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WHAT PRICE FREE SPEECH?

WHISTLEBLOWERS AND THE

CEBALLOS DECISION

HEARING

BEFORE THE

COMMITTEE ON

GOVERNMENT REFORM

HOUSE OF REPRESENTATIVES

ONE HUNDRED NINTH CONGRESS

SECOND SESSION

JUNE 29, 2006

Serial No. 109–161

Printed for the use of the Committee on Government Reform

(

Available via the World Wide Web: http://www.gpoaccess.gov/congress/index.html

http://www.house.gov/reform

(II)

COMMITTEE ON GOVERNMENT REFORM

TOM DAVIS, Virginia, Chairman

CHRISTOPHER SHAYS, Connecticut

DAN BURTON, Indiana

ILEANA ROS-LEHTINEN, Florida

JOHN M. MCHUGH, New York

JOHN L. MICA, Florida

GIL GUTKNECHT, Minnesota

MARK E. SOUDER, Indiana

STEVEN C. LATOURETTE, Ohio

TODD RUSSELL PLATTS, Pennsylvania

CHRIS CANNON, Utah

JOHN J. DUNCAN, JR., Tennessee

CANDICE S. MILLER, Michigan

MICHAEL R. TURNER, Ohio

DARRELL E. ISSA, California

JON C. PORTER, Nevada

KENNY MARCHANT, Texas

LYNN A. WESTMORELAND, Georgia

PATRICK T. MCHENRY, North Carolina

CHARLES W. DENT, Pennsylvania

VIRGINIA FOXX, North Carolina

JEAN SCHMIDT, Ohio

BRIAN P. BILBRAY, California

HENRY A. WAXMAN, California

TOM LANTOS, California

MAJOR R. OWENS, New York

EDOLPHUS TOWNS, New York

PAUL E. KANJORSKI, Pennsylvania

CAROLYN B. MALONEY, New York

ELIJAH E. CUMMINGS, Maryland

DENNIS J. KUCINICH, Ohio

DANNY K. DAVIS, Illinois

WM. LACY CLAY, Missouri

DIANE E. WATSON, California

STEPHEN F. LYNCH, Massachusetts

CHRIS VAN HOLLEN, Maryland

LINDA T. SANCHEZ, California

C.A. DUTCH RUPPERSBERGER, Maryland

BRIAN HIGGINS, New York

ELEANOR HOLMES NORTON, District of

Columbia

———

BERNARD SANDERS, Vermont

(Independent)

DAVID MARIN, Staff Director

LAWRENCE HALLORAN, Deputy Staff Director

TERESA AUSTIN, Chief Clerk

PHIL BARNETT, Minority Chief of Staff/Chief Counsel

(III)

C O N T E N T S

Page

Hearing held on June 29, 2006 ............................................................................... 1

Statement of:

Ceballos, Richard, deputy district attorney, Los Angeles County District

Attorney’s Office; William Bransford, general counsel, Senior Executives Association; Mimi Dash, council president, Fairfax Education Association, retired; Lisa Soronen, staff attorney, National School Boards

Association; Barbara Atkin, deputy general counsel, National Treasury

Employees Union; Richard Bergstrom, counsel, Morrison & Foerster;

and Joseph Goldberg, American Federation of Government Employees .. 71

Atkin, Barbara ........................................................................................... 102

Bergstrom, Richard ................................................................................... 115

Bransford, William .................................................................................... 76

Ceballos, Richard ....................................................................................... 71

Dash, Mimi ................................................................................................ 83

Goldberg, Joseph ....................................................................................... 207

Soronen, Lisa ............................................................................................. 87

Kohn, Stephen M., Chair, National Whistleblowers Center; and Roger

Pilon, vice president for legal affairs, CATO Institute .............................. 26

Kohn, Stephen M. ...................................................................................... 26

Pilon, Roger ................................................................................................ 53

Letters, statements, etc., submitted for the record by:

Atkin, Barbara, deputy general counsel, National Treasury Employees

Union, prepared statement of ...................................................................... 104

Bergstrom, Richard, counsel, Morrison & Foerster, prepared statement

of ..................................................................................................................... 117

Bransford, William, general counsel, Senior Executives Association, prepared statement of ........................................................................................ 78

Ceballos, Richard, deputy district attorney, Los Angeles County District

Attorney’s Office, prepared statement of .................................................... 73

Cummings, Hon. Elijah E., a Representative in Congress from the State

of Maryland, prepared statement of ............................................................ 22

Dash, Mimi, council president, Fairfax Education Association, retired,

prepared statement of ................................................................................... 85

Davis, Chairman Tom, a Representative in Congress from the State of

Virginia, prepared statement of ................................................................... 6

Goldberg, Joseph, American Federation of Government Employees, prepared statement of ........................................................................................ 208

Kohn, Stephen M., Chair, National Whistleblowers Center, prepared

statement of ................................................................................................... 28

Pilon, Roger, vice president for legal affairs, CATO Institute, prepared

statement of ................................................................................................... 55

Porter, Hon. Jon C., a Representative in Congress from the State of

Nevada, prepared statement of .................................................................... 221

Soronen, Lisa staff attorney, National School Boards Association, prepared statement of ........................................................................................ 90

Waxman, Hon. Henry A., a Representative in Congress from the State

of California, prepared statement of ........................................................... 13

(1)

WHAT PRICE FREE SPEECH? WHISTLEBLOWERS AND THE CEBALLOS DECISION

THURSDAY, JUNE 29, 2006

HOUSE OF REPRESENTATIVES, COMMITTEE ON GOVERNMENT REFORM, Washington, DC.

The committee met, pursuant to notice, at 11:51 a.m., in room

2154, Rayburn House Office Building, Hon. Tom Davis (chairman

of the committee) presiding.

Present: Representatives Tom Davis, Shays, Platts, Issa, Dent,

Schmidt, Waxman, Maloney, Cummings, Kucinich, Clay, Watson,

Van Hollen, Ruppersberger, and Norton.

Staff present: Keith Ausbrook, chief counsel; Jim Moore and A.

Brooke Bennett, counsels; Rob White, communications director; Andrea LeBlanc, deputy director of communications; Teresa Austin,

chief clerk; Sarah D’Orsie, deputy clerk; Phil Barnett, minority

staff director/chief counsel; Kristin Amerling, minority general

counsel; Michelle Ash, minority chief legislative counsel; Margaret

Daum and Kim Trinca, minority counsels; David Rapallo, minority

chief investigative counsel; Shaun Garrison and Mark Stephenson,

minority professional staff members; Earley Green, minority chief

clerk; and Jean Gosa, minority assistant clerk.

Chairman TOM DAVIS. The committee will come to order.

Before we begin the hearing, I want to ask Mr. Shays and Mr.

Waxman to join me in putting an important matter on the record.

Mr. Shays.

Mr. SHAYS. Thank you, Mr. Chairman. Because this is a hearing

about whistleblower rights, I want to put on the record that Mr.

Waxman and I have requested that the chairman issue a subpoena

to the Department of Defense for information about Abu Ghraib

Prison and allegations of retaliation against Specialist Samuel

Provance. Specialist Provance was stationed at the prison in Iraq,

and he testified before the National Security Subcommittee about

his efforts to report what he had heard about abuses there. I want

to thank you, Mr. Chairman, for agreeing to our subpoena request.

