOWERS AND THE CEBALLOS DECISION
----------
THURSDAY, JUNE 29, 2006
House of Representatives,
Committee on Government Reform,
Washington, DC.
The committee met, pursuant to notice, at 11:51 a.m., in
room 2154, Rayburn House Office Building, Hon. Tom Davis
(chairman of the committee) presiding.
Present: Representatives Tom Davis, Shays, Platts, Issa,
Dent, Schmidt, Waxman, Maloney, Cummings, Kucinich, Clay,
Watson, Van Hollen, Ruppersberger, and Norton.
Staff present: Keith Ausbrook, chief counsel; Jim Moore and
A. Brooke Bennett, counsels; Rob White, communications
director; Andrea LeBlanc, deputy director of communications;
Teresa Austin, chief clerk; Sarah D'Orsie, deputy clerk; Phil
Barnett, minority staff director/chief counsel; Kristin
Amerling, minority general counsel; Michelle Ash, minority
chief legislative counsel; Margaret Daum and Kim Trinca,
minority counsels; David Rapallo, minority chief investigative
counsel; Shaun Garrison and Mark Stephenson, minority
professional staff members; Earley Green, minority chief clerk;
and Jean Gosa, minority assistant clerk.
Chairman Tom Davis. The committee will come to order.
Before we begin the hearing, I want to ask Mr. Shays and
Mr. Waxman to join me in putting an important matter on the
record.
Mr. Shays.
Mr. Shays. Thank you, Mr. Chairman. Because this is a
hearing about whistleblower rights, I want to put on the record
that Mr. Waxman and I have requested that the chairman issue a
subpoena to the Department of Defense for information about Abu
Ghraib Prison and allegations of retaliation against Specialist
Samuel Provance. Specialist Provance was stationed at the
prison in Iraq, and he testified before the National Security
Subcommittee about his efforts to report what he had heard
about abuses there. I want to thank you, Mr. Chairman, for
agreeing to our subpoena request.
On March 7th, Mr. Waxman and I sent a letter to DOD
regarding this matter to Secretary Rumsfeld and Director Goss,
and another separate, different, letter just to Secretary
Rumsfeld. I ask unanimous consent that both letters be made
part of this hearing record.
Chairman Tom Davis. Without objection.
Mr. Shays. We asked for a response by April 21st. Staff has
repeatedly called, but to date we have no meaningful engagement
from the Department on the subcommittee's request.
Recently we learned the House Armed Services Committee has
one of the unredacted documents requested, and we appreciate
their help and look forward to their support going forward. But
it is critical that our oversight inquiry is being taken
seriously by executive branch departments, and that we get
timely access to the information we need to do our job.
So again, I thank you. I appreciate, Mr. Chairman, your
willingness to proceed in this effort and help us with our
oversight. And, obviously, I thank Mr. Waxman for his patience
in a request that we both think is meritorious and deserves to
be responded to.
Chairman Tom Davis. Thank you.
Mr. Waxman.
Mr. Waxman. Mr. Chairman, I would like to thank you and
Chairman Shays for agreeing to my request to subpoena Defense
Secretary Rumsfeld. I would also like to make clear for the
record why this subpoena is now necessary.
I've been working on Sergeant Provance's case since last
fall. He first came to my attention as a result of press
reports that the U.S. Military had allegedly used the children
of detainees at Abu Ghraib in order to break the detainees
during their interrogation. But rather than investigate
Sergeant Provance's claim, the military ignored him, told him
he could be prosecuted for not coming forward sooner, and then
demoted him and pulled his security clearance. So last
December, when the National Security Subcommittee was
considering holding a hearing on national security
whistleblowers, I requested that Sergeant Provance be invited
to testify. That hearing happened on February 14th of this
year, and Sergeant Provance was able to fly back from Germany
to testify.
Sergeant Provance's testimony was gripping and disturbing.
I would like to make an excerpt of the transcript of that
hearing part of today's hearing.
Chairman Tom Davis. Without objection so ordered.
Mr. Waxman. After hearing these serious allegations, I
requested that the subcommittee send two letters to the Defense
Department requesting documents. The first letter sought
information about Sergeant Provance's subsequent claims of
abuse at Abu Ghraib, and the second about any retaliation taken
against him. Chairman Shays agreed, and on March 7th we sent
those letters with a deadline of April 21st. That deadline came
and went, and since that date the Defense Department's
responses have been absolutely deficient. The Department's
response on the abuses of Abu Ghraib have been simply
nonexistent. We asked for a host of documents ranging from
information about children at Abu Ghraib to drafts and
interview notes relating to the Fay/Jones report on detainee
abuse. We also asked for an unredacted copy of Sergeant
Provance's February testimony to our committee; it turned out
the Pentagon redacted parts of it before he testified here.
To this date and after more than 3 months, there has been
no substantive response from the Department. No documents have
been provided. To their credit, the majority staff followed up
nearly a dozen times with telephone calls and e-mails, without
success.
On the second request for documents relating to retaliation
against Sergeant Provance, the Department took an untenable and
ridiculously narrow approach to what it did provide. We asked
for a wide range of documents relating to disciplinary actions
taken against Sergeant Provance. We wanted to know why
commanders issued a written gag order only to Sergeant
Provance; how they became aware of his contacts with the media;
and the manner in which they decided to punish him for his
actions. The request included all communications, e-mails,
papers, and notes from all Department employees.
Last Tuesday, as soon as they found out we were having
today's hearing, Department officials finally responded. They
produced a total of nine documents, three of which we already
had, and three of which were identical except for the
signatures. Obviously, the response was completely inadequate.
So, again, I thank Chairman Davis and Chairman Shays for
disagreeing to this request. We worked together in a bipartisan
manner to refine the language of this subpoena, and as a
result, I hope the Pentagon will take a careful look at their
actions, go back and review the documents in an honest way and
allow us to exercise our constitutional oversight
responsibilities effectively.
Thank you, Mr. Chairman.
Chairman Tom Davis. Thank you, Mr. Waxman.
You know, when the committee requests information from the
executive branch departments and agencies, we try to be
reasonable; we try to accommodate the legitimate concerns about
the volume and sensitivity of what we're asking for. But if the
Department won't even return a call after 3 months and begin
that dialog, we really have no choice but to subpoena the
material and compel their attention to our request.
In this case, the Armed Services Committee has offered the
subcommittee access to some of the material in question, and we
appreciate their help. But the Pentagon has documents we need
to fully understand: how the soldier was treated after he tried
to report; and what he learned about prison abuse in Iraq.
I thank the gentlemen for their work on these whistleblower
issues. We're going to continue to work with them, and we're
going to get this information we need from the Department of
Defense.
I want to welcome everybody again to today's hearing on the
recent Supreme Court decision in the case Garcetti v. Ceballos.
In one sense, this case is familiar. Mr. Ceballos prepared a
memorandum about activities within the Los Angeles Police
Department and the District Attorney's Office, with which his
supervisors disagreed, and he subsequently experienced
perceived adverse employment actions. But in this case, rather
than bringing his lawsuit under statutory whistleblower
protections, Mr. Ceballos claimed that his statements should be
constitutionally protected by the first amendment.
The Supreme Court disagreed, but only just disagreed in a
5-4 decision written by Justice Kennedy. The court concluded
that Mr. Ceballos' statements were not entitled to first
amendment protections because they were made pursuant to his
official employment duties. This decision was met with some
fairly extreme headlines. For example, a New York Times
headline read, ``Some Whistleblowers Lose Free Speech
Protections''. The Washington Post reported, ``High Court's
Free Speech Ruling Favors Government: Public Workers on Duty
Not Protected.'' and the Chicago Tribune reported, ``High Court
Curbs Free Speech Rights of Public Workers on the Job.''
Maybe they have a point, but anytime the papers start
announcing wholesale rollbacks of whistleblowers' protections,
I get concerned, and so should each member of this committee.
And that is why we are here today: to understand what this case
decided, the grounds on which it was decided, and what it means
for the rights and interests of all whistleblowers, Federal and
State.
In my two terms as committee chairman, we've worked hard to
improve whistleblowers' rights. It hasn't been an easy process,
but we've made some real progress. For instance, Mr. Platts'
bill, H.R. 1317, which we passed out of this committee, grants
Federal whistleblowers an alternative course of action in the
Federal district courts nationwide if their claims of
retaliation are not adjudicated quickly. This is a truly
landmark advancement for whistleblowers.
This committee also adopted important new protections for
those exposing wrongdoing in classified programs, national
security whistleblowers. As part of our Bipartisan executive
branch Reform Act, H.R. 5112, we gave those entrusted with the
Nation's secrets meaningful recourse against subtle forms of
retaliation practiced in their closed world, like security
clearance revocation.
Whistleblowers often play an important role in exposing
government misconduct. Protecting honest, hardworking Federal
employees is important to me, and that's why the headlines I
mention are troubling.
From a practical standpoint, the decision and the reporting
that followed the decision may give whistleblowers the
impression that they're better off just taking their problems
to the press. Some people might be OK with that, but the real
goal should be the creation of a workplace environment where
employees feel free to discuss waste, fraud and abuse with
employers, and employers feel more comfortable fixing the
problem than covering it up. We need better government, not
more headlines.
We hope to learn much from today's hearing. For example,
why did Mr. Ceballos choose to raise his claim under the first
amendment? As a State employee in California, what other
avenues were available, and why were they seemingly less
attractive? How common is the workplace situation that he
faced, and does this arise in other areas of public employment,
such as education? And how similar are these experiences to
those of Federal employees?
But more than anything, it's important for whistleblowers
to know they are still protected from retaliation when they
blow the whistle and bring public attention to waste, fraud,
and abuse.
It's also important that employers have clear guidelines
delineating right and wrong behavior. We will examine whether
the Ceballos decision accomplished either goal.
In the context of government employees, disagreements about
how to do a certain job can have profound public consequences.
I'm reminded of Benjamin Franklin saying that for want of a
nail, a shoe was lost; for the want of a shoe, a horse was
lost; for the want of a horse, the rider was lost--and so on,
slain by the enemy.
The inability of government workers to express their
concerns about the smallest of issues involving their jobs--the
nails--can lead to the greatest of harms: defeat by an enemy.
We need to give appropriate protection to those workers while
allowing managers the freedom to manage.
I will now recognize the distinguished ranking member, Mr.
Waxman.
[The prepared statement of Chairman Tom Davis follows:]
[GRAPHIC] [TIFF OMITTED] T8966.001
[GRAPHIC] [TIFF OMITTED] T8966.002
[GRAPHIC] [TIFF OMITTED] T8966.003
[GRAPHIC] [TIFF OMITTED] T8966.004
[GRAPHIC] [TIFF OMITTED] T8966.005
Mr. Waxman. Thank you, Mr. Chairman.
The recent Supreme Court in Garcetti v. Ceballos raises
serious issues regarding the first amendment free speech rights
of government employees and how statutory whistleblower
protections are affected by this decision.
Mr. Ceballos was an attorney for the L.A. County District
Attorney's Office. In the course of his duties, he became aware
of significant misstatements in an affidavit used to obtain a
search warrant. He examined the affidavit, conducted an
investigation, and wrote a memorandum to his superiors
concluding that the affidavit contained serious
misrepresentations, and recommending dismissal of the case. Mr.
Ceballos' supervisors decided to proceed with the case, despite
his findings.
In the aftermath of these events, Mr. Ceballos claimed he
was subjected to a series of retaliatory employee actions,
including reassignment, transfer, and denial of promotion.
After pursuing other legal remedies, Mr. Ceballos sued his
employer for violating his first amendment rights by
retaliating against him based on his memorandum.
In its decision, the Supreme Court held that Mr. Ceballos'
first amendment rights had not been violated. It found that the
first amendment protects the speech of a government employee
when that employee is expressing an opinion as a citizen on a
matter of public concern, but because Mr. Ceballos' memorandum
was written pursuant to his duties as a prosecutor, the court
found that he was speaking as an employee, not a citizen. He
was, therefore, not protected from retaliation because the
first amendment does not prohibit managerial discipline based
on an employee's work product.
Leaving aside what Justice Stevens in his dissent called a
perverse rule, namely, one that gives employees an incentive to
voice their concerns publicly before talking to their
superiors, the court noted that government employees are
protected and would continue to be protected by Federal and
State whistleblower laws.
Unfortunately, I cannot agree with the court. The Merit
Systems Protection Board and the Federal circuit court have
issued confusing opinions on whether disclosures made in the
normal course of an employee's official duties are protected.
Government whistleblowers should be protected, and their
disclosure of waste, fraud, and abuse should be encouraged. But
under this administration and recent precedents, the current
statutory protections for Federal whistleblowers have developed
gaping loopholes. That's why new Federal legislation is so
urgently needed.
To its credit, this committee has acted twice, this
Congress, to report new whistleblower protections to the full
House. Last fall, we considered H.R. 1317, the Federal
Employees Protection of Disclosure Act. This legislation
contains a series of important reforms, including reforms that
would provide protection to whistleblowers like Mr. Ceballos
who disclose wrongdoing in the course of their employment. And
earlier this year we passed H.R. 5112, which contained
provisions providing whistleblower protections to national
security whistleblowers. For the first time, this legislation
would provide genuine remedies for these courageous employees.
The Senate has also acted on this issue. As part of this
year's defense authorization bill, it has included language
substantially similar to H.R. 1317.
Mr. Chairman, we must do all we can in the light of the
Ceballos decision to ensure that government whistleblowers are
protected from retaliation. The legislation that we have
reported is a good start, but our efforts will amount to little
if they are not taken up by the full House or included in the
final conference report.
Thank you, Mr. Chairman.
Chairman Tom Davis. I agree, Mr. Waxman. Thank you very
much.
[The prepared statement of Hon. Henry A. Waxman follows:]
[GRAPHIC] [TIFF OMITTED] T8966.006
[GRAPHIC] [TIFF OMITTED] T8966.007
[GRAPHIC] [TIFF OMITTED] T8966.008
[GRAPHIC] [TIFF OMITTED] T8966.009
[GRAPHIC] [TIFF OMITTED] T8966.010
Chairman Tom Davis. Mr. Platts.
Mr. Platts. Mr. Chairman, I yield to the gentleman from
Connecticut.
Mr. Shays. Just very briefly, Mr. Chairman--because I have
to meet someone and I'll be back--but I think this is an
extraordinarily important hearing. When an administration wants
more power, you need to make sure three things happen; one, you
have a strong Civil Liberties Board, which we don't yet have;
second you have a whistleblower process that works; and third,
that you have strong congressional oversight. We're doing the
strong congressional oversight. We need to improve the
whistleblower statute and process, and we need to improve the
Civil Liberties Board. And I thank the gentleman for yielding
to me. Thank you.
Mr. Platts. Thank you, Mr. Shays.
