210 West Temple Street, 18th floor
Los Angeles, CA 90012
May 14, 2007
The Honorable Senator or Representative
Dear Senator or Representative:
I am pleased to have this opportunity to thank you for the tremendous progress that has been made toward enacting critically important legislation that will ensure protection for government whistleblowers. I urge you and your colleagues to work hard to pass whistleblower protection legislation this session.
I was the plaintiff in Garcetti v. Ceballos, 126 S. Ct. 1951 (2006), a decision that has underscored the need for swift action by Congress. The U.S. Supreme Court held that because I was doing my job as a prosecutor when I reported suspected police misconduct to my supervisors, I could be stripped of my right as a citizen to speak up and report illegal government activity and that my employer was entitled to retaliate against me for doing so.
And while I was the one on the losing end of the Court’s decision, I am not the only one who lost. Millions of federal, state, and local government employees across this country also lost. They lost not only their right to protection against reprisals for is closing instances of corruption, fraud, waste, and mismanagement that they observe in the course and scope of their employment. They also lost their rights to perform their jobs as citizens—citizens who have a genuine interest in ensuring that their government agencies operate fairly, competently, and within the law.
In my case, I was subjected to adverse employment actions simply for doing my job.
As a deputy district attorney serving in the Los Angeles County District Attorney’s Office, empowered to prosecute individuals who have been arrested and charged with crimes, I participate in a process that deprives people of their freedom, potentially sending them to jail or prison for a long time. I am keenly aware of the responsibilities that come with that power, including my constitutional obligation to abide by specific rules of law, evidence, and ethics not demanded of other professions. My job is not simply to win a case or secure a conviction. My job is to seek justice. My profession requires me to make sure that only legally obtained evidence is used to secure a conviction.
In my case before the Supreme Court, I discovered that a deputy sheriff, working together with other deputy sheriffs, had falsified an affidavit submitted to a court to establish the “probable cause” necessary to obtain a search warrant in a particular criminal case. I conducted my own investigation, and my conclusions were confirmed by several of my colleagues in the district attorney’s office. After conferring with them, as well as my supervisors, I prepared a memorandum reporting the suspected misconduct and recommending dismissal of the case against the defendants because of the constitutional violation. It should be noted that, at that time, I was a 12-year veteran of the district attorney’s office and had never made such a recommendation before. I also had a stellar record in the office, receiving repeated “outstanding” performance evaluations by my supervisors.
Because the evidence was compelling that these police officers had lied in order to obtain the search warrant, I felt that I was obligated—by the law, legal ethics rules, and by morality—to make such a recommendation. I was further motivated to take action by the then-unfolding LAPD Rampart Corruption Scandal, in which several rogue Los Angeles police officers were accused of fabricating arrest reports, planting evidence, committing perjury in court, and, in one instance, shooting an unarmed man in the back and paralyzing him. Before the scandal broke, there had been longstanding internal pressure within the district attorney’s office to refrain from questioning the veracity of police officers.
After conferring with my supervisors, I prepared a memorandum, documenting my investigation, legal analysis, opinions, and recommendations. I provided my memorandum to my supervisors following the regular chain of command, in accordance with office policies. Initially, my memorandum and recommendations were met with approval by my supervisors. In fact, one of my supervisors even ordered the release of one of the defendants from custody pending final resolution of the matter.
A copy of my memorandum was forwarded by my supervisor to the Los Angeles County Sheriff’s Department, which employed the police officers who were involved. Shortly thereafter, the Sheriff’s Department requested a meeting with me and my supervisors. At this meeting, Sheriff Department officials branded me as a traitor, accusing me of “acting like a defense attorney or public defender.” They demanded that my supervisors remove me from further handling of the criminal case. Sheriff Department officials noted that if the criminal case were dismissed as I had recommended, their agency might be subject to civil action by the defendants. Not wanting to risk alienating the Sheriff’s Department, my supervisors agreed to its demands and continued prosecuting the criminal case against the defendants.
Shortly thereafter, I began to suffer several adverse employment actions by my office, including a demotion from my supervisory position; a transfer to a more distant and inconvenient branch office; a refusal to assign me murder cases, thereby impairing my promotability; and the denial of a promotion that I had earned.
Now, according to the Supreme Court, government employers are no longer constrained by the First Amendment’s prohibition against punishing their employees for speaking up on matters of public concern—matters that come to the employees’ attention through their employment. Government agencies are now essentially free, as far as the First Amendment is concerned, to retaliate against an employee for reporting instances of corruption, fraud, waste, or mismanagement, so long as the disclosure was made pursuant to that employee’s job duties. First Amendment protection will be afforded, if at all, only to the employee who “goes public,” such as by holding a press conference or making unauthorized contact with the media. The employee who reports government malfeasance through channels of communication established by his employer—such as I did—has now been robbed of constitutional protection from reprisals by the employer who prefers silence and an averted gaze, to the truth.
The Supreme Court’s ruling creates an unacceptable predicament for government employees who witness fraud, corruption, waste, and mismanagement in the workplace: either disclose their observations internally by following the proper chain of command and procedure established by the agency and run the risk that hostile and unsympathetic supervisors will take adverse action against which the employee now has no protection, or run to the press and publicly embarrass government officials to increase their chance of First Amendment protection. For the government to place its employees in this predicament is as illogical as it is untenable.
More realistically, employees have another choice: Keep quiet and say nothing. Many employees will now look the other way and feign ignorance of the government malfeasance and mismanagement that they witness in their workplace. If this occurs, both public employees and the public will have lost. The people will have lost their right to know what is happening in their own government; their right to know what elected and non-elected public officials are doing; their right to know if taxpayer money is being properly spent; and their right to know if public officials are engaging in corrupt or illegal activity.
The Supreme Court’s ruling fosters an atmosphere of secrecy in the halls of government that runs counter to our nation’s open form of governance. It protects the corrupt, the lazy, and the incompetent, while punishing the honest, the hardworking, and the diligent. And because it eliminates protection from employees who speak as part of their employment duties, while leaving that protection in place for other public employees, the Court’s ruling means that only relative “know-nothings” will speak out, while those most likely genuinely to know about serious government corruption or mismanagement—because they confront it within the scope of their job duties—will keep quiet. It is hard to imagine a more perverse outcome.
The Supreme Court’s decision makes it imperative that government employees at all levels of government can count on statutory protection from reprisals when they speak up within their workplaces to disclose government malfeasance. I urge you to amend the federal Whistleblower Protection Act (“WPA”) to ensure that federal employees can depend on that protection. As Justice Souter’s dissenting opinion in my case explains—without any contradiction from the Court’s majority—the WPA suffers from many shortcomings. Foremost among them is the statute’s failure to protect public employees from retaliation when they disclose instances of corruption, fraud, waste, or mismanagement in the course of their job duties or within the chain of command. Enactment of a model statute by Congress could also embolden state and local governments to strengthen their whistleblower protections.
Thank you for your consideration. I stand ready to help in any way that I can.
 The views and opinions expressed in this letter are communicated in my capacity as a citizen. They do not necessarily reflect the views and opinions of the Los Angeles County District Attorney’s Office.