Ruling could put damper on whistleblowers

A U.S. Supreme Court ruling handed down last week could have major consequences for government leaders in Southwest Florida.

In the case of Ceballos vs. Garcetti, the justices ruled that the Constitution doesn't protect public employees against retaliation by their supervisors for anything they say in the course of performing their assigned duties.

"Based on what I've heard so far it changes the rules for public employees and their First Amendment rights," Fort Myers attorney Patrick Geraghty said.

Geraghty represented whistleblower Ernie Scott against the Lee County School Board. Scott sued the district in 2003, saying he was let go after he spoke out about school safety hazards such as fire safety code violations and exposure to asbestos and mold.

In January 2005, the district agreed to pay $565,000 to Scott.

Geraghty said Scott may not have had a case if the lawsuit were filed today because of the precedent set in Ceballos vs. Garcetti.

"That was a First Amendment case," Geraghty said of the Ernie Scott situation. "From my perspective (the Supreme Court ruing) could act as a disincentive for public employees to report wrongdoing."

Naples attorney Samuel Gold is even more blunt than Geraghty when asked about the decision.

"I wasn't surprised (by the ruling), but it's a cataclysmic earth-shattering event," Gold said. "This is a tremendous setback for the First Amendment rights of public employees."

Gold has clients who are former government employees now suing their former public employers. His clients include former Collier County Engineer Mohan Thampi, former Collier Comprehensive Planning Director Stan Litsinger and former Everglades City water and wastewater Plant Manager Lawrence Stone.

Gold said he believes each of those cases can go forward despite the Supreme Court ruling.

Litsinger originally sued Collier County government in federal district court. But earlier this year, that suit was dropped and then refiled in Collier Circuit Court.

Gold said that was done because of Ceballos vs. Garcetti.

The federal case originally alleged that Litsinger's First Amendment rights had been violated, but that claim doesn't appear in the refiled lawsuit.

Litsinger was demoted last year and he alleges that the demotion violated county policy and defamed him. He is asking for undisclosed damages.

Thampi is alleging he was dismissed unfairly because he criticized the management practices of his supervisors and also was critical of wasteful spending by the county administration.

Collier County officials contend Thampi was dismissed because of shoddy work, a refusal to follow orders from supervisors and a bad attitude.

Collier attorneys have asked for a judgment that would essentially dismiss the case against Thampi. In that motion, county attorneys have cited the Supreme Court's ruling.

Stone contends he was fired because he called attention to hazardous situations at the plant, but Everglades officials say Stone was fired due to misconduct.

Assistant Collier County Attorney Jacqueline Hubbard is one of the attorneys representing the county in the Litsinger and Thampi cases.

"I think this was an extremely important decision," Hubbard said. "It's going to have broad ramifications on county governments and it will have an immediate impact on several of the lawsuits we are involved in."

It could be years before the ramifications are known, and it's very possible that the Supreme Court may have to weigh in on the issue again, Hubbard said.

"The decision will probably have a fairly chilling effect on whistleblowers," Hubbard said. "The court strongly supported the government under certain parameters."

John Renner, chief assistant county attorney for Lee County government, said the opinion wasn't as far-reaching as some seem to believe.

"I think it was a case that deals with a fairly narrow First Amendment claim," Renner said. "It doesn't affect whistleblower claims at all."

Lee County doesn't have any cases that would be affected by this ruling, he said.

There are laws that have been passed by the state and federal government that protect whistleblowers and those laws are still in effect, Renner said.

"Every right that whistleblowers have been given still exist," Renner said.

Officials with the American Civil Liberties Union of Florida aren't so sure about that. They warn the decision could discourage whistleblowers from coming forward if they work within government.

"It just makes government less accountable to the public," said Michael Masinter, an attorney who is a member of the Florida ACLU board of directors. "All of us have the right to criticize the government. But if you're criticizing the government because of your position in government, then you have no First Amendment rights."

Government employees should be encouraged to go to their supervisors with concerns of wrongdoing, but this ruling will discourage them from doing that, Masinter said.

"I don't think it's an end-of-the-world decision," Masinter said. "But I certainly wish it would have gone the other way."

The issue that led to the Supreme Court ruling came from the Los Angeles District Attorney's office.

Prosecutor Richard Ceballos alleges he was demoted and was denied a promotion for trying to expose a lie by a sheriff's deputy in a search warrant affidavit.

The 9th U.S. Circuit Court of Appeals in San Francisco ruled that Ceballos' speech, a memo questioning the affidavit, was constitutionally protected under the First Amendment and that Ceballos could pursue a lawsuit.

Government officials appealed the decision to the Supreme Court. Other government agencies, including the Bush administration, joined the case on the side of Los Angeles officials.

In a 5-4 ruling, the justices ruled against Ceballos and in favor of the District Attorney's office.

Chief Justice John Roberts and associate justices Clarence Thomas, Antonin Scalia, Anthony Kennedy and Samuel Alito were in the majority. Associate justices Stephen Breyer, Ruth Bader Ginsberg, John Paul Stevens and David Souter dissented.