Mr. Chairman, I want to thank you for convening this
hearing so we have a better understanding of the Ceballos
decision and its implication for whistleblowers. I also want to
thank you for your longstanding assistance and partnership with
me as we try to shore up and expand whistleblower protections
for Federal employees who courageously expose waste, fraud, and
abuse or threats to the safety of our fellow citizens.
Last year, on September 29th, we passed out of this
committee bipartisan legislation that I had introduced, H.R.
1317, the Federal Employee Protection of Disclosures Act, to
reinforce and extend protections for Federal employees who blow
the whistle on improper actions that undermine our government.
Companion legislation in the Senate, the Senate bill 494
was approved unanimously by the Senate Committee on Homeland
Security and Governmental Affairs on May 25th. And just last
Thursday, June 22nd, Senators Akaka and Collins successfully
incorporated S. 494 into the Senate defense authorization bill.
In the Ceballos decision, the Supreme Court held that
public employees blowing the whistle in their official duties
are not protected by the first amendment. Instead, the speech
in their official capacity is protected by whistleblower rights
provided by law. In opting not to create a right under the
first amendment for whistleblowers, Ceballos emphasizes the
importance of the strength of existing protections provided by
statute.
The Ceballos decision is Congress' wake-up call, Mr.
Chairman, to strengthen whistleblower protections under the
law.
Ceballos means that statutory protections are
whistleblowers' one and only shot at due process and protection
from retaliation. The decision does not necessarily weaken
Federal whistleblower protections, but it certainly
demonstrates the importance of reinforcing current protections.
In effect, Ceballos tells us that statutory protections are
a whistleblower's last and sometimes only recourse to seek
protection from retribution. Congress, therefore, has the
responsibility to ensure that Federal whistleblower protections
are clear, strong, and without loopholes.
I'm hopeful that this hearing will attract more attention
to the importance of improving protections for whistleblowers.
It is my sincere hope also that this hearing will help us to
move quickly to floor consideration of H.R. 1317.
The Ceballos decision has sent us a clear message to
strengthen whistleblower protections, and I sincerely hope that
we listen, and, more importantly, that the House acts on H.R.
1317.
I yield back the balance of my time.
Chairman Tom Davis. Well, thank you very much.
Any other Members who have statements for the record?
Mrs.--we want to move ahead, but we'll let the Members make
brief statements. All Members will have 7 days to submit
opening statements for the record.
Ms. Watson was here first.
Ms. Watson. Thank you so much, Mr. Chairman, for holding
this important hearing that addresses issues concerning
protecting the employee rights throughout our Nation. And I
would like to thank our witnesses for their testimony.
We're here today to discuss the Garcetti v. Ceballos
decision that took place or started right in the district right
next to mine in Los Angeles and its impact on whistleblower
protection.
In our discussion we'll be working to reassure the
Americans that the principles of free speech and equal rights
for all that our Nation is built upon will be protected in the
workplace.
Whistleblower protection allows Federal employees to make
protected disclosures of government information to appropriate
parties and not face retaliation for their actions. Federal and
State employees rely heavily on the first amendment for
whistleblower protection. Our public service employees should
be able to defend themselves against retaliation for
disclosures made in the course of their official duties. We
must work to expand whistleblower protections to Federal
employees so that they have the right to work without the fear
of retaliation.
Congress must foster an environment that encourages
employees to come forward with knowledge of actions or policies
detrimental to our democratic values. This vision cannot be
realized if workers possessing crucial information are stymied
by fear of reprisal or if they are choked by inflexible rules
and regulations.
Mr. Chairman, we often forget our government is made up of
the people, people who have often chosen a career in government
because they have chosen to forego more lucrative careers to
serve their country. We must continue to recruit and retain the
best and the brightest for government service. In doing so, we
must also ensure that they will be protected from scrutiny and
embarrassment in the workplace.
I yield back.
Chairman Tom Davis. Thank you.
Ms. Norton first.
Ms. Norton. Thank you, Mr. Chairman. I very much appreciate
your not letting too much time go by after the Ceballos
decision to figure out where Federal employees stand when it
comes to whistleblowing. I certainly hope that Justice Kennedy
is right when he compares them to our own whistleblower
statutes. It's very interesting, given the first amendment
basis of the decision.
Mr. Chairman, this is really no time to allow any doubt
about whistleblower laws. When they were originally passed, the
catch words, ``fraud, waste and abuse'' I believe most
propelled them. But today I think the most important reason for
whistleblower laws really goes to the safety and security of
our country.
I want to thank you, Mr. Chairman, for working with me when
TSA employees were left out of whistleblower protection in the
Federal Employees Protection and Disclosure Act, which we are
reporting out. That was not our intent, and that's been
corrected, and, most important, considering that we're talking
about TSA employees who are the screeners.
Also in that bill, Mr. Chairman, we overturned the Federal
circuit's standard, the so-called irrefragable proof standard,
and have returned to a substantial evidence standard when it
comes to judging whether or not an employee is entitled to come
forward without retaliation.
I'm very troubled, though, that the Federal circuit
decision stood since 1999. Consider that is precisely the
September 11th period, it makes you wonder, it almost makes you
shiver, particularly when you realize that only one of I
believe 96 such decisions were found to be recognizable by the
court in that period. So you have to ask yourself whether or
not during that period there was an absolute deterrent for
whistleblowers to come forward right when I think most would
agree we needed them.
So here now comes the Supreme Court, and I am troubled. I
agree with the ranking member that this may be more serious
than we'd like to think. At least we need to clarify and get
this committee on record, as you are doing today, Mr. Chairman,
and discerning whether or not there is anything we need to do.
I understand, you know, the need to make sure that
employees do not engage in insubordination, but I can't quite
figure out this distinction between going on and speaking
publicly and doing what Ceballos did, which is write a
memorandum in normal order in order to get the attention of his
superiors before they committed what he believed to be an error
of the kind you don't want to occur in the criminal justice
system. It's very, very troublesome. Apparently, if he had gone
out and blown the whistle on them in public, that would have
been all right. Very, very hard to understand.
Above all, Mr. Chairman, I want to stress how important
protections against retaliation are. When I chaired the EOC, I
was very bothered by the practical effect of the retaliation
provision, which I understood to be absolutely necessary. The
practical effect is you will get a lot of people coming forward
with notions of one kind or another that aren't valid because
they know at the very least you can't retaliate against them.
But it seemed to me there was no way around that; that whatever
they come forward with, even if they are frivolous, retaliation
certainly is not the response that the agency would want to
send out.
And without a retaliation provision that is solid, so that
people know that if they work in TSA or in Homeland Security
they can risk saying this, if they work in the CIA, they can
risk reporting this, without that what you're going to have is
people doing more leaks, and you're going to have fewer and
fewer people coming forward in any case.
Thank you, Mr. Chairman.
Chairman Tom Davis. Thank you very much.
I have Mr. Cummings.
Mr. Cummings. Thank you very much, Mr. Chairman. I'll be
brief. I understand the time constraints, but I wanted to just
say a few words here, Mr. Chairman.
I'm all too familiar with the vital role whistleblowers
play. I'm also familiar with the compelling reasons why we
should protect them. Earlier this week, Mr. Souder and I, as
Chair and ranking member of the Subcommittee on Criminal
Justice, Drug Policy, and Human Resources, held a hearing to
examine a Government Accountability Office report on clinical
lab safety. That is every single lab, health lab associated
with hospitals in this country. I won't get into the details
here, but the GAO findings were noteworthy and uncovered
serious deficiencies in the way clinical labs across the Nation
are inspected, concluding it could not attest to the quality of
those labs. To be sure, Ms. Leslie Aaronovitz indicated that
she would not be comfortable with having her family rely on
results from any clinical lab in this country.
Clearly we must address this situation. I look forward to
working with the Centers for Medicare and Medicaid Services and
the appropriated accrediting organizations to remedy the
problems that GAO uncovered. But we would not have even known
to investigate this problem had it not been for this woman
named Kristen Turner.
Ms. Turner is what you call a whistleblower. As a clinical
technician in Maryland General Hospital in Baltimore, Ms.
Turner had been an outspoken critic of the way the hospital's
labs were run. She spoke out to supervisors, hospital
leadership, and anyone in authority about the dangers of the
professional setting in which she worked. Sadly, no one
listened. It it was not until Ms. Turner alerted the Baltimore
Sun to the horrific conditions at the Maryland General Hospital
that people's ears began to perk. And it was later discovered
that over 2,000 patients in Maryland General had gotten faulty
HIV and Hepatitis C results.
Ms. Turner paid for her efforts with her health and her
job. I'm determined to honor her sacrifice. That is why I'm
determined not to only address deficiencies in our clinical
labs, but to also protect whistleblowers in the public and
private sectors.
We are working with accrediting organizations to encourage
clinical lab workers like Ms. Turner to come forward by posting
signs with confidential hotlines and rigorously investigating
reports of wrongdoing. But the argument for protecting would-be
government whistleblowers is equally compelling. As with the
health care industry, the work of government touches the lives
of us all, and we have a vested interest in making sure it is
effective and efficient.
Congress to this point has expressed a clear priority for
protecting the rights of whistleblowers. As the Supreme Court
noted in the case of Garcetti v. Ceballos, ``The dictates of
sound judgment are reinforced by the powerful network of
legislative enactments, such as whistleblower protection laws
and labor codes available to those who seek to expose
wrongdoing.''
And with that, Mr. Chairman, I look forward to hearing from
the witnesses. And we must, we must, protect whistleblowers.
Chairman Tom Davis. Thank you.
[The prepared statement of Hon. Elijah E. Cummings
follows:]
[GRAPHIC] [TIFF OMITTED] T8966.011
[GRAPHIC] [TIFF OMITTED] T8966.012
Chairman Tom Davis. Mrs. Maloney.
Mrs. Maloney. Thank you, Mr. Chairman and ranking member.
I think one thing we can all agree on is that the current
system is broken and whistleblowers are simply not being
protected. The recent Supreme Court decision raises even more
questions about who we are going to protect; the whistleblower
or the wrongdoer?
I anticipate that we will hear a great deal of commentary
today arguing that the reaction to this decision has been
overblown and that this case did not strip employees of
whistleblower rights. While the impact of the decision may be
arguable, the message to potential whistleblowers is loud and
clear: Speak out at your own risk.
Too often our system retaliates against whistleblowers
rather than thanking them for standing up for what they believe
is right. This committee has heard from many of them, including
Sibel Edmonds, the former FBI translator who was fired for
raising questions about the way the FBI was translating
important information about our Nation's security. Her reward
for raising these issues included having her security clearance
stripped, being fired from her job, and being forced to endure
a year-long court battle that has prevented her from having any
normal life. Things are so bad with her case that when she
testified before this committee, she literally could not tell
us anything about her herself, where she was born or what
languages she speaks; and sadly, she is not an exception.
We have moved forward with legislation such as H.R. 1317,
the Federal Employee Protection of Disclosure Act, that would
protect government whistleblowers. But similar legislation
failed last Congress, and by all accounts there is strong
opposition by the Bush administration to these protections.
I have teamed up with Congressman Ed Markey and others to
introduce H.R. 4925, the Paul Revere Freedom to Warn Act. Our
legislation would provide the same whistleblower protections
that Congress provided to those reporting accounting fraud in
the Sarbanes-Oxley Act to all Federal employees, contractors,
subcontractors or corporate employees. Passage of either of
these bills will send a strong message to whistleblowers that
we care, and that they will be protected when they raise
serious issues of wrongdoing. Not only is this the right thing
to do, we will be a better and safer Nation for it.
And I would like to be associated with the comments of my
colleagues on this side of the aisle that raised many important
issues, including the fact that, with the way it is now,
whistleblowers are not going to come forward; they're not going
to speak out because they see that those who do speak out are
retaliated against.
I thank the chairman for holding this hearing. I yield back
my time.
Chairman Tom Davis. Thank you.
Mr. Kucinich.
Mr. Kucinich. Thank you very much, Mr. Chairman. Welcome to
the witnesses, and especially Mr. Ceballos.
In Mr. Ceballos' case, the court found that his speech as
an employee--which represented his work product--was not
protected from managerial discipline under the first amendment.
The court determined that Mr. Ceballos was speaking as an
employee, not as a citizen.
My own personal view is that Mr. Ceballos was speaking to
public interest. However, in alerting his superiors and the
defense counsel that the affidavit had serious
misrepresentations and that the case should be dismissed, in
the matter of public interest, there should be protections for
employees like Mr. Ceballos, but since it was ruled that the
first amendment didn't protect him, then he wasn't protected.
This precedent does everyone a disservice.
The Ceballos majority of the court advised Federal
Government workers to rely on Federal whistleblower laws, but
current whistleblower protections are limited, and Federal
whistleblowers may have no protection against retaliation for
disclosures made as part of their official duties.
Under current law, the Federal Circuit Court of Appeals has
exclusive jurisdiction over whistleblower cases appealed from
the Merit Systems Protection Board ruling, yet the Federal
Circuit excludes most whistleblower claims, including
disclosures made in the course of an employee's official
duties.
The Ceballos decision leaves Federal employees without a
remedy against retaliation for disclosures made in the course
of their official duties.
Furthermore, the Ceballos decision also sets a precedent
for State government employees who relied on the first
amendment for whistleblower protections. While most States have
enacted some form of whistleblower protections, these laws vary
widely. The first amendment has been the most solid protection
from retaliation against whistleblowers, and in States without
whistleblower laws, the first amendment has been the only
protection for State government employees who have disclosed
information in the course of their official duties. Such
employees no longer have that protection.
A government employee who makes a decision to risk his or
her career of future promotions and pay raises to report
information about government wrongdoing, and does so in the
interest of public welfare, deserves a medal. Instead, he or
she is subject to job termination, demotion, harassment and
other disincentives to continue working. It is up to all of us
to protect these employees and their disclosures which benefit
us all.
I believe this hearing will illustrate to us all the
desperate need for stronger legislation to close the loopholes
in our whistleblower protection laws. These basic protections
should be applicable to all Federal employees and all Federal
contractors across the board.
Mr. Chairman and Ranking Member Waxman, your work on this
committee is so important in furthering whistleblower
protection, it's time that Congress stood up for people who are
standing up for the public interest. I want to salute everyone
who has ever taken a chance in protecting the public interest,
everyone who ever knew there was a risk in disclosing something
that was otherwise hush-hush. These are the people who make
America a great Nation.
Thank you.
Chairman Tom Davis. Well, thank you all very much. I
appreciate everybody's comments. Again, Members will have 7
days to submit opening statements for the record.
Our first panelists here are Stephen Kohn, who is the Chair
of the National Whistleblower Center; and Roger Pilon, who is
the vice president for legal affairs at the CATO Institute. We
appreciate you being with us and being patient through the
opening statements.
If you would just rise with me and raise your right hands.