On March 7th, Mr. Waxman and I sent a letter to DOD regarding this matter to Secretary Rumsfeld and Director Goss, and another separate, different, letter just to Secretary Rumsfeld. I ask

unanimous consent that both letters be made part of this hearing

record.

Chairman TOM DAVIS. Without objection.

Mr. SHAYS. We asked for a response by April 21st. Staff has repeatedly called, but to date we have no meaningful engagement

from the Department on the subcommittee’s request.

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Recently we learned the House Armed Services Committee has

one of the unredacted documents requested, and we appreciate

their help and look forward to their support going forward. But it

is critical that our oversight inquiry is being taken seriously by executive branch departments, and that we get timely access to the

information we need to do our job.

So again, I thank you. I appreciate, Mr. Chairman, your willingness to proceed in this effort and help us with our oversight. And,

obviously, I thank Mr. Waxman for his patience in a request that

we both think is meritorious and deserves to be responded to.

Chairman TOM DAVIS. Thank you.

Mr. Waxman.

Mr. WAXMAN. Mr. Chairman, I would like to thank you and

Chairman Shays for agreeing to my request to subpoena Defense

Secretary Rumsfeld. I would also like to make clear for the record

why this subpoena is now necessary.

I’ve been working on Sergeant Provance’s case since last fall. He

first came to my attention as a result of press reports that the U.S.

Military had allegedly used the children of detainees at Abu Ghraib

in order to break the detainees during their interrogation. But

rather than investigate Sergeant Provance’s claim, the military ignored him, told him he could be prosecuted for not coming forward

sooner, and then demoted him and pulled his security clearance. So

last December, when the National Security Subcommittee was considering holding a hearing on national security whistleblowers, I

requested that Sergeant Provance be invited to testify. That hearing happened on February 14th of this year, and Sergeant

Provance was able to fly back from Germany to testify.

Sergeant Provance’s testimony was gripping and disturbing. I

would like to make an excerpt of the transcript of that hearing part

of today’s hearing.

Chairman TOM DAVIS. Without objection so ordered.

Mr. WAXMAN. After hearing these serious allegations, I requested

that the subcommittee send two letters to the Defense Department

requesting documents. The first letter sought information about

Sergeant Provance’s subsequent claims of abuse at Abu Ghraib,

and the second about any retaliation taken against him. Chairman

Shays agreed, and on March 7th we sent those letters with a deadline of April 21st. That deadline came and went, and since that

date the Defense Department’s responses have been absolutely deficient. The Department’s response on the abuses of Abu Ghraib

have been simply nonexistent. We asked for a host of documents

ranging from information about children at Abu Ghraib to drafts

and interview notes relating to the Fay/Jones report on detainee

abuse. We also asked for an unredacted copy of Sergeant

Provance’s February testimony to our committee; it turned out the

Pentagon redacted parts of it before he testified here.

To this date and after more than 3 months, there has been no

substantive response from the Department. No documents have

been provided. To their credit, the majority staff followed up nearly

a dozen times with telephone calls and e-mails, without success.

On the second request for documents relating to retaliation

against Sergeant Provance, the Department took an untenable and

ridiculously narrow approach to what it did provide. We asked for

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a wide range of documents relating to disciplinary actions taken

against Sergeant Provance. We wanted to know why commanders

issued a written gag order only to Sergeant Provance; how they became aware of his contacts with the media; and the manner in

which they decided to punish him for his actions. The request included all communications, e-mails, papers, and notes from all Department employees.

Last Tuesday, as soon as they found out we were having today’s

hearing, Department officials finally responded. They produced a

total of nine documents, three of which we already had, and three

of which were identical except for the signatures. Obviously, the response was completely inadequate.

So, again, I thank Chairman Davis and Chairman Shays for disagreeing to this request. We worked together in a bipartisan manner to refine the language of this subpoena, and as a result, I hope

the Pentagon will take a careful look at their actions, go back and

review the documents in an honest way and allow us to exercise

our constitutional oversight responsibilities effectively.

Thank you, Mr. Chairman.

Chairman TOM DAVIS. Thank you, Mr. Waxman.

You know, when the committee requests information from the executive branch departments and agencies, we try to be reasonable;

we try to accommodate the legitimate concerns about the volume

and sensitivity of what we’re asking for. But if the Department

won’t even return a call after 3 months and begin that dialog, we

really have no choice but to subpoena the material and compel

their attention to our request.

In this case, the Armed Services Committee has offered the subcommittee access to some of the material in question, and we appreciate their help. But the Pentagon has documents we need to

fully understand: how the soldier was treated after he tried to report; and what he learned about prison abuse in Iraq.

I thank the gentlemen for their work on these whistleblower

issues. We’re going to continue to work with them, and we’re going

to get this information we need from the Department of Defense.

I want to welcome everybody again to today’s hearing on the recent Supreme Court decision in the case Garcetti v. Ceballos. In

one sense, this case is familiar. Mr. Ceballos prepared a memorandum about activities within the Los Angeles Police Department and

the District Attorney’s Office, with which his supervisors disagreed,

and he subsequently experienced perceived adverse employment actions. But in this case, rather than bringing his lawsuit under statutory whistleblower protections, Mr. Ceballos claimed that his

statements should be constitutionally protected by the first amendment.

The Supreme Court disagreed, but only just disagreed in a 5–4

decision written by Justice Kennedy. The court concluded that Mr.

Ceballos’ statements were not entitled to first amendment protections because they were made pursuant to his official employment

duties. This decision was met with some fairly extreme headlines.

For example, a New York Times headline read, ‘‘Some Whistleblowers Lose Free Speech Protections’’. The Washington Post reported, ‘‘High Court’s Free Speech Ruling Favors Government: Public Workers on Duty Not Protected.’’ and the Chicago Tribune reVerDate 11-MAY-2000 11:50 Jan 16, 2007 Jkt 000000 PO 00000 Frm 00007 Fmt 6633 Sfmt 6633 D:\DOCS\28966.TXT HGOVREF1 PsN: HGOVREF1
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ported, ‘‘High Court Curbs Free Speech Rights of Public Workers

on the Job.’’

Maybe they have a point, but anytime the papers start announcing wholesale rollbacks of whistleblowers’ protections, I get concerned, and so should each member of this committee. And that is

why we are here today: to understand what this case decided, the

grounds on which it was decided, and what it means for the rights

and interests of all whistleblowers, Federal and State.

In my two terms as committee chairman, we’ve worked hard to

improve whistleblowers’ rights. It hasn’t been an easy process, but

we’ve made some real progress. For instance, Mr. Platts’ bill, H.R.

1317, which we passed out of this committee, grants Federal whistleblowers an alternative course of action in the Federal district

courts nationwide if their claims of retaliation are not adjudicated

quickly. This is a truly landmark advancement for whistleblowers.

This committee also adopted important new protections for those

exposing wrongdoing in classified programs, national security whistleblowers. As part of our Bipartisan executive branch Reform Act,

H.R. 5112, we gave those entrusted with the Nation’s secrets meaningful recourse against subtle forms of retaliation practiced in their

closed world, like security clearance revocation.

