2012 the Year of the Whistleblower
Some of the themes on this site transcend any particular case that we have addressed, and have broader relevance in our courts, and one of them, which is a major theme of this site, is whistleblower protection. First Amendment litigation in public employment is the most basic type of whistleblower litigation, and there are some laws, none of which have been effectively enforced, that ostensibly provide additional protections. Public employees often hold the keys to exposing public corruption, because they work behind the veil, and much of the fight that Don Bailey and many of his clients have been fighting has been centered around representing long-time, well-respected, high-level public employees, police officers, etc, who have exposed misconduct and malfeasance at the highest levels of state government repeatedly. It has covered democrat and republican officials and administrations, and has persisted at the highest levels. It is the heart of the Bailey “shit storm”, and is a major focus of the efforts we wish to take politically. The Tom Kimmett/Corbett corruption case is a classic example of whistleblower litigation, and the entirety of the Don Bailey disciplinary case is quintessentially whistleblowing, though with complicating dynamics.
In that regard, one of our participants has provided us with an external link to an effort by another organization, change.org, who is submitting what appears to be a very general Petition for Whistleblower protection to the President and members of Congress, for action and attention to the need for greater and more effective whistleblower protection. No issue should be more deserving of broad, a-partisan, political support, than something that not only serves to streamline government, but promotes integrity as well. It serves every liberal and conservative ideal, and may be the best first defense against crony capitalism, which typically relies upon a beholden bureaucracy to survive. The message to which you are asked to ascribe is simply stated as follows:
I just signed the following petition addressed to: House, Senate, and the President.
For years federal government whistleblowers have not been protected after they expose waste, fraud, and abuse of power. Our new year’s resolution is a chance to speak up for truth and honesty in government programs. It is high time that we demand real protection and jury trials for fired whistleblowers. The laws that have been passed do not have regulations with teeth. Visit www.whistleblowing.us to see the International Whistleblower Archive where one can review the sad history of protection of whistleblowers. We need your support to archive the struggle and to continue the fight for whistleblower rights.
Everything about the site and the message appears consistent with everything we have discussed as the core of our efforts here, and we will provide a permanent link in our resources. The contribution is appreciated.
Efforts to stop First Amendment encroachments
The efforts of PCRLN will focus specifically on the systemic problems that have led to the lax whistleblower protection environment. The full scope of the implications of these matters will be developed over time, and will suggest the relationship of the cases coming out of Don Bailey’s office to these trends. For now, we introduce you to three United States Supreme Court decisions, all involving issues frequently litigated by Bailey in his cases, that have severely limited the rights of employees in First Amendment cases. The cases are Garcetti v. Ceballos, 547 U.S. 410 (2006) , Engquist v. Oregon Department of Agriculture, 553 U.S. 591 (2008), and Guarnieri v. Borough of Durryea, 564 U.S. __ (2011), and they have severely limited employee protections in the areas of 1) reporting misconduct, 2) being targeted as a whistleblower, and 3) having whistleblower protection for employee grievances.
For now these cases are only being introduced generally, and are linked for your convenience. The more complete analysis will come in future posts. Suffice it to say that each of those cases has circumscribed entire classes of cases in which whistleblower protection has traditionally been available in our courts, and clearly reflect an activist agenda. Former Third Circuit Judge, and now Supreme court Justice Samuel Alito was on the Third Circuit at the time of the McGlaughlin case, which was at the center of the Bailey “shit storm”, and while many other Bailey First Amendment cases wend their way through that Court, and he has been on the Supreme Court and voted in favor of each of the three decisions. The January 7, 2012 New York Times includes an article critical of the Supreme Court’s First Amendment record, and the issues could not be more timely – 2012 does seem ripe to be the year of the whistleblower.
The last significant reform to the civil rights laws by the United States Congress were the Civil Rights Amendments of 1991, which made changes to Title VII of the Civil Right Act of 1964, among other things. Those amendments were made in response to Supreme Court decisions that had curtailed protections in workplace discrimination cases. The Garcetti troika suggests a need for congressional action, legislation along the lines of the discrimination laws, to provide a fair and efficient scheme to protect the balance needed between workplace efficiency and the need for worker whistleblower protection. Courts should not set civil rights agendas, and this Supreme Court clearly has an agenda in the area of exposing government corruption. It is time for Congress to act, and we will continue to try to fashion an appropriate approach to the problem.