The policy is we swear witnesses in.
[Witnesses sworn.]
Chairman Davis. Your entire statements are in the record. I
read them both last evening.
You have a light in front of you that turns green when you
start, orange after 4 minutes, red after 5. We try to keep as
close to time as we can, but I want to make sure you get your
salient points out.
Mr. Kohn, we will start with you, and then Mr. Pilon, and
then we'll go to questions.
STATEMENTS OF STEPHEN M. KOHN, CHAIR, NATIONAL WHISTLEBLOWERS
CENTER; AND ROGER PILON, VICE PRESIDENT FOR LEGAL AFFAIRS, CATO
INSTITUTE
STATEMENT OF STEPHEN M. KOHN
Mr. Kohn. Thank you very much, Chairman Davis, members of
the committee, for this opportunity.
The Garcetti decision places every honest government worker
in the United States of America at risk for retaliation simply
because they didn't hire a lawyer and filed their concerns with
the wrong person; and under Garcetti, the wrong person is their
own boss. It turns whistleblower rights on their head.
Sitting over toward my right are three persons I've had the
honor of representing, or have represented: Sibel Edmonds--
you've heard a little bit of her, she exposed security
deficiencies at the FBI; Dr. Jonathan Fishbein, who exposed
life-threatening drug safety practices at the NIH; Bunnatine
Greenhouse, who was the first to document contract violations
in the war with Iraq that have hurt taxpayers and small
businesses.
Each of these whistleblowers, dismayed, learned of the
problems through their official duties. Each went initially
through their chain of command. Had the Garcetti decision been
law, the results of their conduct would be radically different.
I'll give you an example in Mrs. Greenhouse's case. When
she wrote on the contract ``violation of procedure,'' the Army
Corps didn't know about Garcetti; so they said, you didn't have
the authority to write on that contract; we're going to demote
you. Had they known about Garcetti, they would have been a
little smarter. They would have said, ``Great, Bunni, we loved
your comments on the contract. That's part of our official
duties. High five. By the way, you're fired.'' And she would
have absolutely no protections, either under the Whistleblower
Protection Act or the first amendment.
Garcetti is so illogical that under the first amendment a
person who burns the American flag has more constitutional
protections than someone who exposes a bribe, reports that the
space shuttle may blow up, or does their best to get a FISA
warrant on a suspected terrorist that just may want to learn
how to fly airplanes but not land them. It turns the whole
process on its head.
Justice Kennedy, in a sense to justify the decision, said
there is a--in his words a, ``powerful network of whistleblower
laws.'' We've evaluated that powerful network. If you would
look at chart No. 1, you will see that 58 percent of the States
do not protect internal official-duty whistleblowers who lost
protection under Garcetti; 58 percent, no protection.
If you look at chart 2, what you will see is this
protection afforded in the 42 percent of the States that do
afford protection is far weaker than the protection under the
first amendment. In fact, 95 percent of the States which would
protect a Garcetti-type whistleblower, they're weaker
protections.
The first amendment was implemented by a law known as 42
U.S.C. 1983, which for years was viewed as the best safety-net
whistleblower law in the United States. It is not anymore.
But what is the practical impact? You may ask, so what if
they can't be an official-duty whistleblower or report
internally. I've been doing whistleblower cases for 22 years
and almost every whistleblower starts internally.
We'll have time for one last chart, which is a summary of
the last 50 cases in which an employee used 42 U.S.C. 1983
successfully. They're cases with merit. And you will see 86
percent were internal official duty, and only 14 percent were
so frustrated as to go outside of the system. The Garcetti
decision, there is no safety net. It is Congress that must act
to fix the problem.
We have made a very simple proposal to the committee, one
page that will fix the problem. Thank you very much.
Chairman Tom Davis. Thank you very much.
[The prepared statement of Mr. Kohn follows:]
[GRAPHIC] [TIFF OMITTED] T8966.013
[GRAPHIC] [TIFF OMITTED] T8966.014
[GRAPHIC] [TIFF OMITTED] T8966.015
[GRAPHIC] [TIFF OMITTED] T8966.016
[GRAPHIC] [TIFF OMITTED] T8966.017
[GRAPHIC] [TIFF OMITTED] T8966.018
[GRAPHIC] [TIFF OMITTED] T8966.019
[GRAPHIC] [TIFF OMITTED] T8966.020
[GRAPHIC] [TIFF OMITTED] T8966.021
[GRAPHIC] [TIFF OMITTED] T8966.022
[GRAPHIC] [TIFF OMITTED] T8966.023
[GRAPHIC] [TIFF OMITTED] T8966.024
[GRAPHIC] [TIFF OMITTED] T8966.025
[GRAPHIC] [TIFF OMITTED] T8966.026
[GRAPHIC] [TIFF OMITTED] T8966.027
[GRAPHIC] [TIFF OMITTED] T8966.028
[GRAPHIC] [TIFF OMITTED] T8966.029
[GRAPHIC] [TIFF OMITTED] T8966.030
[GRAPHIC] [TIFF OMITTED] T8966.031
[GRAPHIC] [TIFF OMITTED] T8966.032
[GRAPHIC] [TIFF OMITTED] T8966.033
[GRAPHIC] [TIFF OMITTED] T8966.034
[GRAPHIC] [TIFF OMITTED] T8966.035
[GRAPHIC] [TIFF OMITTED] T8966.036
[GRAPHIC] [TIFF OMITTED] T8966.037
Chairman Tom Davis. Mr. Pilon.
STATEMENT OF ROGER PILON
Mr. Pilon. Yes, thank you, Mr. Chairman, and thank you for
the invitation to be here this morning.
After listening to my colleague and listening to the
opening statements, I feel I need to start a little differently
than I had originally planned to do. My prepared testimony, if
you have had a chance to read it, I think is a rather even-
handed treatment of the case.
I will open by saying that the whistleblower issue is very
serious, and there are doubtless many, many very important
credible whistleblowers out there who are not getting their
just day in court. At the same time, we also know there is
another side to the matter; and that is, having served at the
Office of Personnel Management I've seen it, many
whistleblowers are approaching the bodies, either
administrative or judicial, with less than meritorious cases.
So we have a balance that we need to strike between the
needs of management to run government efficiently on the one
hand, and the needs of whistleblowers to bring to the attention
of the public things that need to be brought to their
attention.
And so let me turn now to your invitation, Mr. Chairman.
You raised three concerns in that letter:
No. 1, to help us understand the Ceballos case, I will tell
you it is not the easiest case in the world to understand. I'll
try to make some sense of it this morning.
Second, what effect it has on the statutes. I do not see it
as having had any effect whatsoever on the statutory
protections, and therefore it seems to me--and this was your
third concern, the press reports. It seems to me they were
overblown and should be noted as such.
Now, let me turn to the case itself. The ruling that came
out of the case was one whereby if an employee is speaking
pursuant to his official duties, then he is not speaking as a
citizen and therefore has no first amendment protection. By
contrast, if he is speaking as a citizen, then possibly he has
a first amendment protection if it does not interfere too much
with the operations of government that he is there to carry
out. That in a nutshell is what the majority held.
The dissent criticized the majority mainly because it had
put forth a categorical distinction between speaking as a
citizen and speaking as an employee. And it seems to me, that
criticism is well founded. What we have in many cases is mixed
cases, whereby a citizen--rather, an employee is speaking
within the framework of his official duties as an employee, and
yet is also speaking as a citizen. And it seems to me the
Ceballos case was a perfect example of that.
Indeed Justice Souter in his dissent brought that out. And
I suspect that the best opinion in the whole series of opinions
was that by Justice Breyer, who saw this as indeed a mixed
case.
Now, the problem when you get into the kind of standard
that was put forward by Justice Souter is that it involves the
court in making all kinds of policy and value judgments, which
courts are not ordinarily prone to do. For example, he said
that the employee should prevail--should not prevail, unless he
speaks on a matter of unusual importance, satisfies high
standards of responsibility in the way he does it; and he
listed such categories as health and safety, deliberately
unconstitutional action, serious wrongdoing and the like. In
other words, what you've got now is a call for the court to be
ultimately exercising its discretion. And so at the end of the
day we've got to ask the question: Who is going to ultimately
have the discretion in these matters? Is management going to
have the discretion, or is the court going to have the
discretion? And what you want to avoid is having a situation
whereby all of these cases--and, of course, there are in
principle many, many cases that do not end up in the Federal
courts to be adjudicated there, or the courts will be swamped
with them.
So it seems to me that the best way to go about this,
because the first amendment can get you only so far in
adjudicating these matters as a matter of principle, where you
need to go is with statutory remedies. And as Justice Souter
brought out, there are some serious problems--and Mr. Kohn did
as well--with the statutory remedies that are out there and are
available. That is, of course, a subject for the next panel to
address.
We all want these disputes to come out right, but at some
point some party is going to have to have the discretion. And
the question, it seems to me, for this committee is where are
you going to leave that discretion, with the management, or are
you going to leave it with the court? Thank you.
Chairman Tom Davis. Well, thank you very much.
[The prepared statement of Mr. Pilon follows:]
[GRAPHIC] [TIFF OMITTED] T8966.038
[GRAPHIC] [TIFF OMITTED] T8966.039
[GRAPHIC] [TIFF OMITTED] T8966.040
[GRAPHIC] [TIFF OMITTED] T8966.041
[GRAPHIC] [TIFF OMITTED] T8966.042
[GRAPHIC] [TIFF OMITTED] T8966.043
Chairman Tom Davis. Mr. Kohn, you're fairly unequivocal,
and you believe that the Ceballos decision was wrongly decided.
But just playing devil's advocate for a minute, if the court
had gone the other way, wouldn't it have given employees the
ability to challenge any and all decisions by their superiors
without repercussions? What are the limits?
Mr. Kohn. Absolutely not. Essentially the law that the
Garcetti case reversed was the law followed by almost all
courts for almost 30 years, and it is a very simple standard:
Is the speech of a matter of public concern? Pure workplace
grievances have no constitutional protection, and if it was
speech of a matter of public concern, it could be rated high
public concern, low public concern.
To the second part of the test, which was a balancing test,
the interest in the speech versus the interest in efficiency of
government. And that was the test applied in courts pretty much
uniformly, with a couple of outliners, for 30 years. It worked
pretty well. So it wasn't some type of free speech right for
employees on anything; it had to be a matter of public concern.
Chairman Tom Davis. OK. We have a lot of discussions here
on policy issues, where you come out. And every employee who
has a grievance, who has gotten their 2 cents in at the table
but didn't get their way, could go out front and that would be
very inefficient, wouldn't it?
Mr. Kohn. It would. But there is a second part of the test.
Chairman Tom Davis. I mean, obviously waste, fraud and
abuse would be unfettered, in terms of their ability to expose
those things.
Mr. Kohn. But there was a second part, and the courts dealt
with this. The first issue is was the speech even protected.
But even if it was, you could still fire any employee, if you
would have fired an employee who hadn't engaged in that same
type of speech for the same thing. There was no immunity here.
So if an employee was incompetent, if an employee showed up
late, even if the employee's speech was outrageous in the sense
that he pulled out a bull horn in the middle of the workplace,
they could be fired. So there was no insurance policy here.
They could discipline employees, and they had legitimate
controls over what was a matter of public concern.
What occurs here is that employees' rights are cutoff at
the start. They could be the best employee in the office, and,
simply for writing a memo exposing a serious issue of
misconduct that the supervisor wanted to keep hidden, they're
fired. And under this decision they're out.
Chairman Tom Davis. Even if they keep it in house?
Mr. Kohn. Absolutely. If they keep it in house, they are
totally out. If they didn't write that memo to their
supervisor, stabbed the supervisor in the back, went running to
the press and called a press conference, they're protected.
Chairman Tom Davis. And that's a bad decision, if that's
where it comes down.
Mr. Pilon, do you agree with that?
Mr. Pilon. Well, he said quite a bit so.
Chairman Tom Davis. I mean, just talking about it depends--
obviously if you write a memorandum to your employer, this is
something that comes across your desk, you feel it is--
something is wrong--and you write that memorandum to your
employee, you keep it in house; what is the problem?
Mr. Pilon. I don't know that the court has given us an
answer to that, frankly, and that's part of the problem. I
would respond, however, to this idea of a matter of public
concern, which I assume you are talking about the Pickering
standard before that.
The problem there is it still is a difficult line to draw.
I mean go from waste, fraud, and abuse on the one hand to a
simple employee grievance on the other hand. The employee
grievance could itself be a matter of public concern if indeed
the resolution of it serves as a precedent for future employee
grievance resolutions. And so it is very hard to know whether
something is going to be of a matter of public concern or not.
Again, there just are not bright lines here, and we are far
better off trying to, it seems to me, address these
statutorily, and probably with different statutes pertaining,
to say the CIA employee on the one hand versus someone at HHS
on the other hand. Because they are very different venues.
Chairman Tom Davis. Well, even the public concern issue,
which is--I guess could be litigated through time--how do you
balance the State's interest in promoting workplace efficiency?
That's a line that seems very difficult to draw.
Let me ask you this, Mr. Pilon. It seems the key issue is
this notion of ``pursuant to their job description'' that the
court used in Ceballos. Do you think this is now what will be
litigated, and how do you think this will come out?
Mr. Pilon. Yes, it will. And Justice Souter brought out the
point that now we are going to see litigation over this fact-
bound issue of whatever it is. Moreover, there is the
speculation that he put forward in the opinion that we will now
take the PD's position description and expand the duties under
it and so that everything becomes a matter of activities
pursuant to your official duties.
Chairman Tom Davis. But I think you both make the point,
this begs the statutory solution.
Mr. Pilon. Absolutely.
Chairman Tom Davis. OK. Mr. Waxman.
Mr. Waxman. Thank you, Mr. Chairman. I want to thank both
of you for your testimony. Congress and the American people
rely on whistleblowers to disclose unlawful activities, waste
and abuse, and this committee has learned that instead of being
rewarded for this patriotism, government workers face the loss
of jobs, livelihood, and reputations. That's what we are trying
to deal with, how we can encourage people to come forward
without facing sanctions for doing it. And now more than ever,
we need whistleblowers to do what we want them to do, to come
forward and expose problems within the government.
The Federal courts seem to be steadily eating away at the
whistleblower protections. As a practical matter, the Ceballos
decision leaves whistleblowers with no recourse against
harassment, job loss, and other retaliation.
Do you, Mr. Kohn, think that this will have a chilling
effect on government employees? Are they going to be fearful as
a result of this decision?
