Whistleblowers

Whistleblowers Whistleblowers --people who have inside knowledge of an organization -- are often the only way that hidden secrets are revealed. Expose books written by defectors of disillusioned insiders often disclose the "dark secrets," the "skeletons in the closet," the real reasons, the "hidden agenda" which the organization wants to conceal.

Whistleblowers will often narrate their own agonized inner struggle of divided loyalties, their difficult ethical decision to "serve the truth" and "tell all."

Whistleblowers will then be counter-attacked, reviled as disloyal traitors, not worthy to be believed because they betrayed their friends or the Cause; or as bitter, spiteful "disgruntled" employees with a grudge; or as out to make money by their revelations.

In 2004, the most famous examples of whistleblowing (and the firestorm reactions by the Bush administration) included the books by ex-Treasury Secretary Paul O'Neill (Ron Suskind's,The Price of Loyalty) and the former Counterterrorist chief, Richard Clarke, Against All Enemies. Subsequently, during the Iraq War, most revelations about war profiteers were made by whistleblowers.

Such books differ from insider memoirs (such as the memoirs written by Bill and Hiliary Clinton) which usually intensify the positive aspects, and from investigative journalism such as done by Bob Woodward, using confidential sources, whose 9 books range from All the President's Men (1974) about Watergate to Plan of Attack (2004) about inside the White House in the 16 months before the Iraq War.

>>>> On May 30, 2006, the U.S. Supreme Court in an important 5-4 decision related to whistleblowers ruled that the jobs of government employees who are whistleblowers are not protected by their First Amendment rights of free speech. <<<

May 30, 2006: Associated Press
Quotes on whistleblower case
Excerpts from the Supreme Court's 5-4 ruling on government whistleblowers and reaction to the decision.

"Employees who make public statements outside the course of performing their official duties retain some possibility of First Amendment protection because that is the kind of activity engaged in by citizens who do not work for the government. The same goes for writing a letter to a local newspaper or discussing politics with a co-worker. When a public employee speaks pursuant to employment responsibilities, however, there is no relevant analogue to speech by citizens who are not government employees." -Justice Anthony M. Kennedy, writing for the majority.
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"The proper answer to the question `whether the First Amendment protects a government employee from discipline based on speech made pursuant to the employee's official duties,' is `Sometimes,' not `Never.' Of course a supervisor may take corrective action when such speech is `inflammatory or misguided.' But what if it is just unwelcome speech because it reveals facts that the supervisor would rather not have anyone else discover?" -Justice John Paul Stevens, in dissent.
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"In an age of excessive government secrecy, the Supreme Court has made it easier to engage in a government cover-up by discouraging internal whistleblowing." -Steven Shapiro, national legal director for the American Civil Liberties Union.
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"This significant, albeit qualified, protection of public employees who irritate the government is understood to flow from the First Amendment, in part, because a government paycheck does nothing to eliminate the value to an individual of speaking on public matters, and there is no good reason for categorically discounting a speaker's interest in commenting on a matter of public concern just because the government employs him. Still, the First Amendment safeguard rests on something more, being the value to the public of receiving the opinions and information that a public employee may disclose." -Justice David H. Souter, in a dissent.
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"It's not the role of the First Amendment to be an all-purpose whistleblower law." -Gene Schaerr, a Washington attorney who filed a friend-of-court brief on behalf of the International Municipal Lawyers Association.
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"I'm disappointed. I think the court's ruling clearly strikes a blow to all government employees. It creates a disincentive for government employees to report misconduct, waste or fraud that they witness." -Richard Ceballos, the whistleblower in the case.
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"It could be the end of the case, if the client wants to put it behind him. I think if we continue fighting it, we will prevail." -Humberto Guizar, Ceballos' lawyer in Montebello, Calif.
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"The speech of vast numbers of public employees deals with wrongdoing, health, safety, and honesty; for example, police officers, firefighters, environmental protection agents, building inspectors, hospital workers, bank regulators, and so on. Indeed, this categorization could encompass speech by an employee performing almost any public function, except perhaps setting electricity rates." -Justice Stephen Breyer, in a dissent.
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"It will enable management to be more honest and candid in its personnel actions." -Employment attorney Dan Westman.
"Government workers who expose official misconduct deserve praise, not punishment. This ruling points out the need for tougher laws to protect whistleblowers." -Sen. Frank Lautenberg, D-N.J.
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"We need not, and for that reason do not, decide whether the analysis we conduct today would apply in the same manner to a case involving speech related to scholarship or teaching." -Kennedy, in the majority opinion.
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"This decision gives constitutional sanction to those who would fire a public worker for stepping forward to preserve the integrity of our public institutions as a government whistleblower." -Gerald McEntee, president of the American Federation of State, County and Municipal Employees.