Whistleblowers often play an important role in exposing government misconduct. Protecting honest, hardworking Federal employees is important to me, and that’s why the headlines I mention are

troubling.

From a practical standpoint, the decision and the reporting that

followed the decision may give whistleblowers the impression that

they’re better off just taking their problems to the press. Some people might be OK with that, but the real goal should be the creation

of a workplace environment where employees feel free to discuss

waste, fraud and abuse with employers, and employers feel more

comfortable fixing the problem than covering it up. We need better

government, not more headlines.

We hope to learn much from today’s hearing. For example, why

did Mr. Ceballos choose to raise his claim under the first amendment? As a State employee in California, what other avenues were

available, and why were they seemingly less attractive? How common is the workplace situation that he faced, and does this arise

in other areas of public employment, such as education? And how

similar are these experiences to those of Federal employees?

But more than anything, it’s important for whistleblowers to

know they are still protected from retaliation when they blow the

whistle and bring public attention to waste, fraud, and abuse.

It’s also important that employers have clear guidelines delineating right and wrong behavior. We will examine whether the

Ceballos decision accomplished either goal.

In the context of government employees, disagreements about

how to do a certain job can have profound public consequences. I’m

reminded of Benjamin Franklin saying that for want of a nail, a

shoe was lost; for the want of a shoe, a horse was lost; for the want

of a horse, the rider was lost—and so on, slain by the enemy.

The inability of government workers to express their concerns

about the smallest of issues involving their jobs—the nails—can

lead to the greatest of harms: defeat by an enemy. We need to give

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appropriate protection to those workers while allowing managers

the freedom to manage.

I will now recognize the distinguished ranking member, Mr.

Waxman.

[The prepared statement of Chairman Tom Davis follows:]

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Mr. WAXMAN. Thank you, Mr. Chairman.

The recent Supreme Court in Garcetti v. Ceballos raises serious

issues regarding the first amendment free speech rights of government employees and how statutory whistleblower protections are

affected by this decision.

Mr. Ceballos was an attorney for the L.A. County District Attorney’s Office. In the course of his duties, he became aware of significant misstatements in an affidavit used to obtain a search warrant.

He examined the affidavit, conducted an investigation, and wrote

a memorandum to his superiors concluding that the affidavit contained serious misrepresentations, and recommending dismissal of

the case. Mr. Ceballos’ supervisors decided to proceed with the

case, despite his findings.

In the aftermath of these events, Mr. Ceballos claimed he was

subjected to a series of retaliatory employee actions, including reassignment, transfer, and denial of promotion. After pursuing other

legal remedies, Mr. Ceballos sued his employer for violating his

first amendment rights by retaliating against him based on his

memorandum.

In its decision, the Supreme Court held that Mr. Ceballos’ first

amendment rights had not been violated. It found that the first

amendment protects the speech of a government employee when

that employee is expressing an opinion as a citizen on a matter of

public concern, but because Mr. Ceballos’ memorandum was written pursuant to his duties as a prosecutor, the court found that he

was speaking as an employee, not a citizen. He was, therefore, not

protected from retaliation because the first amendment does not

prohibit managerial discipline based on an employee’s work product.

Leaving aside what Justice Stevens in his dissent called a perverse rule, namely, one that gives employees an incentive to voice

their concerns publicly before talking to their superiors, the court

noted that government employees are protected and would continue

to be protected by Federal and State whistleblower laws.

Unfortunately, I cannot agree with the court. The Merit Systems

Protection Board and the Federal circuit court have issued confusing opinions on whether disclosures made in the normal course of

an employee’s official duties are protected. Government whistleblowers should be protected, and their disclosure of waste, fraud,

and abuse should be encouraged. But under this administration

and recent precedents, the current statutory protections for Federal

whistleblowers have developed gaping loopholes. That’s why new

Federal legislation is so urgently needed.

To its credit, this committee has acted twice, this Congress, to report new whistleblower protections to the full House. Last fall, we

considered H.R. 1317, the Federal Employees Protection of Disclosure Act. This legislation contains a series of important reforms, including reforms that would provide protection to whistleblowers

like Mr. Ceballos who disclose wrongdoing in the course of their

employment. And earlier this year we passed H.R. 5112, which contained provisions providing whistleblower protections to national

security whistleblowers. For the first time, this legislation would

provide genuine remedies for these courageous employees.

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The Senate has also acted on this issue. As part of this year’s defense authorization bill, it has included language substantially

similar to H.R. 1317.

Mr. Chairman, we must do all we can in the light of the Ceballos

decision to ensure that government whistleblowers are protected

from retaliation. The legislation that we have reported is a good

start, but our efforts will amount to little if they are not taken up

by the full House or included in the final conference report.

Thank you, Mr. Chairman.

Chairman TOM DAVIS. I agree, Mr. Waxman. Thank you very

much.

[The prepared statement of Hon. Henry A. Waxman follows:]

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Chairman TOM DAVIS. Mr. Platts.

Mr. PLATTS. Mr. Chairman, I yield to the gentleman from Connecticut.

Mr. SHAYS. Just very briefly, Mr. Chairman—because I have to

meet someone and I’ll be back—but I think this is an extraordinarily important hearing. When an administration wants more

power, you need to make sure three things happen; one, you have

a strong Civil Liberties Board, which we don’t yet have; second you

have a whistleblower process that works; and third, that you have

strong congressional oversight. We’re doing the strong congressional oversight. We need to improve the whistleblower statute and

process, and we need to improve the Civil Liberties Board. And I

thank the gentleman for yielding to me. Thank you.

Mr. PLATTS. Thank you, Mr. Shays.

Mr. Chairman, I want to thank you for convening this hearing

so we have a better understanding of the Ceballos decision and its

implication for whistleblowers. I also want to thank you for your

longstanding assistance and partnership with me as we try to

shore up and expand whistleblower protections for Federal employees who courageously expose waste, fraud, and abuse or threats to

the safety of our fellow citizens.

Last year, on September 29th, we passed out of this committee

bipartisan legislation that I had introduced, H.R. 1317, the Federal

Employee Protection of Disclosures Act, to reinforce and extend

protections for Federal employees who blow the whistle on improper actions that undermine our government.

Companion legislation in the Senate, the Senate bill 494 was approved unanimously by the Senate Committee on Homeland Security and Governmental Affairs on May 25th. And just last Thursday, June 22nd, Senators Akaka and Collins successfully incorporated S. 494 into the Senate defense authorization bill.

In the Ceballos decision, the Supreme Court held that public employees blowing the whistle in their official duties are not protected

by the first amendment. Instead, the speech in their official capacity is protected by whistleblower rights provided by law. In opting

not to create a right under the first amendment for whistleblowers,

Ceballos emphasizes the importance of the strength of existing protections provided by statute.

The Ceballos decision is Congress’ wake-up call, Mr. Chairman,

to strengthen whistleblower protections under the law.

Ceballos means that statutory protections are whistleblowers’

one and only shot at due process and protection from retaliation.

The decision does not necessarily weaken Federal whistleblower

protections, but it certainly demonstrates the importance of reinforcing current protections.