Mr. Kohn. There is absolutely no doubt that decision has
already had a chilling effect given the type of communications
my office has seen. It clearly will. But I'll tell you where
the chilling effect--when it will really come in is when you
have a workplace and someone actually gets fired or demoted,
legally. To understand Ceballos, watch the--we have seen this
in other areas of the law in which Congress amended the
statutes to protect the internal whistleblowers, like the
Atomic Energy Act, where one court said oh, you can't go
internal. Once you fire someone, you will have such a chilling
effect. And if you look at the examples of the three
whistleblowers I gave coming in here, what was discovered in
the investigations of each of their cases is that those offices
had major problems. Those offices had a motive for trying to
silence the internal whistleblower. And it will be precisely
the dysfunctional or the corrupt office that will benefit from
this decision; whereas, if you have an office that's honest and
open but those employees are afraid to fully communicate, the
honest office will be penalized. The chilling effect will have
terrible consequences, both for honest workplaces and
benefiting dishonest workplaces.
Mr. Waxman. Do you think we need a statutory change? Have
you had a chance to review the proposals that have come out of
this committee with regard to whistleblower protection?
Mr. Kohn. I have. And I salute the efforts to reform the
Whistleblower Protection Act.
That amendment being proposed would partially overturn
Ceballos under that law. But it doesn't fully do it and it
doesn't cover the vast majority of employees who have lost
their rights, which is all State and local and Federal
employees not covered under WPA.
Also we have used the first amendment very effectively for
all Federal employees. And those rights cannot be restored by
the WPA amendment. We have proposed a very simple law. It
essentially takes a definition of protected activity that's
very established, partially from the Sarbanes-Oxley Act and
partially from the general laws. It gives a procedural remedy
that's realistic, the precise procedural remedy that this
Congress gave to employees of the NRC and the Department of
Energy this term, and it defines employees consistent with
Title 7. If you can file a claim for race, sex, or age
discrimination, let your employee file a claim for
whistleblower protection.
Those three simple steps would cover and protect this
loophole in 99 percent or more of every American workplace
across the country.
Mr. Waxman. Mr. Pilon, do you--you think we needed
statutory changes as well? What would you recommend we do in
terms of the statute?
Mr. Pilon. One of the things it seems to me that you need
to address at the outset, is where did the presumptions lie and
who has the burden of proof. You look at Justice Souter in
dissent, and he offered one proposal; but it is pretty heavily
on the government side, interestingly. He spoke of the
government's legitimate authority, and that before an employee
could overcome it, he would have to have a complaint that had a
certain minimum heft--his words. I don't know what that
language translates out to in any given situation.
Again, so many of these issues are so difficult to deal
with, because, as the majority said, they are so fact-
dependent. You can lay out some general principles, but once
you get beyond that, you are dealing with facts, situations,
which vary enormously. And if the court cannot address these
because the first amendment is simply too sparse to do it, it
may be that Congress is going to be limited as well, because
there is so much you can write in the way of statutes that are
going to address every agency running from the CIA on the one
hand to an ordinary nonintelligence-related office on the other
hand.
Mr. Waxman. Thank you.
Chairman Tom Davis. Thank you. Mr. Dent, any questions?
Mr. Dent. Thank you. Mr. Chairman.
To both panelists, at what point did Mr. Ceballos'
activities qualify as part of his job description? When he
answered the phone call from the defense counsel or when he
went to the site during working hours? Can you give me some
insights, sir?
Mr. Pilon. Well, I'll start with that. It seems to me that
all that he was doing was part of his job description. And it
was with--all of it was with matters of public interest.
If anything, this was as clear a mixed case as you could
find. I mean, we don't want sheriffs issuing false affidavits
in order to obtain a warrant, assuming the facts are as they
are reported in the case. We have to assume that because it was
up on summary judgment motion.
So I think everything that he was involved in was related
to his job description.
Mr. Kohn. And yes, Mr. Dent, I think your question actually
exposes one of the gravest deficiencies in the decision, which
is what will occur now is endless, useless litigation on what
is in or out of a position description and that I mean--and
that's going to be carried on for years in summary judgment
motion litigation. The Supreme Court found that his writing
that memo exposing potential perjury, a misrepresentation in
sworn testimony, was part of his duties and he lost protection
for his memorandum.
But what is going to happen now is employees will look at
their position description, employers will look, and it's going
to go on and on.
Mr. Dent. I guess as a followup then, how could Mr.
Ceballos have done the same type of followup investigation,
made the same recommendation, without having it fall within his
job description?
Mr. Kohn. And it is, again, kind of the absurdity of the
decision. Had he not written his memo, but had he written a
press release and issued it to the Los Angeles Times, he would
have been protected under the first amendment.
When employers would want employees to be encouraged to do
that without working things out, it makes no sense. But in
reality, since most whistleblowers, 99 percent, try to work
things out through the chain of command, most won't issue a
press release at the first drop of an issue. It is going to
have--that's the devastating impact of the decision. But the
illogical side of it is why encourage employees to write press
releases?
Mr. Pilon. I don't see the opinion that way. I don't see it
as saying if he had gone with a press release, he would have
been protected under the first amendment. I still think that he
would have been subject to internal discipline if he had taken
perhaps even more discipline.
Mr. Dent. Thank you, Mr. Chairman. I yield back.
Chairman Tom Davis. Thank you very much.
Ms. Watson.
Ms. Watson. My question to Mr. Kohn: Should Mr. Ceballos
have quit first and then gone to the press?
Mr. Kohn. Absolutely not. That would reverse employment law
back 100 years.
Ms. Watson. No. My question goes to whether he would have
been covered by whistleblower protections?
Mr. Kohn. If he had quit?
Ms. Watson. Yeah.
Mr. Kohn. If he had quit, the whistleblower protections
would be irrelevant because he quit his job. He won't get it
back.
Ms. Watson. Well, what I am going to is that, as an
employee doing what he had the authority to do, he made a
recommendation, and apparently he was punished for doing his
job. What would bring him under the protections as an employee?
And the only thing I can figure out from what the two of you
have said is he would have to become a citizen.
Mr. Kohn. He could keep his job, but he would have to blow
the whistle publicly. In fact, the Supreme Court remanded the
case because he also testified in court and the court testimony
could be protected under the first amendment. He also spoke, I
believe, like at a Bar Association meeting. That public speech
could be protected. So there is actually going to be a remand
to see whether he actually went outside of his chain of command
and whether that was protected.
The problem with the decision, if you look at the
statistics, about 85 percent of whistleblowers never go beyond
the chain of command, and there they will be the ones who will
lose their cases. Some do go outside the chain of command, and
they still will be protected.
Ms. Watson. Well, my great interest here is protecting
people who are responsible, and from what I can gather by just
a cursory review of what we have here, is that he was doing his
job. As a public concern, they are getting ready to prosecute
somebody based on the wrong methods of--and maybe false, I
don't know--but how could we correct that? And you said you had
something that----
Mr. Kohn. It is very simple language that was put into
Sarbanes-Oxley. It actually comes from the Atomic Energy Act.
It has been applied to some Federal employees already, and it
says a ``report to a supervisor or a person with the authority
to correct the problem.'' That's it. It is as simple as that.
Ms. Watson. Then that person would be protected.
Mr. Kohn. That's right. If the employee reports it to their
supervisor or----
Ms. Watson. Once they took that step.
Mr. Kohn. Then they are protected. And that exists in the
law, and that's actually the judicial interpretation that's
given to most whistleblower laws--Federal--until this decision,
and it has worked.
Ms. Watson. OK. Thank you.
Chairman Tom Davis. Thank you. Ms. Norton.
Ms. Norton. Thank you very much, Mr. Chairman.
You know, it takes a whole lot of nerve to use the
colloquial. To stand up and disagree with agency policy. I am
very concerned about this confusing inside/outside distinction.
It seems to me that--and let me ask you first this question--
that the court didn't have much choice under prior first
amendment decisions which is allegiant on the citizen's right
to speak out. That part of the decision that it seems to me
didn't--I don't think the court would, without striking down a
whole bunch of prior authority, could have said otherwise. But
I am very confused by trying to envision an example of an
employee who might speak out as a citizen but could not speak
as--but would not be protected as an employee. I would like
both of you to offer me an example of such an employee.
Mr. Kohn. Well, we don't need to go further than Mr.
Ceballos.
Ms. Norton. I am left in total confusion by that one. So I
guess I am asking for a law school hypothetical.
Mr. Kohn. What it means is this--and this is now the law
under this case. You are an engineer working in NASA. Better
yet, you work in a security department in a police agency. Now,
there is a case on this with a public employee that was not
overturned. The President of the United States is shot. That
employee says, ``Well, maybe a better shot next time.'' Words
like that. You know, maybe we should--it is a good way to get
rid of the President.
The Supreme Court found that employee's speech protected
because it was a matter of public concern about the President.
Same employee is reviewing a security analysis of the
safety of the President of the United States of America and
finds a deficiency that might be embarrassing to their boss but
puts the President's life at risk. Reports the deficiency to
the boss. That employee can now be fired for that act.
The decision is hard to understand because it makes no
common sense. The very first court to look at this whole
distinction back in the 1970's said the only way to adjudicate
whistleblowers on internal/external is just use common sense.
This decision does not make use of common sense and therefore
it is very hard to understand.
Ms. Norton. Yes.
Mr. Pilon. I was just going to add that I fully agree that
this decision drew the line in a place that is curious, to put
it charitably. But that doesn't mean that we know where to draw
the line.
Let me flip it around just a little bit. You all have
staff. And you know that there is a problem sometimes with
disagreements with staff. And how much do you want your staff
to be at liberty to speak freely--within the office or outside
of the office--on policy differences you may have. There is a
point at which managerial control of the message is important.
And it's not easy to find how to draw that line in such a way
that you are able to keep control of your operation, just as a
manager in the government would have to, and yet allow----
Ms. Norton. Mr. Pilon, you said that you indicated in your
response to one of my colleagues, I think in your previous
response, you just said in response to my colleague here that
he would have been disciplined either way. Now, assuming in
good faith he believed that this was--this evidence was faulty,
you know, the facts of the case, what are we suggesting that he
should do if he would be disciplined either way?
Mr. Pilon. In this particular case?
Ms. Norton. Yeah.
Mr. Pilon. As I said, this particular case was wrongfully
decided.
Ms. Norton. This is not the criminal justice system and
it's very disconcerting. Perhaps I am identifying too much with
this lawyer. What does he do if he got--conducts his own
investigation, writes a memo. I mean, it is, you know, you have
to--whenever you see somebody who's done something wrong, then
you think, well, he should have done something right, if he had
only done so.
Mr. Pilon. Mr. Ceballas will be here on the next panel so
you can ask him directly.
Ms. Norton. I will ask no more questions. I will say this:
that I don't see how one can avoid--we talk about, like I said
in my opening statement, waste, fraud and abuse--I don't see
how we can continue to disparage leaks. It does seem to me that
disconcern about leaks to the New York Times, the
investigations that are now going on on all of these leaks, if
you are in one of these agencies with the confusion that we
have been having, been able to unravel so far, you do have an
alternative. You need to leak it to the press and don't tell
anybody.
Now, imagine what that means if we are talking about
somebody in the CIA or the FBI or the Homeland Security. So if
ever there is any reason to try to come to grips with this
problem, it is not, in my judgment, wrong for a waste, for an
abuse; it is the security of the United States and the safety
of the American people.
Thank you, Mr. Chairman.
Chairman Tom Davis. Thank you very much. Mr. Shays.
Mr. Shays. Thank you, gentlemen, for being here.
I happen to believe, as I said when I started, that when
you give an administration more power, you need to have
protections. You need to have strong congressional oversight.
We here can't function like a Parliament. We need to function
like a separate branch of government. No. 1.
No. 2, I believe that the Civil Liberties Board,
recommended by the 9/11 Commission as it's related to the
intelligence part of our government, needed to be established
which would set up a separate board with certain power,
couldn't be replaced by the President, Senate confirms
employees in each of our 16 classified agencies, our
intelligence agencies.
And the third is strong whistleblower protection. I'm going
to react to my limited knowledge of what I heard and read in
testimony, and I want you to react to that.
I believe it is incumbent on the Congress of the United
States to have a whistleblower protection that works in the
nonintelligence side of the equation and works on the
intelligence side of the equation. My view would be not
necessarily that the court ruled incorrectly here, because I
believe that when you work for a government, when you work for
a business, you have certain obligations to the government, to
the business. So you can't just say I have freedom of speech; I
can say any damn thing I want.
What I then conclude is that if Mr. Ceballos did not think
he had protection under the whistleblower statutes, that the
whistleblower statutes are what is at fault, not a court
decision that said he couldn't use his first amendment rights.
That's kind of where my mind is.
And can't this problem simply be solved by just making sure
we have a whistleblower statute that works? So I would ask each
of you that question.
Mr. Pilon. Well, this is one of the questions that the
chairman raised in his opening remarks that you will
undoubtedly want to put to Mr. Ceballos, namely, why is it that
he went the route of the first amendment rather than through a
statute, and it may be that there are good legal reasons for
that. I don't know what they are.
Mr. Shays. But intuitively, do you believe that we should
have a process where someone can speak out?
Mr. Pilon. Absolutely. It is all part of good government. I
mean, you put your finger right on it. On the one hand, you
have to have agencies like the FBI and the CIA talking to each
other so you don't have September 11th again. And you have to
have discipline within those agencies and this means allowing
for the free exchange of ideas so that were problems to arise,
they will be vetted.
Mr. Kohn. There absolutely must be a statutory fix. Period.
The nature and scope of that fix can be debated, but each time
a court in the past has issued this type of decision, there was
an immediate legislative process.
Mr. Shays. That's not really directly answering my
question, because the implication of your answer is that a
statutory fix that gives him his first amendment rights, and
that's not what I am saying.
I am saying, doesn't this really send the message to us
that we need to correct--first off, do you think he--let me ask
you in particular, Mr. Kohn. Do you think he had the ability to
be protected under whistleblower protections, not first
amendment protections? And second, if he didn't, is this the
issue, then, that we needed--we need to have a better
whistleblower statute?
Mr. Kohn. The statute at issue in the case, 41983, is a
very good statute. It affords a lot of protection. That's why
people use it.
Mr. Shays. You are talking about the whistleblower statute.
Mr. Kohn. This is the Federal law that gave employees the
right to have their constitutional rights protected. It is a
little complex. There was actually a statute underneath the
Ceballos decision, and they just interpret it in that way.
The core question is when I say ``a statutory fix,'' that
doesn't necessarily mean to restore your constitutional rights.
It is a statutory fix to protect your whistleblower speech
efficiency and effectively period. I don't think--I have a lot
of disagreements with the Supreme Court decision, but I don't
think it serves anyone's purpose now to re-debate it. We should
look at what you need to have a good working whistleblower law,
if it's consistent or inconsistent.
Mr. Shays. We have two laws. We have one in the
nonintelligence, one in the intelligence.
Mr. Kohn. That are being proposed.
Mr. Shays. That we have. And the one in the intelligence is
not worded properly.
Chairman Tom Davis. Mr. Cummings.