Top

City Hall needs whistle-blowers
L.A. controller Laura Chick says a Supreme Court decision
is bad news for the good guys in government.
Op Ed | Los Angeles Times | June 3, 2006 | By Laura N. Chick
LAURA N. CHICK is the Los Angeles city controller.

THE PROTECTIVE blanket of the 1st Amendment just unraveled a little more when the Supreme Court ruled this week that the nation's 21 million public employees are not fully protected by it.

The 5-4 decision essentially says that government employees can be fired or demoted if they reveal information about wrongdoing to their co-workers, to management or possibly to government investigators.

This decision sends a terrible message and could be deeply damaging to efforts to fight fraud, abuse and corruption. Almost half of all fraud detection in government agencies is estimated to come from tips, very often received through whistle-blowers. The 1994 Supreme Court decision in Waters vs. Churchill recognized this, stating that "government employees are often in the best position to know what ails the agencies for which they work."

My office, which is charged, among other things, with rooting out fraud and waste in the Los Angeles city government, routinely receives credible whistle-blower information from city employees. In the last five years we have conducted more than 100 audits and investigations, and I can tell you that if we had not offered protection and anonymity to whistle-blowers, the results would have been less than fruitful.

It's not yet clear exactly what the effect of the court's decision will be on our operations, but we're worried. I have asked the city attorney for an opinion on what the legal effect will be on existing city ordinances protecting whistle-blowers. At the very least, it will make people that much more worried about coming forward.

Let me offer a few examples of cases in which whistle-blowers have helped us crack down on wrongdoing.

In 2003, while auditing the Los Angeles Airport Department, my office received information from airport staff regarding potential wrongdoing in the awarding of millions of dollars of public contracts. In confidential interviews, these employees painted a picture of a department ripe for fraud and abuse, revealing examples of irregularities and inconsistencies that we otherwise would not have known about.

We offered them anonymity and they, in turn, provided the essential information we needed for our preliminary investigation, which I eventually turned over to the U.S. and district attorneys. A federal grand jury investigation is ongoing.

As a result of our audit, reforms were enacted to keep city commissioners from inappropriately influencing the awarding of contracts. Commissioners were also banned from raising money for candidates running for city office, eliminating the appearance of coercion or pressure on those seeking to do business with the city.

Our audit of the Port of Los Angeles also relied on whistle-blowers, some so fearful of reprisals that they would not speak to our auditors on port property. The Harbor Commission president at the time was not happy about the audit — which uncovered leasing irregularities — and he made a public records request for the working papers and documents we had used. He voiced loud disapproval that the names of employees who had spoken to us were redacted from the interviews. He then tried to conduct his own audit to determine which employees had said what.

Then there were the employees at the Los Angeles Department of Water and Power who came forward to our office with concerns regarding a $27-million contract with the giant public relations firm Fleishman-Hillard.

With the additional help of Fleishman-Hillard employees, the U.S. attorney last month successfully prosecuted a case of fraudulent overbilling.

From every corner of our city, employees have felt increased confidence about speaking out in the face of government wrongdoing. They also have felt protected from retaliation.

Let there be no doubt. If employees are no longer protected by the 1st Amendment when they speak out, then precious sources of information will wither away.

Last year, when the City Council authorized my office to create a special unit dedicated to tracking down waste and fraud, it instructed the chief legislative analyst to work with the city attorney to draft a resolution protecting whistle-blowers from retaliation even if they use a city computer during work hours to make the report. Now more than ever, we must find ways to encourage employees to come forward. Congress is considering SB 484 by Sens. Daniel Akaka (D-Hawaii) and Susan Collins (R-Maine), which would strengthen whistle-blower protections for federal employees. Though it was passed out of committee, it has been blocked by the Justice Department and is now languishing.

Let's use this Supreme Court decision as the impetus to move this needed legislation forward.