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Public Safety Employees First Amendment Rights Protected - Stronger Whistleblower Protection

Just when you were thinking you had some protection when you reported wrongdoing in your department, the Supreme Court ruled recently there is a stronger shield for public employees from punishment or terminations if they testified in court against their superiors. As a firefighter, your First Amendment rights protects those who tell the truth and reveal corruption and your First Amendment Rights are found in the Bill of Rights (of the US Constitution) and prohibits the making of any law abridging the freedom of speech. Many states in their Constitutions have similar protections and in some cases stronger protections for those employees who report government (i.e. fire departments) wrongdoing.

As firefighters we always thought we were protected against retaliation for reporting wrongdoing under the Whistleblower Act which states there are protections from adverse actions against workers which include getting fired or laid off; demotions, denial of overtime or promotions, discipline for the reporting or wrong doing and other similar protections against adverse work related actions. You have to remember the Whistleblower Protection Act of 1989,  is a United States federal law that protects federal whistleblowers who work for the government and report agency misconduct. A federal agency violates the Whistleblower Protection Act if agency authorities take (or threaten to take) retaliatory personnel action against any employee or applicant because of disclosure of information by that employee or applicant. Did that leave you out in the cold when reporting such wrongdoing because you were not a federal employee?

This case decided in a 9-0 decision indicates such testimony of a non-federal government employee is “speech as a citizen for First Amendment purposes” and deserves to be protected. The ruling revives a lawsuit by a former Alabama community-college official who testified against an influential state legislator who was drawing a paycheck from the college but doing no work. After his testimony, the college official was fired. The former official, alleging that he was fired for telling the truth in violation of the First Amendment and sued his employer, the Community College.

In a 2006 case, Garcetti v. Ceballos, the court had said the First Amendment does not protect internal whistle-blowers who speak about matters involving “their official duties.” That case arose when a deputy prosecutor disagreed with his superiors over the use of a search warrant and spoke out about the dispute. In Thursday’s opinion, the justices retreated somewhat from their earlier ruling indicating testifying in court is protected because it is not part of an employee’s “ordinary job duties.”  Justice Sonia Sotomayor said public employees who are called to testify in a corruption probe have an “independent obligation” to tell the truth, which “sets it apart” from speaking out about a workplace dispute. Denying First Amendment protection “would place public employees who witness corruption in an impossible position, torn between the obligation to testify truthfully and the desire to avoid retaliation and keep their jobs,” she said.

The bottom line is that as public employees, we have an obligation to report wrongdoing of our employers. This is not only a moral and ethical obligation, but may be included in your Honor Codes or Code of Conduct. In any event, this ruling will also place on notice those employers who believe that there should be an institutional code of silence and not report wrongdoing. This recent Supreme Court Ruling provides another level of protection for our firefighters.

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