Mr. Cummings. Where is the dividing line, according to the
court, between the citizen acting and the employee acting? What
divides it? Because it seems to me that you can have a
situation where one may start out as an employee and end up as
a citizen.
Are you following what I am saying? In other words, in the
dissent, Justice--one of the justices said something about it.
There is some speech that a supervisor would not even want to
get out because maybe the supervisor is involved in the
process. Now, you know, some fraudulent action or something
that may jeopardize the focus that government is supposed to be
serving. So you have this person who starts off, I guess he's
an employee. He's talking to the supervisor. The supervisor
does not act. He keeps going up. It keeps going up. Next thing
he knows, like you said a moment ago, he's got to go to the
newspaper.
At what point, first of all, is there any consideration
under this case for the person who has to go through that
process? In other words, say for example, in a hospital where
this worker knows that people are getting faulty HIV AIDS
results and he tells the supervisor and the supervisor just
doesn't do anything. He keeps going up. Next thing you know,
you see--or he has to go to a newspaper. What happens? I mean
where is the dividing line.
Mr. Kohn. Absolutely. And it is part of the
counterintuitive part of the decision. Thirty years ago the
Supreme Court decided Pickering, which is still good law. In
Pickering, a teacher wrote a letter to the newspaper about
budgetary issues in the school that related to his classroom.
That was found to be protected free speech. He could not be
fired. That is still good law. So going to the press is still
protected activity.
Now you have another Supreme Court decision called Givhan,
and in that case an employee complained to a supervisor but it
wasn't a complaint about anything to do with their particular
job. That's still good law.
So if you don't complain about anything you are dealing
with at work, or you go to the press, you are still protected.
Who isn't? It is that worker who in the course of their
employment finds the problem and reports it reasonably through
their chain of command.
And the reason that is such a problem for whistleblower
protection, that's what 80 to 90 percent of all whistleblowers
do. So once you take this very reasonable commonsense
protection away, the net result will be most whistleblowers
will lose their case. But it is so counterintuitive that it is
illogical, and I want to say that it is new.
When President Reagan and his administration confronted
this issue when it first came up in the courts, they were--the
Solicitor, his Solicitor was on our side on this, Secretary of
Labor was on our side. Secretary of Labor Brock, President
Reagan's Secretary, here's what he said on this very issue:
Employees who have the courtesy to take their concerns first to
their employers to allow their employers a chance to correct
the violations need as much protection as those employees who
first go outside the system.
That was common sense. It must be restored by statute.
Mr. Cummings. One of the things that's so chilling about
all of this is when we see the more recent attacks on say for
example, the New York Times by the President and others because
they provide information to the public. You know, it is when
you combine this, what we are talking about here with that, the
question is where do we end up? Will we end up in a situation
where, say for example, the whistleblower, when they cannot get
results for possibly, again, the AIDS test in my district,
faulty AIDS test, and then goes to the papers, and if there is
some chilling--some kind of clamping down on the newspapers,
media, saying you can't report so-and-so and so-and-so, where
does all of that end? Where do we go?
Mr. Pilon. Could I comment on that, because the Swift
program, which you are alluding to, raises the problem that is
buried here that we haven't brought out yet; namely, what if
there are policy differences between staff and management? The
leak in this case apparently came from someone who didn't agree
with the policy. And shouldn't management have some authority
to address that problem?
Mr. Cummings. But it is a question--and then just this one
quick thing--but when you have a situation where management is
basically clamping down because management may be a part of the
problem, that's what I am getting to. So that's a whole
different case.
Mr. Pilon. That's a different case.
Mr. Kohn. You have, again, I think hit the nail on the
head. It is kind of a catch 22. If you can't complain to your
supervisor--or if you do, you lose your protection. You want to
go to the press, you have a first amendment right. But if the
information you give to the press was classified proprietary
Privacy Act violation, you can be investigated for that and
fired for improperly leaking. So essentially the net result is
confusion and opening valid whistleblowers to retaliation.
Mr. Cummings. Thank you very much, Mr. Chairman.
Chairman Tom Davis. Thank you very much. I want to thank
this panel.
What we'll do is take a 3-minute break.
[Recess.]
Chairman Tom Davis. We will now recognize our second panel.
Thank you for staying with us. Mr. Richard Ceballos is the
deputy district attorney for Los Angeles County District
Attorney's Office; Mr. William Bransford, general counsel,
Senior Executive Association; Ms. Mimi Dash, council president
of Fairfax Education Association--retired; Lisa Soronen, staff
attorney, National School Boards Association; and Miss Barbara
Atkin, who is deputy general counsel in Natural Treasury
Employees Union.
Mr. Bergstrom, are you testifying? OK. Mr. Richard
Bergstrom, the counsel for Morrison & Foerster; and Mr. Joseph
Goldberg, representing the American Federation of Government
Employees.
Thank you very much for being here. It is our policy, as
you know, that we swear you in before you testify. So if you
will raise raise your right hands.
[Witnesses sworn.]
Chairman Tom Davis. Mr. Ceballos, you started this whole
thing. We are going to start with you. And I think you know we
try to stay within our 5 minutes. Your entire statement is in
the record. So thank you very much.
STATEMENTS OF RICHARD CEBALLOS, DEPUTY DISTRICT ATTORNEY, LOS
ANGELES COUNTY DISTRICT ATTORNEY'S OFFICE; WILLIAM BRANSFORD,
GENERAL COUNSEL, SENIOR EXECUTIVES ASSOCIATION; MIMI DASH,
COUNCIL PRESIDENT, FAIRFAX EDUCATION ASSOCIATION, RETIRED; LISA
SORONEN, STAFF ATTORNEY, NATIONAL SCHOOL BOARDS ASSOCIATION;
BARBARA ATKIN, DEPUTY GENERAL COUNSEL, NATIONAL TREASURY
EMPLOYEES UNION; RICHARD BERGSTROM, COUNSEL, MORRISON &
FOERSTER; AND JOSEPH GOLDBERG, AMERICAN FEDERATION OF
GOVERNMENT EMPLOYEES
STATEMENT OF RICHARD CEBALLOS
Mr. Ceballos. Good afternoon, Mr. Chairman, members of the
committee. Thank you for inviting me to speak today.
Simply because I passed through the doors of my government
employer to serve the public does not mean that I should be
stripped of my rights as a citizen. Unfortunately, under the
recent Supreme Court decision, I think this is what has
happened. And while I was on the losing end of the Supreme
Court decision, I wasn't the only one that lost. Millions of
other Federal, State and local government employees also lost.
They lost their right to protection against retaliation for
reporting instances of misconduct, fraud, corruption, and abuse
that they witnessed within the course and scope of their
employment. But they also lost their right to perform their
jobs as citizens. We have a genuine interest in ensuring that
their government operates competently, efficiently, and within
the law.
In my case, I suffered acts of retaliation simply because I
was doing my job. As a deputy district attorney in Los Angeles,
I was empowered to prosecute individuals who are charged with
crimes. I am often called upon to seek the imprisonment of
persons charged with those crimes. Because of this power, I am
constitutionally obligated to abide by certain rules of law,
evidence, and ethics.
My job is not to win every case or to secure a conviction
in every case. My job is to do justice. My job requires that
only legally obtained evidence be used in the prosecution.
In the case before the Supreme Court, I discovered that
several deputy sheriffs had fabricated evidence, evidence which
formed the basis for probable cause for the issuance of a
search warrant. After I conducted my investigation, confirmed
my investigation with several colleagues in my office and
conferring with my supervisors, I prepared a memorandum
recommending that the case against the defendants be dismissed
because of this constitutional rights violation.
I was further motivated by the then-developing LAPD rampant
corruption scandal in which several rogue LAPD officers were
accused of planting evidence, falsifying police reports,
testifying falsely in court, and, in one case, shooting an
unarmed man in the back.
However, unfortunately, my supervisors at the behest of the
sheriff's department, who were concerned of a civil lawsuit
being filed against them by the defendants, demanded the case
proceed and be prosecuted despite my protests. It was shortly
thereafter that I began to suffer acts of retaliation by my
employer, from change in job assignments, to change in job
location, to the loss of a promotion.
And now according to the Supreme Court, government
employers are no longer constitutionally prohibited by the
first amendment's prohibition against punishing their employees
for speaking out on matters of public concern as long as the
disclosure was made pursuant to their job duties.
The first amendment protection will only be afforded if the
employee goes outside and holds essentially a press conference
on the front steps of a government building. This is a
predicament that is as perverse as it is illogical.
But government employees' action will have another option,
an option that I'm fearful that most will now take, and that is
the option to keep quiet, to look the other way, to feign
ignorance of the corruption, the waste, the fraud that they
witnessed. And if this occurs, it is not only the employee that
loses, it is the public that will lose.
The public will lose their right to know what their
government is doing. The public will lose their right to know
what their government officials, their elected officials, are
doing; whether their taxpayer money is being spent wisely and
appropriately or whether it is being wasted; whether their
government officials are engaged in corruption or fraud.
This Supreme Court ruling fosters, even encourages, an
atmosphere of secrecy in the halls of government, which runs
counter to our Nation's open form of government. It protects
the corrupt, it protects the lazy, it protects the incompetent.
It does not protect--and, to a certain extent, punishing the
honest, the hardworking, the diligent government employees.
Mr. Chairman, members of the committee, I urge you to take
a leadership role to amend the Whistleblower Protection Act to
include protections for employees who disclose instances of
abuse, corruption, and misconduct that they witnessed within
the course and scope of their job duties.
Your actions in this matter will set forth an example, a
positive example for States and other local governments to take
similar actions.
I thank you for the opportunity to speak with you today,
and I would be happy to answer your questions.
Chairman Tom Davis. Thank you very much.
[The prepared statement of Mr. Ceballos follows:]
[GRAPHIC] [TIFF OMITTED] T8966.044
[GRAPHIC] [TIFF OMITTED] T8966.045
[GRAPHIC] [TIFF OMITTED] T8966.046
Chairman Tom Davis. Mr. Bransford.
STATEMENT OF WILLIAM BRANSFORD
Mr. Bransford. Mr. Chairman, members of the committee, I
appreciate the opportunity to testify here this afternoon
concerning how current whistleblower protections may have been
impacted----
Chairman Tom Davis. I think you need----
Mr. Bransford [continuing]. May have been impacted by the
recent Supreme Court decision. I serve as senior counsel for
the professional association that represents Career Senior
Executive Service members and other senior-level Federal
officials. SEA is pleased to offer the perspective of the
career senior manager regarding whistleblower reform and first
amendment protection for Federal employees. The Supreme Court's
decision is an invitation to consider change and helps all of
us focus on important issues.
Members of the Career SES are uniquely situated because
they need strong tools to manage their employees, but they also
need protection when they observe and disclose wrongdoing. They
themselves can be whistleblowers. But at the same time they
need to manage others who claim to have blown the whistle.
Hence, from our perspective, the challenge in any reform is to
strike a balance where Federal employees are encouraged to
report wrongdoing and are assured protection from reprisal, yet
at the same time ensures that Federal work force managers have
what they need.
The classic nightmare whistleblower scenario for managers
occurs when a difficult or vexing employee who seeks
whistleblower status becomes so entrenched in his or her
position that the employee refuses, in an often subtle and
sophisticated manner, to carry out the direction of the
supervision, thus effectively sabotaging the project that the
whistleblower dislikes. Occasionally, an otherwise problem
employee uses whistleblower laws in an attempt to become immune
from reasonable supervision redirection. This too ties a
supervisor's hands.
On the other hand, we agree that current interpretations of
the Federal Whistleblower Protection Act do not adequately
defend Federal employees because of interpretations that do not
protect whistleblowers when they make disclosures to the
supervision, the alleged wrongdoer, when they are just doing
their job. This is the same issue that's presented in Garcetti
v. Ceballos and, quite frankly, it's been the rule under
Whistleblowers Law One that I have dealt with as a practicing
attorney. And under current law if Mr. Ceballos had been a
Federal employee, he would not have been protected for his
whistleblowing activity or--and, as the Supreme Court found, he
was not protected by the first amendment.
Last week, the Senate passed the defense authorization bill
which included S. 494, a whistleblower reform statute that is
very similar in many respects to H.R. 1317 passed by the--
referred out of this committee.
Both of those statutes make significant reforms because
they will allow any disclosure to be protected, even when made
in the course of an employee's duties. We support that law. We
have a couple of concerns about it. But it does three important
things that we think helps strike the balance. In addition to
expanding the definition of a disclosure, it also imposes a
test that the disclosure has to be reasonably objective. It
also says that it excludes policy disputes. And finally, it
gives a manager who's accused of reprisal the opportunity to
show that the personnel action would have occurred anyway.
We think that those three additions provide balance, and we
would support S. 494 and also H.R. 1317 in that respect.
We do have a concern about both H.R. 1317 and S. 494
because they seem to change the process. S. 494 would allow
appeals to multiple circuit courts of appeals, which we think
would add confusion to an already complex law. H.R. 1317 would
create a new right. We think we ought to try this new change in
the law and see if the current system of the Special Counsel
Merit Protection Board would work better to protect
whistleblower rights.
We think--we would recommend and hope that this Supreme
Court decision, which invites State legislatures and the
Congress to enact whistleblower reform, would in fact encourage
the consideration of these whistleblower laws, and perhaps the
conference committee and the defense authorization bill would
be the place to do that.
With that, I thank you very much for the opportunity to
testify this afternoon. I look forward to your questions.
Chairman Tom Davis. Thank you very much.
[The prepared statement of Mr. Bransford follows:]
[GRAPHIC] [TIFF OMITTED] T8966.047
[GRAPHIC] [TIFF OMITTED] T8966.048
[GRAPHIC] [TIFF OMITTED] T8966.049
[GRAPHIC] [TIFF OMITTED] T8966.050
[GRAPHIC] [TIFF OMITTED] T8966.051
Chairman Tom Davis. Ms. Dash. Thank you for being with us.
STATEMENT OF MIMI DASH
Ms. Dash. Good afternoon, Chairman Davis and members of the
committee.
I come before you today as a retired educator of 30 years,
and also my experiences as an advocate for students and
teachers through the local association affiliated with the
National Education Association, having served in all of those
leadership positions.
I am pleased to have the opportunity today to address the
committee on the importance of employees having the right to
speak freely on issues that they consider of great importance
in the workplace.
I would like to give you some examples of areas of concern
for educators that I've been aware of and let you know that
these are the gray areas that we find a few stumbling blocks.
First and most important is the area of possible child
abuse. I'll use the classroom teachers as an example, but there
are other educational employees who are exposed to the same
kind of conditions. As a teacher, if I were to suspect the
possibility of child abuse, I would report my suspicions to the
principal. It would be up to the principal to contact Child
Protective Services. If for some reason the principal did not
make the contact, what would my options be at that point? If I
were to contact Child Protective Services directly, that could
be considered insubordination. If I were to adhere to the
policy of the county level, I would be risking the safety of
the child.