In effect, Ceballos tells us that statutory protections are a whistleblower’s last and sometimes only recourse to seek protection

from retribution. Congress, therefore, has the responsibility to ensure that Federal whistleblower protections are clear, strong, and

without loopholes.

I’m hopeful that this hearing will attract more attention to the

importance of improving protections for whistleblowers. It is my

sincere hope also that this hearing will help us to move quickly to

floor consideration of H.R. 1317.

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The Ceballos decision has sent us a clear message to strengthen

whistleblower protections, and I sincerely hope that we listen, and,

more importantly, that the House acts on H.R. 1317.

I yield back the balance of my time.

Chairman TOM DAVIS. Well, thank you very much.

Any other Members who have statements for the record? Mrs.—

we want to move ahead, but we’ll let the Members make brief

statements. All Members will have 7 days to submit opening statements for the record.

Ms. Watson was here first.

Ms. WATSON. Thank you so much, Mr. Chairman, for holding this

important hearing that addresses issues concerning protecting the

employee rights throughout our Nation. And I would like to thank

our witnesses for their testimony.

We’re here today to discuss the Garcetti v. Ceballos decision that

took place or started right in the district right next to mine in Los

Angeles and its impact on whistleblower protection.

In our discussion we’ll be working to reassure the Americans

that the principles of free speech and equal rights for all that our

Nation is built upon will be protected in the workplace.

Whistleblower protection allows Federal employees to make protected disclosures of government information to appropriate parties

and not face retaliation for their actions. Federal and State employees rely heavily on the first amendment for whistleblower protection. Our public service employees should be able to defend themselves against retaliation for disclosures made in the course of their

official duties. We must work to expand whistleblower protections

to Federal employees so that they have the right to work without

the fear of retaliation.

Congress must foster an environment that encourages employees

to come forward with knowledge of actions or policies detrimental

to our democratic values. This vision cannot be realized if workers

possessing crucial information are stymied by fear of reprisal or if

they are choked by inflexible rules and regulations.

Mr. Chairman, we often forget our government is made up of the

people, people who have often chosen a career in government because they have chosen to forego more lucrative careers to serve

their country. We must continue to recruit and retain the best and

the brightest for government service. In doing so, we must also ensure that they will be protected from scrutiny and embarrassment

in the workplace.

I yield back.

Chairman TOM DAVIS. Thank you.

Ms. Norton first.

Ms. NORTON. Thank you, Mr. Chairman. I very much appreciate

your not letting too much time go by after the Ceballos decision to

figure out where Federal employees stand when it comes to whistleblowing. I certainly hope that Justice Kennedy is right when he

compares them to our own whistleblower statutes. It’s very interesting, given the first amendment basis of the decision.

Mr. Chairman, this is really no time to allow any doubt about

whistleblower laws. When they were originally passed, the catch

words, ‘‘fraud, waste and abuse’’ I believe most propelled them. But

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today I think the most important reason for whistleblower laws

really goes to the safety and security of our country.

I want to thank you, Mr. Chairman, for working with me when

TSA employees were left out of whistleblower protection in the

Federal Employees Protection and Disclosure Act, which we are reporting out. That was not our intent, and that’s been corrected,

and, most important, considering that we’re talking about TSA employees who are the screeners.

Also in that bill, Mr. Chairman, we overturned the Federal circuit’s standard, the so-called irrefragable proof standard, and have

returned to a substantial evidence standard when it comes to judging whether or not an employee is entitled to come forward without

retaliation.

I’m very troubled, though, that the Federal circuit decision stood

since 1999. Consider that is precisely the September 11th period,

it makes you wonder, it almost makes you shiver, particularly

when you realize that only one of I believe 96 such decisions were

found to be recognizable by the court in that period. So you have

to ask yourself whether or not during that period there was an absolute deterrent for whistleblowers to come forward right when I

think most would agree we needed them.

So here now comes the Supreme Court, and I am troubled. I

agree with the ranking member that this may be more serious than

we’d like to think. At least we need to clarify and get this committee on record, as you are doing today, Mr. Chairman, and discerning whether or not there is anything we need to do.

I understand, you know, the need to make sure that employees

do not engage in insubordination, but I can’t quite figure out this

distinction between going on and speaking publicly and doing what

Ceballos did, which is write a memorandum in normal order in

order to get the attention of his superiors before they committed

what he believed to be an error of the kind you don’t want to occur

in the criminal justice system. It’s very, very troublesome. Apparently, if he had gone out and blown the whistle on them in public,

that would have been all right. Very, very hard to understand.

Above all, Mr. Chairman, I want to stress how important protections against retaliation are. When I chaired the EOC, I was very

bothered by the practical effect of the retaliation provision, which

I understood to be absolutely necessary. The practical effect is you

will get a lot of people coming forward with notions of one kind or

another that aren’t valid because they know at the very least you

can’t retaliate against them. But it seemed to me there was no way

around that; that whatever they come forward with, even if they

are frivolous, retaliation certainly is not the response that the

agency would want to send out.

And without a retaliation provision that is solid, so that people

know that if they work in TSA or in Homeland Security they can

risk saying this, if they work in the CIA, they can risk reporting

this, without that what you’re going to have is people doing more

leaks, and you’re going to have fewer and fewer people coming forward in any case.

Thank you, Mr. Chairman.

Chairman TOM DAVIS. Thank you very much.

I have Mr. Cummings.

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Mr. CUMMINGS. Thank you very much, Mr. Chairman. I’ll be

brief. I understand the time constraints, but I wanted to just say

a few words here, Mr. Chairman.

I’m all too familiar with the vital role whistleblowers play. I’m

also familiar with the compelling reasons why we should protect

them. Earlier this week, Mr. Souder and I, as Chair and ranking

member of the Subcommittee on Criminal Justice, Drug Policy, and

Human Resources, held a hearing to examine a Government Accountability Office report on clinical lab safety. That is every single

lab, health lab associated with hospitals in this country. I won’t get

into the details here, but the GAO findings were noteworthy and

uncovered serious deficiencies in the way clinical labs across the

Nation are inspected, concluding it could not attest to the quality

of those labs. To be sure, Ms. Leslie Aaronovitz indicated that she

would not be comfortable with having her family rely on results

from any clinical lab in this country.

Clearly we must address this situation. I look forward to working

with the Centers for Medicare and Medicaid Services and the appropriated accrediting organizations to remedy the problems that

GAO uncovered. But we would not have even known to investigate

this problem had it not been for this woman named Kristen Turner.

Ms. Turner is what you call a whistleblower. As a clinical technician in Maryland General Hospital in Baltimore, Ms. Turner had

been an outspoken critic of the way the hospital’s labs were run.

She spoke out to supervisors, hospital leadership, and anyone in

authority about the dangers of the professional setting in which

she worked. Sadly, no one listened. It it was not until Ms. Turner

alerted the Baltimore Sun to the horrific conditions at the Maryland General Hospital that people’s ears began to perk. And it was

later discovered that over 2,000 patients in Maryland General had

gotten faulty HIV and Hepatitis C results.

Ms. Turner paid for her efforts with her health and her job. I’m

determined to honor her sacrifice. That is why I’m determined not

to only address deficiencies in our clinical labs, but to also protect

whistleblowers in the public and private sectors.