As an advocate for children, I would find it impossible to
ignore the safety of the child. As a citizen, it is my right,
and, in my opinion, my duty to protect the child. As a teacher,
I can't imagine it is any less my right or my duty, and yet
there appears to be a conflict.
I cannot stress for you the severity of this dilemma. Most
teachers would be torn by this situation. Teachers follow
rules, and it's very difficult for them to go outside of the
rules that are set. I cannot know what choices others would
make, but my choice would be clear. By advocating for the
children for whom I dedicated my life, I could have risked my
career. I continued to work in the school as a substitute and
on special projects. I meet with educators through the FEA in
monthly meetings.
Another issue that I'm hearing complaints about, with
limited action or no action by the school system, is something
that we are hearing about nationally; and that is the sick
schools. We have many schools in which teachers are chronically
ill. Some of those illnesses are quite serious.
I serve on a committee hearing appeals for those denied
short-term disability insurance. In one of those cases, an
employee could have simply been allowed to transfer to a
different location as recommended by her doctor. The school
system refused and insisted she could return to work at the
same location. Every time she returned to work, she became sick
and had to go out on leave again, thus negating the terms of
the insurance policy.
Many educators have asked for help, and within the system
they get what is called a clean bill of health for their
schools, although the illnesses continue. If teachers are
getting sick, what about the long-term and lasting effects on
the less highly developed bodies of the children? Going public
on this issue could adversely affect the teachers speaking out
about the situation, but isn't it not only their right, but
also their duty? The expenses that would be incurred by the
school system to correct those problems would be enormous and
most school systems are ignoring it.
These are only two examples, but there are probably many
others. There could be bus safety issues, equipment issues,
training issues and more. All of these adversely affect the
safety of the educator and the children.
Thank you for your time and attention to this matter and I
hope that it can be resolved favorably.
Chairman Tom Davis. Thank you very much.
[The prepared statement of Ms. Dash follows:]
[GRAPHIC] [TIFF OMITTED] T8966.052
[GRAPHIC] [TIFF OMITTED] T8966.053
Chairman Tom Davis. Ms. Soronen.
STATEMENT OF LISA SORONEN
Ms. Soronen. Good afternoon, Chairman Davis and committee
members.
My name is Lisa Soronen and I am a staff attorney for the
National School Boards Association. NSBA represents the
Nation's 95,000 school board members serving on 14,500 school
boards who are responsible for educating 48.5 million public
school children and who employ 6 million people.
I am pleased to testify about the implications of Garcetti
v. Ceballos and request that our written statement be submitted
for the record.
Chairman Tom Davis. Without objection.
Ms. Soronen. NSBA filed a brief in Garcetti v. Ceballos
because the Ninth Circuit ruling would have hampered a school
district's ability to implement curriculum and would have
increased meritless litigation. I would like to offer three
lenses to view the implications of this decision: one, the
problems that would have resulted if the Supreme Court upheld
the Ninth Circuit; two, the many other protections available to
school employees that limit arbitrary employment actions; and
three, the common sense realities for public schools.
Looking through the first lens, if the court had upheld the
Ninth Circuit it would have made all public employees speech
made at work on any topic of public concern into a potential
constitutional issue. Under these circumstances, local school
boards could ultimately lose control of their curriculum as
teachers discuss issues of public concern that have little or
no relevance to the curriculum, or adopt a perspective contrary
to the one of parents and communities acting for their school
boards that have been chosen.
A different holding would also make it easy for a poorly
performing public employee who is facing an adverse employment
action depart to speech on a matter of public concern or
manufacture such speech in order to claim that speech is the
real reason for the adverse employment action.
Virtually all employees at some point in their employment
discuss matters of concern at work, particularly teachers whose
job it is to speak. For this reason, if the court had ruled
differently, almost every employee facing discipline or
termination would at least have a potential first amendment
claim. Significantly, constitutional claims give rise to
different remedies, including attorneys fees. These remedies
may increase the incentives to raise the stakes in employment
disputes.
NSBA's concerns are not theoretical. For example, in a case
currently on appeal to the Seventh Circuit, an elementary
school teacher expressed her personal opinions about the war in
Iraq in a classroom discussion. After parents complained, the
principal sent a memo asking teachers not to express their
personal views on foreign policy in class. Starting well before
this incident, numerous parents had complained about the
teacher's unfair treatment of students and her poor classroom
management skills because of these performance problems. Her
contract was not renewed. She brought a first amendment suit
claiming that the district terminated her because of her
statements about the Iraq war.
At the other end of the political spectrum,teachers in
Michigan had threatened litigation over their supposed first
amendment rights to teach intelligent design. Had the Supreme
Court ruled differently in Ceballos, teachers in cases like
these, regardless of their job performance, could express
whatever views they had on any topic of public concern in the
classroom, and may be able to raise first amendment obstacles
to school district decisions.
Although Ceballos has been portrayed almost solely as a
whistleblower case, it should be clear that the Ninth Circuit
ruling might have protected all speech on any matter of public
concern made at work, including teacher classroom speech.
Moreover, what the employee may perceive to be
whistleblowing, the employer may perceive as the employee
trying to substitute his or her judgment for the employer's
judgment. Policies and implementation studies are just that, a
matter of judgment, not matters of right versus wrong or legal
versus illegal. The court's decision recognizes that sometimes
public employees are just acting like other employers trying to
get the job done. Had the Supreme Court ruled differently, more
routine disagreements between employers and employees could
have become constitutional matters.
Let us look to the second lens. School employees have well-
established job security protections, including broad first
amendment protections. Generally, all school employees are
protected against arbitrary disciplinary actions by State
statute, principles of due process collective bargaining
agreements in most States, and, in the case of teachers, tenure
loss. With all of these protections, school boards would be
hard pressed to terminate a teacher who complains to the
administration about a matter of public concern related to the
teacher's official job duties. Public employees may still be
protected by the first amendment for speech made at work that
relates to their job as long as the speech does not relate to
their official job duties.
For example, in 1979 the Supreme Court held in the Gibbons'
case that a teacher who informed the school principal that she
thought the district employment policies and practices were
racially discriminatory could be protected by the first
amendment, even though her speech was made at work, even though
it related to her job. Moreover, public employees who have
complained about their employer and want first amendment
protection can use public forums such as a local newspaper for
addressing their concerns.
And that takes me to the third lens of viewing Ceballos,
some common sense realities for school systems. Regardless of
whether employees bring first amendment complaints, the
practical reality is that public employers, particularly school
districts, are not likely to summarily fire employees for
bringing a valid concern to the employer's attention. Public
employers exist to serve the citizens of this country and want
to treat employees fairly. School boards have every incentive
not to spend their scarce resources arbitrarily punishing
school employees who speak out rather than on educating
children. This is especially true where public outcry is
likely. It is even more true in a genuine whistleblower
scenario.
In sum, if the choice is between creating a culture that
encourages employees to raise issues about school district
operations internally or in creating a culture where employees
don't come forward at all or, instead, air issues publicly,
clearly the incentives are for public employees to make sure
employees feel free and, in fact, feel obligated to discuss
their concerns frankly with their employer.
School boards can do this without the first amendment. For
all of these reasons, NSBA supports the outcome of Ceballos in
defining the application of this case. Thank you for this
opportunity to testify.
Chairman Tom Davis. Thank you very much.
[The prepared statement of Ms. Soronen follows:]
[GRAPHIC] [TIFF OMITTED] T8966.054
[GRAPHIC] [TIFF OMITTED] T8966.055
[GRAPHIC] [TIFF OMITTED] T8966.056
[GRAPHIC] [TIFF OMITTED] T8966.057
[GRAPHIC] [TIFF OMITTED] T8966.058
[GRAPHIC] [TIFF OMITTED] T8966.059
[GRAPHIC] [TIFF OMITTED] T8966.060
[GRAPHIC] [TIFF OMITTED] T8966.061
[GRAPHIC] [TIFF OMITTED] T8966.062
[GRAPHIC] [TIFF OMITTED] T8966.063
[GRAPHIC] [TIFF OMITTED] T8966.064
[GRAPHIC] [TIFF OMITTED] T8966.065
STATEMENT OF BARBARA ATKIN
Ms. Atkin. Good afternoon, Chairman Davis and all of the
members of House Reform Committee.
I am Barbara Atkin, deputy general counsel of the National
Treasury Employees Union. I thank you for the opportunity to
testify concerning the urgent need for congressional action to
strengthen Federal whistleblower protections in the wake of the
Supreme Court's decision in Garcetti v. Ceballos.
NTE participated in that litigation as an amicus. In order
to underscore the vital interest that Federal employees have in
freely expressing their views on matters of significant public
concern and the compelling need of the public to hear those
views, NTE represents career civil servants who perform
functions critical to the public safety and homeland security
or who play a key roll in the formulation of tax policy or the
regulation of the financial industry. It is essential that
these employees be protected from retaliation when they express
their candid, well-informed views on potential threats to the
public welfare.
That protection must extend to internal discussions with
their supervisors and managers, as well as to external
disclosures to Congress, and even to the media.
The Supreme Court, in Garcetti, has stripped disclosures
made in the course of an employee's duties of any
constitutional protection. This speech, however, is precisely
the speech that is most vulnerable to suppression by political
appointees pursuing their own agenda who are often intolerant
of dissent. It is also the speech most critical to the public
interest.
NTEU calls on Congress to enact reforms to the
Whistleblower Protection Act to protect this speech.
The Federal circuit has held that the Whistleblower
Protection Act does not cover disclosures by employees who are
performing their normally assigned duties in reporting waste,
fraud and abuse. In other words, a NASA safety director or
engineer who spots a safety flaw threatening an imminent space
shuttle flight and who takes the courageous step of urging his
superiors to postpone the flight until the problem is
corrected, to the tune of millions of dollars of added expense,
cannot now be a protected whistleblower in the eyes of the
Federal Circuit because his duties involve overseeing the
shuttle's construction. Similarly, an FDA employee who prepares
reports to Congress now has no statutory protection if she
objects to her superior's insistence on watering down the
science or slanting the conclusions to accommodate a
politically driven agenda.
Whistleblower legislation cleared by the respective House
and Senate committees, H.R. 1317 and S. 494, would close that
major loophole and correct other judicially imposed limitations
as well.
Last week, the Senate approved S. 494 as an amendment to
the fiscal year 2007 Defense authorization bill. NTEU strongly
urges the House to accept S. 494 in the upcoming House/Senate
conference on the Defense authorization bill.
The pending legislative reforms also provide some
additional important protection to other speech left vulnerable
by Garcetti and by the Federal Circuit; namely, disclosures
that amount to mere so-called differences of opinion on
debatable policy decisions. S. 494 and H.R. 1317 would protect
disagreements over policy decisions that evidence a violation
of law or other specific serious wrongdoing. Unfortunately,
that leaves unprotected many internal policy disagreements over
other key issues. An employee of FEMA, for example, who insists
that the agency is poorly led and organized and who provides
telling examples of misguided policies would be highly
vulnerable to agency censorship and retaliation unless the
employee aired his views in public. Only then would he have any
protection, and that would arise under the fifth amendment, not
the WPA.
The court in Garcetti acknowledged this perverse incentive
to go public in the first assistance, which no one believes is
consistent with good government management. NTEU strongly
encourages Congress to explore an option suggested by the
Supreme Court in Garcetti, the establishment of an internal
forum for the expression of dissenting opinions. NTEU has
itself negotiated contractual protections for employees at the
Food and Drug Administration and the Nuclear Regulatory
Commission who express their personal opinions. Regulations and
directives at those agencies also provide the right to preserve
professional disagreements on the record. Those provisions may
serve as a model for adoption governmentwide.
In conclusion, I urge Congress to keep the provisions in S.
494 in the final Defense authorization bill.
I thank you for this opportunity to address this important
issue on behalf of all of the members of NTEU, and I would be
happy to answer any questions.
[The prepared statement of Ms. Atkin follows:]
[GRAPHIC] [TIFF OMITTED] T8966.066
[GRAPHIC] [TIFF OMITTED] T8966.067
[GRAPHIC] [TIFF OMITTED] T8966.068
[GRAPHIC] [TIFF OMITTED] T8966.069
[GRAPHIC] [TIFF OMITTED] T8966.070
[GRAPHIC] [TIFF OMITTED] T8966.071
[GRAPHIC] [TIFF OMITTED] T8966.072
[GRAPHIC] [TIFF OMITTED] T8966.073
[GRAPHIC] [TIFF OMITTED] T8966.074
[GRAPHIC] [TIFF OMITTED] T8966.075
[GRAPHIC] [TIFF OMITTED] T8966.076
Chairman Tom Davis. Thank you very much.
Mr. Bergstrom, thank you for being here.
STATEMENT OF RICHARD J. BERGSTROM
Mr. Bergstrom. Thank you, Chairman Davis and the other
members of the committee, for the invitation to be here today.
I'm a partner with the law firm of Morrison & Foerster, and
co-chair of our Labor Employment Group. I work out of our
office in San Diego, CA, which, as it turns out, is just a
couple hours away from where Mr. Ceballos worked as a deputy
district attorney.
I'd like to make three basic points this afternoon
concerning the Garcetti decision and its impact on Federal and
State whistleblowing protection.
First, we believe that, when properly read and understood,
Garcetti represents a fairly narrow ruling which is unique to
the facts presented to the court. As you're aware, only a first
amendment claim was presented in the matter; there were no
other Federal or State claims at issue before the U.S. Supreme
Court. The issue which the Supreme Court addressed was whether
a memorandum written by Mr. Ceballos was protected as private
citizen speech or was written pursuant to his official duties.
This is the key question. The Supreme Court noted, in
addressing this question specifically, that internal complaints
of whistleblowing could still constitute protected activity
under the first amendment. As has been suggested in prior
questions and answers in statements given here today, I would
assert that the issue is not one of internal versus external.
The court, on page 1959 of its decision, specifically indicated
that internal whistleblower complaints would still be protected
under the first amendment. The question is whether those
whistleblowing activities were made pursuant to the
individual's official job duties.
Second, the court also noted that whistleblowing complaints
directly relating to an individual's work could also still be
protected under the first amendment. In the Garcetti matter,
however, there are some unique facts. Mr. Ceballos actually
testified under oath that it was his job, he was hired to
investigate issues relating to whether arrest warrants were
properly issued, and he was hired to write advisory memoranda
as to those investigations. Based on these narrow facts, with
the claim at issue and Mr. Ceballos' admission, the Supreme
Court then narrowly interpreted these facts and found that the
memorandum was not protected speech, it was not that of a
private citizen and so the first amendment did not provide
protection.