We are working with accrediting organizations to encourage clinical lab workers like Ms. Turner to come forward by posting signs

with confidential hotlines and rigorously investigating reports of

wrongdoing. But the argument for protecting would-be government

whistleblowers is equally compelling. As with the health care industry, the work of government touches the lives of us all, and we

have a vested interest in making sure it is effective and efficient.

Congress to this point has expressed a clear priority for protecting the rights of whistleblowers. As the Supreme Court noted in

the case of Garcetti v. Ceballos, ‘‘The dictates of sound judgment

are reinforced by the powerful network of legislative enactments,

such as whistleblower protection laws and labor codes available to

those who seek to expose wrongdoing.’’

And with that, Mr. Chairman, I look forward to hearing from the

witnesses. And we must, we must, protect whistleblowers.

Chairman TOM DAVIS. Thank you.

[The prepared statement of Hon. Elijah E. Cummings follows:]

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Chairman TOM DAVIS. Mrs. Maloney.

Mrs. MALONEY. Thank you, Mr. Chairman and ranking member.

I think one thing we can all agree on is that the current system

is broken and whistleblowers are simply not being protected. The

recent Supreme Court decision raises even more questions about

who we are going to protect; the whistleblower or the wrongdoer?

I anticipate that we will hear a great deal of commentary today

arguing that the reaction to this decision has been overblown and

that this case did not strip employees of whistleblower rights.

While the impact of the decision may be arguable, the message to

potential whistleblowers is loud and clear: Speak out at your own

risk.

Too often our system retaliates against whistleblowers rather

than thanking them for standing up for what they believe is right.

This committee has heard from many of them, including Sibel Edmonds, the former FBI translator who was fired for raising questions about the way the FBI was translating important information

about our Nation’s security. Her reward for raising these issues included having her security clearance stripped, being fired from her

job, and being forced to endure a year-long court battle that has

prevented her from having any normal life. Things are so bad with

her case that when she testified before this committee, she literally

could not tell us anything about her herself, where she was born

or what languages she speaks; and sadly, she is not an exception.

We have moved forward with legislation such as H.R. 1317, the

Federal Employee Protection of Disclosure Act, that would protect

government whistleblowers. But similar legislation failed last Congress, and by all accounts there is strong opposition by the Bush

administration to these protections.

I have teamed up with Congressman Ed Markey and others to

introduce H.R. 4925, the Paul Revere Freedom to Warn Act. Our

legislation would provide the same whistleblower protections that

Congress provided to those reporting accounting fraud in the Sarbanes-Oxley Act to all Federal employees, contractors, subcontractors or corporate employees. Passage of either of these bills will

send a strong message to whistleblowers that we care, and that

they will be protected when they raise serious issues of wrongdoing. Not only is this the right thing to do, we will be a better

and safer Nation for it.

And I would like to be associated with the comments of my colleagues on this side of the aisle that raised many important issues,

including the fact that, with the way it is now, whistleblowers are

not going to come forward; they’re not going to speak out because

they see that those who do speak out are retaliated against.

I thank the chairman for holding this hearing. I yield back my

time.

Chairman TOM DAVIS. Thank you.

Mr. Kucinich.

Mr. KUCINICH. Thank you very much, Mr. Chairman. Welcome to

the witnesses, and especially Mr. Ceballos.

In Mr. Ceballos’ case, the court found that his speech as an employee—which represented his work product—was not protected

from managerial discipline under the first amendment. The court

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determined that Mr. Ceballos was speaking as an employee, not as

a citizen.

My own personal view is that Mr. Ceballos was speaking to public interest. However, in alerting his superiors and the defense

counsel that the affidavit had serious misrepresentations and that

the case should be dismissed, in the matter of public interest, there

should be protections for employees like Mr. Ceballos, but since it

was ruled that the first amendment didn’t protect him, then he

wasn’t protected. This precedent does everyone a disservice.

The Ceballos majority of the court advised Federal Government

workers to rely on Federal whistleblower laws, but current whistleblower protections are limited, and Federal whistleblowers may

have no protection against retaliation for disclosures made as part

of their official duties.

Under current law, the Federal Circuit Court of Appeals has exclusive jurisdiction over whistleblower cases appealed from the

Merit Systems Protection Board ruling, yet the Federal Circuit excludes most whistleblower claims, including disclosures made in

the course of an employee’s official duties.

The Ceballos decision leaves Federal employees without a remedy against retaliation for disclosures made in the course of their

official duties.

Furthermore, the Ceballos decision also sets a precedent for

State government employees who relied on the first amendment for

whistleblower protections. While most States have enacted some

form of whistleblower protections, these laws vary widely. The first

amendment has been the most solid protection from retaliation

against whistleblowers, and in States without whistleblower laws,

the first amendment has been the only protection for State government employees who have disclosed information in the course of

their official duties. Such employees no longer have that protection.

A government employee who makes a decision to risk his or her

career of future promotions and pay raises to report information

about government wrongdoing, and does so in the interest of public

welfare, deserves a medal. Instead, he or she is subject to job termination, demotion, harassment and other disincentives to continue working. It is up to all of us to protect these employees and

their disclosures which benefit us all.

I believe this hearing will illustrate to us all the desperate need

for stronger legislation to close the loopholes in our whistleblower

protection laws. These basic protections should be applicable to all

Federal employees and all Federal contractors across the board.

Mr. Chairman and Ranking Member Waxman, your work on this

committee is so important in furthering whistleblower protection,

it’s time that Congress stood up for people who are standing up for

the public interest. I want to salute everyone who has ever taken

a chance in protecting the public interest, everyone who ever knew

there was a risk in disclosing something that was otherwise hushhush. These are the people who make America a great Nation.

Thank you.

Chairman TOM DAVIS. Well, thank you all very much. I appreciate everybody’s comments. Again, Members will have 7 days to

submit opening statements for the record.

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Our first panelists here are Stephen Kohn, who is the Chair of

the National Whistleblower Center; and Roger Pilon, who is the

vice president for legal affairs at the CATO Institute. We appreciate you being with us and being patient through the opening

statements.

If you would just rise with me and raise your right hands. The

policy is we swear witnesses in.

[Witnesses sworn.]

Chairman DAVIS. Your entire statements are in the record. I read

them both last evening.

You have a light in front of you that turns green when you start,

orange after 4 minutes, red after 5. We try to keep as close to time

as we can, but I want to make sure you get your salient points out.

Mr. Kohn, we will start with you, and then Mr. Pilon, and then

we’ll go to questions.

STATEMENTS OF STEPHEN M. KOHN, CHAIR, NATIONAL WHISTLEBLOWERS CENTER; AND ROGER PILON, VICE PRESIDENT FOR LEGAL AFFAIRS, CATO INSTITUTE

STATEMENT OF STEPHEN M. KOHN

Mr. KOHN. Thank you very much, Chairman Davis, members of

the committee, for this opportunity.

The Garcetti decision places every honest government worker in

the United States of America at risk for retaliation simply because

they didn’t hire a lawyer and filed their concerns with the wrong

person; and under Garcetti, the wrong person is their own boss. It

turns whistleblower rights on their head.

Sitting over toward my right are three persons I’ve had the

honor of representing, or have represented: Sibel Edmonds—you’ve

heard a little bit of her, she exposed security deficiencies at the

FBI; Dr. Jonathan Fishbein, who exposed life-threatening drug

safety practices at the NIH; Bunnatine Greenhouse, who was the

first to document contract violations in the war with Iraq that have

hurt taxpayers and small businesses.

Each of these whistleblowers, dismayed, learned of the problems

through their official duties. Each went initially through their

chain of command. Had the Garcetti decision been law, the results

of their conduct would be radically different.

I’ll give you an example in Mrs. Greenhouse’s case. When she

wrote on the contract ‘‘violation of procedure,’’ the Army Corps

didn’t know about Garcetti; so they said, you didn’t have the authority to write on that contract; we’re going to demote you. Had

they known about Garcetti, they would have been a little smarter.

They would have said, ‘‘Great, Bunni, we loved your comments on

the contract. That’s part of our official duties. High five. By the

way, you’re fired.’’ And she would have absolutely no protections,

either under the Whistleblower Protection Act or the first amendment.

Garcetti is so illogical that under the first amendment a person

who burns the American flag has more constitutional protections

than someone who exposes a bribe, reports that the space shuttle

may blow up, or does their best to get a FISA warrant on a susVerDate 11-MAY-2000 11:50 Jan 16, 2007 Jkt 000000 PO 00000 Frm 00030 Fmt 6633 Sfmt 6633 D:\DOCS\28966.TXT HGOVREF1 PsN: HGOVREF1
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pected terrorist that just may want to learn how to fly airplanes

but not land them. It turns the whole process on its head.

Justice Kennedy, in a sense to justify the decision, said there is

a—in his words a, ‘‘powerful network of whistleblower laws.’’ We’ve

evaluated that powerful network. If you would look at chart No. 1,

you will see that 58 percent of the States do not protect internal

official-duty whistleblowers who lost protection under Garcetti; 58

percent, no protection.

If you look at chart 2, what you will see is this protection afforded in the 42 percent of the States that do afford protection is

far weaker than the protection under the first amendment. In fact,

95 percent of the States which would protect a Garcetti-type whistleblower, they’re weaker protections.

The first amendment was implemented by a law known as 42

U.S.C. 1983, which for years was viewed as the best safety-net

whistleblower law in the United States. It is not anymore.

But what is the practical impact? You may ask, so what if they

can’t be an official-duty whistleblower or report internally. I’ve

been doing whistleblower cases for 22 years and almost every whistleblower starts internally.

We’ll have time for one last chart, which is a summary of the last

50 cases in which an employee used 42 U.S.C. 1983 successfully.

They’re cases with merit. And you will see 86 percent were internal

official duty, and only 14 percent were so frustrated as to go outside of the system. The Garcetti decision, there is no safety net. It

is Congress that must act to fix the problem.

We have made a very simple proposal to the committee, one page

that will fix the problem. Thank you very much.

Chairman TOM DAVIS. Thank you very much.

[The prepared statement of Mr. Kohn follows:]

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Chairman TOM DAVIS. Mr. Pilon.

STATEMENT OF ROGER PILON

Mr. PILON. Yes, thank you, Mr. Chairman, and thank you for the

invitation to be here this morning.

After listening to my colleague and listening to the opening statements, I feel I need to start a little differently than I had originally

planned to do. My prepared testimony, if you have had a chance

to read it, I think is a rather even-handed treatment of the case.

I will open by saying that the whistleblower issue is very serious,

and there are doubtless many, many very important credible whistleblowers out there who are not getting their just day in court. At

the same time, we also know there is another side to the matter;

and that is, having served at the Office of Personnel Management

I’ve seen it, many whistleblowers are approaching the bodies, either administrative or judicial, with less than meritorious cases.

So we have a balance that we need to strike between the needs

of management to run government efficiently on the one hand, and

the needs of whistleblowers to bring to the attention of the public

things that need to be brought to their attention.

And so let me turn now to your invitation, Mr. Chairman. You

raised three concerns in that letter:

No. 1, to help us understand the Ceballos case, I will tell you it

is not the easiest case in the world to understand. I’ll try to make

some sense of it this morning.

Second, what effect it has on the statutes. I do not see it as having had any effect whatsoever on the statutory protections, and

therefore it seems to me—and this was your third concern, the

press reports. It seems to me they were overblown and should be

noted as such.

Now, let me turn to the case itself. The ruling that came out of

the case was one whereby if an employee is speaking pursuant to

his official duties, then he is not speaking as a citizen and therefore has no first amendment protection. By contrast, if he is speaking as a citizen, then possibly he has a first amendment protection

if it does not interfere too much with the operations of government

that he is there to carry out. That in a nutshell is what the majority held.

The dissent criticized the majority mainly because it had put

forth a categorical distinction between speaking as a citizen and

speaking as an employee. And it seems to me, that criticism is well

founded. What we have in many cases is mixed cases, whereby a

citizen—rather, an employee is speaking within the framework of

his official duties as an employee, and yet is also speaking as a citizen. And it seems to me the Ceballos case was a perfect example

of that.

Indeed Justice Souter in his dissent brought that out. And I suspect that the best opinion in the whole series of opinions was that

by Justice Breyer, who saw this as indeed a mixed case.

Now, the problem when you get into the kind of standard that

was put forward by Justice Souter is that it involves the court in

making all kinds of policy and value judgments, which courts are

not ordinarily prone to do. For example, he said that the employee

should prevail—should not prevail, unless he speaks on a matter

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of unusual importance, satisfies high standards of responsibility in

the way he does it; and he listed such categories as health and

safety, deliberately unconstitutional action, serious wrongdoing and

the like. In other words, what you’ve got now is a call for the court

to be ultimately exercising its discretion. And so at the end of the

day we’ve got to ask the question: Who is going to ultimately have

the discretion in these matters? Is management going to have the

discretion, or is the court going to have the discretion? And what

you want to avoid is having a situation whereby all of these cases—

and, of course, there are in principle many, many cases that do not

end up in the Federal courts to be adjudicated there, or the courts

will be swamped with them.

So it seems to me that the best way to go about this, because the

first amendment can get you only so far in adjudicating these matters as a matter of principle, where you need to go is with statutory

remedies. And as Justice Souter brought out, there are some serious problems—and Mr. Kohn did as well—with the statutory remedies that are out there and are available. That is, of course, a subject for the next panel to address.

We all want these disputes to come out right, but at some point

some party is going to have to have the discretion. And the question, it seems to me, for this committee is where are you going to

leave that discretion, with the management, or are you going to

leave it with the court? Thank you.

Chairman TOM DAVIS. Well, thank you very much.

[The prepared statement of Mr. Pilon follows:]

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Chairman TOM DAVIS. Mr. Kohn, you’re fairly unequivocal, and

you believe that the Ceballos decision was wrongly decided. But

just playing devil’s advocate for a minute, if the court had gone the

other way, wouldn’t it have given employees the ability to challenge any and all decisions by their superiors without repercussions? What are the limits?