The second issue is that Garcetti is consistent with prior
Supreme Court opinions concerning whistleblower protection
under the first amendment. Going back to 1968 in the seminal
case of Pickering, which we've referenced earlier today, the
Supreme Court addressed an issue relating to external
whistleblowing. A teacher in that case issued a letter to a
newspaper complaining about spending practices of the local
school board. The Supreme Court in that case found that speech
was not part of the teacher's official job duties and was
protected. Possibly a more instructive case, given the debate
that we've had today, is the Givhan case, which was issued 11
years later. In that case, a teacher complained directly to the
school board principal--purportedly her supervisor--about
school district policy directly relating to her job, that it
was discriminatory. The Supreme Court in that instance was
addressing a complaint of internal whistleblowing, which was
also job related. The Supreme Court found that this speech was
protected. It was not part of the teacher's official job
duties. In other words, she was not hired, as Mr. Ceballos was,
to conduct an investigation; she was not hired, as Mr. Ceballos
was, to write an internal memorandum, as Mr. Ceballos was and
admitted under oath.
It's important to note that the Supreme Court actually
affirmed the analysis and conclusions in both Pickering and
Givhan, and neither case, the result in neither case would be
changed by the holding in the Garcetti case today.
The last point I'd like to make is that there are a myriad
of statutes and common law rights which protect whistleblowers
which are independent from the first amendment.
We've talked about a number of the Federal pieces of
legislation today, but with regard to State legislation there
are 48 States with whistleblower protection for government
employees. There are 45 States that have adopted common law
protection for whistleblowers. And specifically in California,
which I think is important in this matter since that is where
Mr. Ceballos was based, significant protections have been
adopted as well.
Under California Labor Code, section 1102.5, both private
and public employees are protected from whistleblower
activities for reporting violations of Federal and State law.
Under California Government Code, section 53298, both city and
county employees, such as Mr. Ceballos, again are protected
from whistleblowing activities relating to gross mismanagement
and abuse of authority.
California has also adopted its own Whistleblower
Protection Act which protects State employees. And last, there
is a common law claim in California where an employee believes
that he or she has been improperly demoted or terminated, the
individual can state a claim for wrongful termination in
violation of public policy or wrongful demotion in violation of
public policy. Based on this network of protections, the courts
have the ability to award compensatory, punitive and even
criminal penalties.
Now, none of these claims, as we've indicated, were before
the Supreme Court, and the record is not clear as to why Mr.
Ceballos and his counsel chose not to take advantage of these
significant protections. However, what is clear is that the
ruling in Garcetti is likely to have little impact on these
laws. No. 1, Garcetti, as I pointed out, is fairly narrow and
unique to its facts; and No. 2, the protection provided by the
statutes is governed by the express language in the statutes
themselves.
Thank you very much for the opportunity to testify today.
[The prepared statement of Mr. Bergstrom follows:]
[GRAPHIC] [TIFF OMITTED] T8966.077
[GRAPHIC] [TIFF OMITTED] T8966.078
[GRAPHIC] [TIFF OMITTED] T8966.079
[GRAPHIC] [TIFF OMITTED] T8966.080
[GRAPHIC] [TIFF OMITTED] T8966.081
[GRAPHIC] [TIFF OMITTED] T8966.082
[GRAPHIC] [TIFF OMITTED] T8966.083
[GRAPHIC] [TIFF OMITTED] T8966.084
[GRAPHIC] [TIFF OMITTED] T8966.085
[GRAPHIC] [TIFF OMITTED] T8966.086
[GRAPHIC] [TIFF OMITTED] T8966.087
[GRAPHIC] [TIFF OMITTED] T8966.088
[GRAPHIC] [TIFF OMITTED] T8966.089
[GRAPHIC] [TIFF OMITTED] T8966.090
[GRAPHIC] [TIFF OMITTED] T8966.091
[GRAPHIC] [TIFF OMITTED] T8966.092
[GRAPHIC] [TIFF OMITTED] T8966.093
[GRAPHIC] [TIFF OMITTED] T8966.094
[GRAPHIC] [TIFF OMITTED] T8966.095
[GRAPHIC] [TIFF OMITTED] T8966.096
[GRAPHIC] [TIFF OMITTED] T8966.097
[GRAPHIC] [TIFF OMITTED] T8966.098
[GRAPHIC] [TIFF OMITTED] T8966.099
[GRAPHIC] [TIFF OMITTED] T8966.100
[GRAPHIC] [TIFF OMITTED] T8966.101
[GRAPHIC] [TIFF OMITTED] T8966.102
[GRAPHIC] [TIFF OMITTED] T8966.103
[GRAPHIC] [TIFF OMITTED] T8966.104
[GRAPHIC] [TIFF OMITTED] T8966.105
[GRAPHIC] [TIFF OMITTED] T8966.106
[GRAPHIC] [TIFF OMITTED] T8966.107
[GRAPHIC] [TIFF OMITTED] T8966.108
[GRAPHIC] [TIFF OMITTED] T8966.109
[GRAPHIC] [TIFF OMITTED] T8966.110
[GRAPHIC] [TIFF OMITTED] T8966.111
[GRAPHIC] [TIFF OMITTED] T8966.112
[GRAPHIC] [TIFF OMITTED] T8966.113
[GRAPHIC] [TIFF OMITTED] T8966.114
[GRAPHIC] [TIFF OMITTED] T8966.115
[GRAPHIC] [TIFF OMITTED] T8966.116
[GRAPHIC] [TIFF OMITTED] T8966.117
[GRAPHIC] [TIFF OMITTED] T8966.118
[GRAPHIC] [TIFF OMITTED] T8966.119
[GRAPHIC] [TIFF OMITTED] T8966.120
[GRAPHIC] [TIFF OMITTED] T8966.121
[GRAPHIC] [TIFF OMITTED] T8966.122
[GRAPHIC] [TIFF OMITTED] T8966.123
[GRAPHIC] [TIFF OMITTED] T8966.124
[GRAPHIC] [TIFF OMITTED] T8966.125
[GRAPHIC] [TIFF OMITTED] T8966.126
[GRAPHIC] [TIFF OMITTED] T8966.127
[GRAPHIC] [TIFF OMITTED] T8966.128
[GRAPHIC] [TIFF OMITTED] T8966.129
[GRAPHIC] [TIFF OMITTED] T8966.130
[GRAPHIC] [TIFF OMITTED] T8966.131
[GRAPHIC] [TIFF OMITTED] T8966.132
[GRAPHIC] [TIFF OMITTED] T8966.133
[GRAPHIC] [TIFF OMITTED] T8966.134
[GRAPHIC] [TIFF OMITTED] T8966.135
[GRAPHIC] [TIFF OMITTED] T8966.136
[GRAPHIC] [TIFF OMITTED] T8966.137
[GRAPHIC] [TIFF OMITTED] T8966.138
[GRAPHIC] [TIFF OMITTED] T8966.139
[GRAPHIC] [TIFF OMITTED] T8966.140
[GRAPHIC] [TIFF OMITTED] T8966.141
[GRAPHIC] [TIFF OMITTED] T8966.142
[GRAPHIC] [TIFF OMITTED] T8966.143
[GRAPHIC] [TIFF OMITTED] T8966.144
[GRAPHIC] [TIFF OMITTED] T8966.145
[GRAPHIC] [TIFF OMITTED] T8966.146
[GRAPHIC] [TIFF OMITTED] T8966.147
[GRAPHIC] [TIFF OMITTED] T8966.148
[GRAPHIC] [TIFF OMITTED] T8966.149
[GRAPHIC] [TIFF OMITTED] T8966.150
[GRAPHIC] [TIFF OMITTED] T8966.151
[GRAPHIC] [TIFF OMITTED] T8966.152
[GRAPHIC] [TIFF OMITTED] T8966.153
[GRAPHIC] [TIFF OMITTED] T8966.154
[GRAPHIC] [TIFF OMITTED] T8966.155
[GRAPHIC] [TIFF OMITTED] T8966.156
[GRAPHIC] [TIFF OMITTED] T8966.157
[GRAPHIC] [TIFF OMITTED] T8966.158
[GRAPHIC] [TIFF OMITTED] T8966.159
[GRAPHIC] [TIFF OMITTED] T8966.160
[GRAPHIC] [TIFF OMITTED] T8966.161
[GRAPHIC] [TIFF OMITTED] T8966.162
[GRAPHIC] [TIFF OMITTED] T8966.163
[GRAPHIC] [TIFF OMITTED] T8966.164
[GRAPHIC] [TIFF OMITTED] T8966.165
[GRAPHIC] [TIFF OMITTED] T8966.166
The Chairman. Well, thank you very much.
Mr. Goldberg.
STATEMENT OF JOE GOLDBERG
Mr. Goldberg. Chairman Davis, Mr. Waxman, and members of
the committee, thank you for both the opportunity to testify
today and also for the work your committee has done and
continues to do on the issue of whistleblower protections.
Now, I essentially abandoned the remarks that I was going
to make here today. I represent the American Federation of
Government Employees, the largest Federal employee labor union.
We represent over 200,000 employees.
There is nothing this committee can do concerning the
Garcetti opinion. It is a first amendment analysis which
obviously is outside the purview of this committee's
jurisdiction. However, the Garcetti decisionmakes obvious the
need for statutory whistleblower protection, which is within
the purview of this committee.
The Whistleblower Protection Act, which we use daily at the
American Federation of Government Employees to protect our
employees, to that extent which they can be protected,
essentially is a dead letter. The decisions of the U.S. Court
of Appeals for the Federal Circuit have limited the plain
language of the Whistleblower Protection Act to a surreal set
of circumstances. So the Whistleblower Protection Act as to
Federal employees essentially no longer exists. It's up to this
committee to repair the damage done to the Whistleblower
Protection Act by the Court of Appeals for the Federal Circuit.
We commend the chairman and this committee for its work in
H.R. 1317, which is attempting to repair that damage.
Thank you very much.
[The prepared statement of Mr. Goldberg follows:]
[GRAPHIC] [TIFF OMITTED] T8966.167
[GRAPHIC] [TIFF OMITTED] T8966.168
[GRAPHIC] [TIFF OMITTED] T8966.169
[GRAPHIC] [TIFF OMITTED] T8966.170
[GRAPHIC] [TIFF OMITTED] T8966.171
[GRAPHIC] [TIFF OMITTED] T8966.172
Chairman Tom Davis. Thank you very much.
Ms. Dash, let me start with you. What is within a teacher's
job description? Because that's central through the whole case.
Can you--you're a veteran and a leader and a professional.
Ms. Dash. Anything and everything that is asked of us.
Chairman Tom Davis. So reporting abuse is clearly within
that?
Ms. Dash. Yes, but reporting it to the principal. It's
limited to the supervisor.
Chairman Tom Davis. Reporting environmental hazards would
be obviously part of it?
Ms. Dash. Correct.
Chairman Tom Davis. OK.
Ms. Dash. The problem lies with where it goes after that if
nothing happens at the next level.
Chairman Tom Davis. Commenting on curriculum, that would
also be part of the duty, wouldn't it? Or would it not? Is that
where it gets fuzzy?
Ms. Dash. I guess it depends on how courageous you are.
Chairman Tom Davis. You'd think they would want your input,
right?
Ms. Dash. You would, wouldn't you?
Chairman Tom Davis. Ms. Soronen, let me ask you the same
question.
Ms. Soronen. Justice Kennedy, in writing the majority
opinion, specifically states, we reject, however, the
suggestion that employers can restrict employees' rights by
creating excessively broad job descriptions.
That I think is a specific admonishment to a lower court
that they likewise cannot create excessively broad job
descriptions to limit an employee's rights.
I guess how this issue will play out will be ultimately
determined by a lower court and the Supreme Court, if they ever
take a case, defining what exactly an employee's job duties
means under this case. The majority was clear, it was to be
defined narrowly.
I think of teachers, teaching job duties in the classroom
are clearly a part of their official job duties. Reporting
things like abuse and neglect, which might be the obligation of
all school listed employees, or commenting on air quality and
the like are probably not part of a teacher's official job
duties. But I guess that's for the lower courts to decide. The
Supreme Court spoke resoundingly on the fact that job
descriptions are to be defined narrowly.
Chairman Tom Davis. OK. Thank you. I've been summoned to
the floor, but Mr. Issa is going to take over questioning for
our side, and I know Ms. Watson has some questions.
Ms. Watson. I want to thank all the panelists. And I still
have a bit of confusion. There's been reference made to H.R.
1317, and then reference made to Senate bill 494. Let me--I
notice that Mr. Khon is no longer in the audience, but let me
ask Mr. Goldberg, how would H.R. 1317 and S. 494 apply to the
case under consideration, or the Supreme Court decision?
Mr. Goldberg. Again, the statutory revisions contemplated
by Congress in H.R. 1317 and S. 494 would repair the
Whistleblower Protection Act, which essentially, as I said in
my testimony, is a dead letter. One of the ways it would do
this is explicitly recognize that the type of input that an
employee can make internally would explicitly be protected. And
when an employee such as a NASA employee on the space shuttle,
an engineer on the space shuttle reports to a supervisor what
he believes to be a deadly threat to health and safety, that
explicit complaint--which is covered by that person's job
description--would be protected activity.
Again, perversely now, the very experts that we rely on and
that we've hired to do the job are not protected when they
express their professional opinion on matters of life and
death. And H.R. 1317 and S. 494 would go a long way toward
repairing that gaping hole in the Federal Whistleblower
Protection Act.
Ms. Watson. Well, my question is, was this particular case
brought to court under the wrong provision, because it had to
do with first amendment? If these two bills become the law,
then they would cover Mr. Ceballos?
Mr. Goldberg. Actually, they probably would not. What we
have are two different methods of trying to protect
whistleblowing, both the constitutional method, which is the
Garcetti decision, and the statutory method. Now again, when
the Supreme Court has spoken, as the highest court in the land,
as to the first amendment, the scope of the first amendment,
there's nothing this committee can do to affect that. But there
are statutory protections that this committee certainly can
invoke and legislate that would protect the same whistleblowing
activity.
So essentially you would have two different methods of
enforcing the whistleblower protection; one, constitutional.
Now, we have heard the limits of that in Garcetti and in
various comments today. The second is a statutory protection,
which was not involved in Garcetti, and that is what this
committee can do in its amendments to the Federal Whistleblower
Protection Act.
Ms. Watson. Well, could Garcetti be taken back to court if
these two passed?
Mr. Goldberg. The short answer----
Ms. Watson. This went up to the highest court, but it was
an interpretation of the protection of the first amendment?
Mr. Goldberg. That is correct. And the case has been--as I
understand it, the case has been remanded to a lower court. As
to the addition of a subsequent Federal law to the previous
discipline involved in that case, that would be the ex post
facto application of a subsequent law, which might be
problematic.
Ms. Watson. Mr. Bergstrom.
Mr. Bergstrom. Ms. Watson, just to clarify, we have three
buckets of employees seeking protection for whistleblowing
activities; you have Federal employees, you have your State or
local government employees, and then you have your private
sector employees. And I think to--not to get overly bogged down
in the legal intricacies of your question, but I think that the
bills which are proposed would be amendments to protections
which would apply to a Federal employee. In this instance Mr.
Ceballos was an employee of the county of Los Angeles. So the
easy answer to your question is no, it wouldn't have any affect
on Mr. Ceballos.
Ms. Watson. Well, I have a great amount of interest
because, No. 1, I am a Representative from Los Angeles County;
No. 2, I know of the case; and No. 3, Mr. Ceballos made
reference to another case where under Federal law to be able to
mediate the actions of those involved. And what I'm trying to
get through here is where then do we address a new policy that
would have an impact on a person in the county of Los Angeles
or any other county in the United States? What would we have to
do, Mr. Goldberg, to give him the protections?
Mr. Goldberg. Again, I represent Federal employees, and
there are certain limits to the power of the U.S. Congress to
protect a State employee; however, as long as that employee
could be brought under the purview of, say, the Commerce
Clause, by passing Federal legislation, then it is possible for
the Federal Government to effect and essentially grant
statutory whistleblower protection rights to State employees,
but it would be a question of federalism versus States rights.
Ms. Watson. Let me just ask this if I might, Mr. Chair.
Could the Federal Government then require all States to relook
at their whistleblower laws under the situation concerning
Garcetti?
Mr. Goldberg. That's certainly possible. And it is also,
again, certainly possible that the Federal Government could
pass a law that would--the Federal law would cover the
whistleblower protections of State and municipal government
employees.
Ms. Watson. That might be a direction to go in, that we
could initiate here at the Federal level?
Mr. Goldberg. That's correct. But again the Supreme Court
has shown itself somewhat conversant with the limits of Federal
power vis-a-vis purely State activities. So the Congress would
have to be careful to indicate the interstate aspects of the
protections that it seeks to expand to State or municipal
employees.
Ms. Watson. Well, what we could do--and this is to the
Chair--is that we might want to have certain States to take a
look at their whistleblower protections relative to the
Garcetti decision that really addresses Federal employees. This
case is brought to us--this is a county employee, and we're
discussing it here under a Federal framework. And so it might
be something that we could address by having States look at
these laws and see if there is an application to their own
employees.
Mr. Goldberg. That's certainly correct. And of course
Federal money to flow down through the States and to the
municipalities, and that may be a method of using Federal
authority to grant certain statutory rights that the Supreme
Court did not feel emanated from the Constitution, but that the
Federal Congress believes are in the best interests of the
citizens of the United States to grant to State or municipal
employees.
Mr. Issa [presiding]. The gentlelady's time is up.
Mr. Bransford, you seem to want to weigh in.
Mr. Bransford. Yes, I wanted to address Ms. Watson's
question.
If S. 494 or H.R. 1317 were to pass and if Mr. Ceballos was
a Federal employee, he would be protected, in my opinion. And
if the Congress were to pass either version of those laws, I
think it would serve as a good leadership example to the States
to pass similar whistleblower protections.
Ms. Watson. But he is not a Federal employee.
Mr. Bransford. It wouldn't protect him, but it would
protect Federal employees engaged in similar behavior who are
not now protected.
Ms. Watson. And I'm trying to get to how--we're discussing
this case, which is local to the State of California and the
county of Los Angeles.
Mr. Bransford. I think it is mostly up to the State of
California.
Mr. Issa. The gentlelady did a great job. I would have let
you go on longer.
I've got just a couple of questions, and if you'd like a
second round, we can come back until the bell rings for the
vote.
I think, Mr. Ceballos, I'd like to sort of set one thing
straight. You're presently working for the county of Los
Angeles?
Mr. Ceballos. Yes.
Mr. Issa. You're continuing to pursue your case?
Mr. Ceballos. Yes.
Mr. Issa. Although you've gone a long way, you're here
today testifying before Congress, your own time, your own dime,
as I understand?
Mr. Ceballos. Correct.
Mr. Issa. I guess the question is why? Many people in your
situation, with your education, your talents, your capability,
very portable, would have simply moved on. Why do you stay
there doing the job you're doing?
Mr. Ceballos. Well, I ask myself that question I think
almost every day. I think simply because I know I'm doing the
right thing. Back then I knew I was doing the right thing, and
I continue to believe I'm doing the right thing. And I think
it's important that public employees feel that when they are
acting in the best interests of their employer and the public,
that they be afforded the protection to act in that best
interest. And even though there is nothing that this panel can
do that will change what has already occurred to me or change
this decision, if it helps future government employees then I
will do everything I can to help in that regard.
Mr. Issa. Well, sir, often in Washington we quote this, you
know, where do I go to get my reputation back. You don't have
that problem. Your reputation is intact inspite of all the
trials and tribulations that you've gone through. So I would
certainly--this committee supports and continues to promote the
ability of people to break through the bureaucracy and report
wrongdoing for the benefit of all the people of the United
States. So I commend you for staying with it. Like I said, I
had to ask why you did it. As a Californian, we're both
Californians, you know, I applaud that you are staying on the
job. Now I'm San Diego. And if you ever decide to move to
another county, you know, we could use some good people.
Sorry, my ranking member here and I constantly try to
figure out whether in fact Los Angeles--San Diego is what Los
Angeles was when people went there.
I do have one more sort of critical question. Why did you
decide to raise this as a first amendment claim rather than a
claim under statutory whistleblowers? That, to a great extent,
is what elevated you to the Supreme Court.
Mr. Ceballos. Right. I think at the time myself and my
lawyers felt that the first amendment provided us with the
means and the protections to address our grievances and pursue
our remedies. At the time we did not believe that the
California law--which is, frankly, better than most other
States--provided the means and the protection. And it's still
not clear if it does that.
Mr. Issa. Well, let me explore a slightly different line
that probably broadens the question a little bit. As we look at
conferencing our legislation and trying to have the best--and
particularly for Mr. Goldberg--it is unlikely that this
Congress is going to try to reach down and usurp all States
rights on the whistleblower. It hasn't been a tendency and I
don't think it should be. I don't think the ranking gentlelady
would think that we should preempt because when you start
preempting, you never know when it will end. However, so many
actions in States do involve moneys of the Federal Government
and in effect on Federal moneys being spent.
Would you say that a narrowly crafted statute that would
apply Federal whistleblowers, if that specific action had a
direct link to the prosecution of Federal dollars--and I'll
just give you an example so that at least we can work in that
rhetorical sense. If, for example, a law enforcement officer,
State law enforcement officer like yourself or a policeman were
prosecuting using Federal dollars on a State case--let's say
gang violence--and that in fact it was going to lead to a waste
of those dollars, do you think it would be appropriate for us
to include that in our legislation such that the Federal
interest would occur in the sense that a State whistleblower
would be in fact effectively reporting the loss of Federal
dollars or the misspending of specifically Federal dollars? If
that link can be made, do you think that would be appropriate
and effective in helping to bring some common denominator that
other States may choose to follow?
Mr. Goldberg. Certainly that could be an approach. I would
not recommend--I don't think my organization would recommend a
preemption of State law, but--as we have the 50 States as a
laboratory--but certainly the Federal law could provide a floor
and an independent cause of action regardless of an individual
State's law, especially if it involved Federal dollars. But
preemption of State law, I understand, is probably not at the
forefront of this committee's intent at this time, but it's not
required either and we're not suggesting it.
Mr. Issa. OK. One final question, and I'd like to make sure
the gentlelady has time before we trot to our vote.
Mr. Bergstrom, in light of the Supreme Court decision, how
would you advise a client to pursue a similar claim today? In
other words, same facts, Supreme Court decision there, what
remedies would you choose based on what's available, and then
you can hypothecate whether some of this becomes law.
Briefly, so the gentlelady gets her question.
Mr. Bergstrom. Absolutely. I will just be direct and to the
point. It would depend, of course, on which category the
employee falls into, because as we've discussed, the framework
of laws that protect whistleblower activities depend on whether
you're Federal, State or private sector. Assuming that you are
a California State public sector employee, you could take
advantage of California Labor Code, section 1102.5, which
protects both private and public sector employees for reporting
violations of Federal or State law. That claim in and of itself
also specifically protects reports that are made by a
government employee internally to his or her supervisor, which
is one of the suggestions that was made earlier today.
So I would suggest that, as to California, it's well on its
way, as many other States are, with adequate whistleblower
protections. California also has its own independent
Whistleblower Protection Act, which protects State employees,
and then it has a separate procedure which protects city and
county employees under Government Code, section 53298.
And last, the employee certainly, if they were demoted, as
Mr. Ceballos has asserted that he was, or if they were
terminated, as some employees assert that they are, in response
to making a whistleblower complaint, then they would have a
common law claim for wrongful termination or wrongful demotion
in violation of public policy.
Mr. Issa. Now as a San Diego non-lawyer to a San Diego
lawyer, you didn't mention the fact that when Mr. Ceballos
protected or attempted to protect somebody from an
incarceration when in fact they should not have been
incarcerated, in his opinion, he was protecting somebody from a
wrongful imprisonment, from a denial of federally protected
civil rights. Would you consider that in fact in this case,
because it was law enforcement trying to prevent a wrongful
breach of somebody's federally protected civil rights--we have
a right not to be wrongfully imprisoned-- that had any merit
that would have brought it to the Supreme Court with a
different outcome?
Mr. Bergstrom. That may be a question better asked to Mr.
Ceballos' counsel at the time. Honestly it is not an issue that
I had considered previously.
Mr. Issa. Thank you.
The gentlelady.
Ms. Watson. Thank you very much, Mr. Chairman.
I just wanted to say to Mr. Ceballos, it was courageous of
you to come here, and I commend you, because what we would like
to have is more honesty in government. And I'm very familiar
with the case that you reference. We watched it very closely.
It wasn't in my district, but at one time it was in my school
district--I was on the school board then. I was very interested
in the comments of the two people representing educational
organizations. And I would say to you, I think it's been
remanded down to another court.
Mr. Ceballo. Ninth Circuit.
Ms. Watson. What are you seeking? What kind of relief and
remedy are you seeking?
Mr. Ceballos. I think we're waiting to hear from the Ninth
Circuit to see what they want us to do.
Ms. Watson. If you will leave your card here with the
staff, I would appreciate it. I'd like to get in touch with you
privately.
Mr. Ceballos. I will.
Ms. Watson. Thank you very much, panelists.
Mr. Issa. And I would like to thank, once again, all the
panelists.
The record will stay open for 5 legislative days so that
you may include additional extraneous materials. And if you
don't mind, if there are any questions from people who were not
able to be here, they'll be submitted to you in writing. And
with that, we stand adjourned.
[Whereupon, at 2:17 p.m., the committee was adjourned.]
[The prepared statement of Hon. Jon C. Porter and
additional information submitted for the hearing record
follow:]
[GRAPHIC] [TIFF OMITTED] T8966.173
[GRAPHIC] [TIFF OMITTED] T8966.174
[GRAPHIC] [TIFF OMITTED] T8966.175
[GRAPHIC] [TIFF OMITTED] T8966.176
[GRAPHIC] [TIFF OMITTED] T8966.177
[GRAPHIC] [TIFF OMITTED] T8966.178
[GRAPHIC] [TIFF OMITTED] T8966.179
[GRAPHIC] [TIFF OMITTED] T8966.180
[GRAPHIC] [TIFF OMITTED] T8966.181
[GRAPHIC] [TIFF OMITTED] T8966.182
[GRAPHIC] [TIFF OMITTED] T8966.183
[GRAPHIC] [TIFF OMITTED] T8966.184
[GRAPHIC] [TIFF OMITTED] T8966.185
[GRAPHIC] [TIFF OMITTED] T8966.186
[GRAPHIC] [TIFF OMITTED] T8966.187
[GRAPHIC] [TIFF OMITTED] T8966.188
[GRAPHIC] [TIFF OMITTED] T8966.189
[GRAPHIC] [TIFF OMITTED] T8966.190
[GRAPHIC] [TIFF OMITTED] T8966.191
[GRAPHIC] [TIFF OMITTED] T8966.192
[GRAPHIC] [TIFF OMITTED] T8966.193
[GRAPHIC] [TIFF OMITTED] T8966.194
[GRAPHIC] [TIFF OMITTED] T8966.195
[GRAPHIC] [TIFF OMITTED] T8966.196
[GRAPHIC] [TIFF OMITTED] T8966.197
[GRAPHIC] [TIFF OMITTED] T8966.198
[GRAPHIC] [TIFF OMITTED] T8966.199
[GRAPHIC] [TIFF OMITTED] T8966.200
[GRAPHIC] [TIFF OMITTED] T8966.201
[GRAPHIC] [TIFF OMITTED] T8966.202
[GRAPHIC] [TIFF OMITTED] T8966.203
[GRAPHIC] [TIFF OMITTED] T8966.204
[GRAPHIC] [TIFF OMITTED] T8966.205
[GRAPHIC] [TIFF OMITTED] T8966.206
[GRAPHIC] [TIFF OMITTED] T8966.207
[GRAPHIC] [TIFF OMITTED] T8966.208
[GRAPHIC] [TIFF OMITTED] T8966.209
[GRAPHIC] [TIFF OMITTED] T8966.210
[GRAPHIC] [TIFF OMITTED] T8966.211
[GRAPHIC] [TIFF OMITTED] T8966.212
[GRAPHIC] [TIFF OMITTED] T8966.213
[GRAPHIC] [TIFF OMITTED] T8966.214
[GRAPHIC] [TIFF OMITTED] T8966.215
[GRAPHIC] [TIFF OMITTED] T8966.216
[GRAPHIC] [TIFF OMITTED] T8966.217
[GRAPHIC] [TIFF OMITTED] T8966.218
[GRAPHIC] [TIFF OMITTED] T8966.219
[GRAPHIC] [TIFF OMITTED] T8966.220
[GRAPHIC] [TIFF OMITTED] T8966.221
[GRAPHIC] [TIFF OMITTED] T8966.222
[GRAPHIC] [TIFF OMITTED] T8966.223
[GRAPHIC] [TIFF OMITTED] T8966.224
[GRAPHIC] [TIFF OMITTED] T8966.225
[GRAPHIC] [TIFF OMITTED] T8966.226
[GRAPHIC] [TIFF OMITTED] T8966.227
[GRAPHIC] [TIFF OMITTED] T8966.228
[GRAPHIC] [TIFF OMITTED] T8966.229
[GRAPHIC] [TIFF OMITTED] T8966.230
[GRAPHIC] [TIFF OMITTED] T8966.231
[GRAPHIC] [TIFF OMITTED] T8966.232
[GRAPHIC] [TIFF OMITTED] T8966.233