Mr. KOHN. Absolutely not. Essentially the law that the Garcetti

case reversed was the law followed by almost all courts for almost

30 years, and it is a very simple standard: Is the speech of a matter of public concern? Pure workplace grievances have no constitutional protection, and if it was speech of a matter of public concern,

it could be rated high public concern, low public concern.

To the second part of the test, which was a balancing test, the

interest in the speech versus the interest in efficiency of government. And that was the test applied in courts pretty much uniformly, with a couple of outliners, for 30 years. It worked pretty

well. So it wasn’t some type of free speech right for employees on

anything; it had to be a matter of public concern.

Chairman TOM DAVIS. OK. We have a lot of discussions here on

policy issues, where you come out. And every employee who has a

grievance, who has gotten their 2 cents in at the table but didn’t

get their way, could go out front and that would be very inefficient,

wouldn’t it?

Mr. KOHN. It would. But there is a second part of the test.

Chairman TOM DAVIS. I mean, obviously waste, fraud and abuse

would be unfettered, in terms of their ability to expose those

things.

Mr. KOHN. But there was a second part, and the courts dealt

with this. The first issue is was the speech even protected. But

even if it was, you could still fire any employee, if you would have

fired an employee who hadn’t engaged in that same type of speech

for the same thing. There was no immunity here. So if an employee

was incompetent, if an employee showed up late, even if the employee’s speech was outrageous in the sense that he pulled out a

bull horn in the middle of the workplace, they could be fired. So

there was no insurance policy here. They could discipline employees, and they had legitimate controls over what was a matter of

public concern.

What occurs here is that employees’ rights are cutoff at the start.

They could be the best employee in the office, and, simply for writing a memo exposing a serious issue of misconduct that the supervisor wanted to keep hidden, they’re fired. And under this decision

they’re out.

Chairman TOM DAVIS. Even if they keep it in house?

Mr. KOHN. Absolutely. If they keep it in house, they are totally

out. If they didn’t write that memo to their supervisor, stabbed the

supervisor in the back, went running to the press and called a

press conference, they’re protected.

Chairman TOM DAVIS. And that’s a bad decision, if that’s where

it comes down.

Mr. Pilon, do you agree with that?

Mr. PILON. Well, he said quite a bit so.

Chairman TOM DAVIS. I mean, just talking about it depends—obviously if you write a memorandum to your employer, this is someVerDate 11-MAY-2000 11:50 Jan 16, 2007 Jkt 000000 PO 00000 Frm 00065 Fmt 6633 Sfmt 6633 D:\DOCS\28966.TXT HGOVREF1 PsN: HGOVREF1
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thing that comes across your desk, you feel it is—something is

wrong—and you write that memorandum to your employee, you

keep it in house; what is the problem?

Mr. PILON. I don’t know that the court has given us an answer

to that, frankly, and that’s part of the problem. I would respond,

however, to this idea of a matter of public concern, which I assume

you are talking about the Pickering standard before that.

The problem there is it still is a difficult line to draw. I mean

go from waste, fraud, and abuse on the one hand to a simple employee grievance on the other hand. The employee grievance could

itself be a matter of public concern if indeed the resolution of it

serves as a precedent for future employee grievance resolutions.

And so it is very hard to know whether something is going to be

of a matter of public concern or not.

Again, there just are not bright lines here, and we are far better

off trying to, it seems to me, address these statutorily, and probably with different statutes pertaining, to say the CIA employee on

the one hand versus someone at HHS on the other hand. Because

they are very different venues.

Chairman TOM DAVIS. Well, even the public concern issue, which

is—I guess could be litigated through time—how do you balance

the State’s interest in promoting workplace efficiency? That’s a line

that seems very difficult to draw.

Let me ask you this, Mr. Pilon. It seems the key issue is this notion of ‘‘pursuant to their job description’’ that the court used in

Ceballos. Do you think this is now what will be litigated, and how

do you think this will come out?

Mr. PILON. Yes, it will. And Justice Souter brought out the point

that now we are going to see litigation over this fact-bound issue

of whatever it is. Moreover, there is the speculation that he put forward in the opinion that we will now take the PD’s position description and expand the duties under it and so that everything becomes a matter of activities pursuant to your official duties.

Chairman TOM DAVIS. But I think you both make the point, this

begs the statutory solution.

Mr. PILON. Absolutely.

Chairman TOM DAVIS. OK. Mr. Waxman.

Mr. WAXMAN. Thank you, Mr. Chairman. I want to thank both

of you for your testimony. Congress and the American people rely

on whistleblowers to disclose unlawful activities, waste and abuse,

and this committee has learned that instead of being rewarded for

this patriotism, government workers face the loss of jobs, livelihood, and reputations. That’s what we are trying to deal with, how

we can encourage people to come forward without facing sanctions

for doing it. And now more than ever, we need whistleblowers to

do what we want them to do, to come forward and expose problems

within the government.

The Federal courts seem to be steadily eating away at the whistleblower protections. As a practical matter, the Ceballos decision

leaves whistleblowers with no recourse against harassment, job

loss, and other retaliation.

Do you, Mr. Kohn, think that this will have a chilling effect on

government employees? Are they going to be fearful as a result of

this decision?

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Mr. KOHN. There is absolutely no doubt that decision has already

had a chilling effect given the type of communications my office has

seen. It clearly will. But I’ll tell you where the chilling effect—

when it will really come in is when you have a workplace and

someone actually gets fired or demoted, legally. To understand

Ceballos, watch the—we have seen this in other areas of the law

in which Congress amended the statutes to protect the internal

whistleblowers, like the Atomic Energy Act, where one court said

oh, you can’t go internal. Once you fire someone, you will have such

a chilling effect. And if you look at the examples of the three whistleblowers I gave coming in here, what was discovered in the investigations of each of their cases is that those offices had major problems. Those offices had a motive for trying to silence the internal

whistleblower. And it will be precisely the dysfunctional or the corrupt office that will benefit from this decision; whereas, if you have

an office that’s honest and open but those employees are afraid to

fully communicate, the honest office will be penalized. The chilling

effect will have terrible consequences, both for honest workplaces

and benefiting dishonest workplaces.

Mr. WAXMAN. Do you think we need a statutory change? Have

you had a chance to review the proposals that have come out of

this committee with regard to whistleblower protection?

Mr. KOHN. I have. And I salute the efforts to reform the Whistleblower Protection Act.

That amendment being proposed would partially overturn

Ceballos under that law. But it doesn’t fully do it and it doesn’t

cover the vast majority of employees who have lost their rights,

which is all State and local and Federal employees not covered

under WPA.

Also we have used the first amendment very effectively for all

Federal employees. And those rights cannot be restored by the

WPA amendment. We have proposed a very simple law. It essentially takes a definition of protected activity that’s very established,

partially from the Sarbanes-Oxley Act and partially from the general laws. It gives a procedural remedy that’s realistic, the precise

procedural remedy that this Congress gave to employees of the

NRC and the Department of Energy this term, and it defines employees consistent with Title 7. If you can file a claim for race, sex,

or age discrimination, let your employee file a claim for whistleblower protection.

Those three simple steps would cover and protect this loophole

in 99 percent or more of every American workplace across the

country.

Mr. WAXMAN. Mr. Pilon, do you—you think we needed statutory

changes as well? What would you recommend we do in terms of the

statute?

Mr. PILON. One of the things it seems to me that you need to address at the outset, is where did the presumptions lie and who has

the burden of proof. You look at Justice Souter in dissent, and he

offered one proposal; but it is pretty heavily on the government

side, interestingly. He spoke of the government’s legitimate authority, and that before an employee could overcome it, he would have

to have a complaint that had a certain minimum heft—his words.

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I don’t know what that language translates out to in any given situation.

Again, so many of these issues are so difficult to deal with, because, as the majority said, they are so fact-dependent. You can lay

out some general principles, but once you get beyond that, you are

dealing with facts, situations, which vary enormously. And if the

court cannot address these because the first amendment is simply

too sparse to do it, it may be that Congress is going to be limited

as well, because there is so much you can write in the way of statutes that are going to address every agency running from the CIA

on the one hand to an ordinary nonintelligence-related office on the

other hand.

Mr. WAXMAN. Thank you.

Chairman TOM DAVIS. Thank you. Mr. Dent, any questions?

Mr. DENT. Thank you. Mr. Chairman.

To both panelists, at what point did Mr. Ceballos’ activities qualify as part of his job description? When he answered the phone call

from the defense counsel or when he went to the site during working hours? Can you give me some insights, sir?

Mr. PILON. Well, I’ll start with that. It seems to me that all that

he was doing was part of his job description. And it was with—all

of it was with matters of public interest.

If anything, this was as clear a mixed case as you could find. I

mean, we don’t want sheriffs issuing false affidavits in order to obtain a warrant, assuming the facts are as they are reported in the

case. We have to assume that because it was up on summary judgment motion.

So I think everything that he was involved in was related to his

job description.

Mr. KOHN. And yes, Mr. Dent, I think your question actually exposes one of the gravest deficiencies in the decision, which is what

will occur now is endless, useless litigation on what is in or out of

a position description and that I mean—and that’s going to be carried on for years in summary judgment motion litigation. The Supreme Court found that his writing that memo exposing potential

perjury, a misrepresentation in sworn testimony, was part of his

duties and he lost protection for his memorandum.

But what is going to happen now is employees will look at their

position description, employers will look, and it’s going to go on and

on.

Mr. DENT. I guess as a followup then, how could Mr. Ceballos

have done the same type of followup investigation, made the same

recommendation, without having it fall within his job description?

Mr. KOHN. And it is, again, kind of the absurdity of the decision.

Had he not written his memo, but had he written a press release

and issued it to the Los Angeles Times, he would have been protected under the first amendment.

When employers would want employees to be encouraged to do

that without working things out, it makes no sense. But in reality,

since most whistleblowers, 99 percent, try to work things out

through the chain of command, most won’t issue a press release at

the first drop of an issue. It is going to have—that’s the devastating impact of the decision. But the illogical side of it is why encourage employees to write press releases?

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Mr. PILON. I don’t see the opinion that way. I don’t see it as saying if he had gone with a press release, he would have been protected under the first amendment. I still think that he would have

been subject to internal discipline if he had taken perhaps even

more discipline.

Mr. DENT. Thank you, Mr. Chairman. I yield back.

Chairman TOM DAVIS. Thank you very much.

Ms. Watson.

Ms. WATSON. My question to Mr. Kohn: Should Mr. Ceballos

have quit first and then gone to the press?

Mr. KOHN. Absolutely not. That would reverse employment law

back 100 years.

Ms. WATSON. No. My question goes to whether he would have

been covered by whistleblower protections?

Mr. KOHN. If he had quit?

Ms. WATSON. Yeah.

Mr. KOHN. If he had quit, the whistleblower protections would be

irrelevant because he quit his job. He won’t get it back.

Ms. WATSON. Well, what I am going to is that, as an employee

doing what he had the authority to do, he made a recommendation,

and apparently he was punished for doing his job. What would

bring him under the protections as an employee? And the only

thing I can figure out from what the two of you have said is he

would have to become a citizen.

Mr. KOHN. He could keep his job, but he would have to blow the

whistle publicly. In fact, the Supreme Court remanded the case because he also testified in court and the court testimony could be

protected under the first amendment. He also spoke, I believe, like

at a Bar Association meeting. That public speech could be protected. So there is actually going to be a remand to see whether

he actually went outside of his chain of command and whether that

was protected.

The problem with the decision, if you look at the statistics, about

85 percent of whistleblowers never go beyond the chain of command, and there they will be the ones who will lose their cases.

Some do go outside the chain of command, and they still will be

protected.

Ms. WATSON. Well, my great interest here is protecting people

who are responsible, and from what I can gather by just a cursory

review of what we have here, is that he was doing his job. As a

public concern, they are getting ready to prosecute somebody based

on the wrong methods of—and maybe false, I don’t know—but how

could we correct that? And you said you had something that——

Mr. KOHN. It is very simple language that was put into Sarbanes-Oxley. It actually comes from the Atomic Energy Act. It has

been applied to some Federal employees already, and it says a ‘‘report to a supervisor or a person with the authority to correct the

problem.’’ That’s it. It is as simple as that.

Ms. WATSON. Then that person would be protected.

Mr. KOHN. That’s right. If the employee reports it to their supervisor or——

Ms. WATSON. Once they took that step.

Mr. KOHN. Then they are protected. And that exists in the law,

and that’s actually the judicial interpretation that’s given to most

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whistleblower laws—Federal—until this decision, and it has

worked.

Ms. WATSON. OK. Thank you.

Chairman TOM DAVIS. Thank you. Ms. Norton.

Ms. NORTON. Thank you very much, Mr. Chairman.

You know, it takes a whole lot of nerve to use the colloquial. To

stand up and disagree with agency policy. I am very concerned

about this confusing inside/outside distinction. It seems to me

that—and let me ask you first this question—that the court didn’t

have much choice under prior first amendment decisions which is

allegiant on the citizen’s right to speak out. That part of the decision that it seems to me didn’t—I don’t think the court would,

without striking down a whole bunch of prior authority, could have

said otherwise. But I am very confused by trying to envision an example of an employee who might speak out as a citizen but could

not speak as—but would not be protected as an employee. I would

like both of you to offer me an example of such an employee.

Mr. KOHN. Well, we don’t need to go further than Mr. Ceballos.

Ms. NORTON. I am left in total confusion by that one. So I guess

I am asking for a law school hypothetical.

Mr. KOHN. What it means is this—and this is now the law under

this case. You are an engineer working in NASA. Better yet, you

work in a security department in a police agency. Now, there is a

case on this with a public employee that was not overturned. The

President of the United States is shot. That employee says, ‘‘Well,

maybe a better shot next time.’’ Words like that. You know, maybe

we should—it is a good way to get rid of the President.

The Supreme Court found that employee’s speech protected because it was a matter of public concern about the President.

Same employee is reviewing a security analysis of the safety of

the President of the United States of America and finds a deficiency that might be embarrassing to their boss but puts the President’s life at risk. Reports the deficiency to the boss. That employee

can now be fired for that act.

The decision is hard to understand because it makes no common

sense. The very first court to look at this whole distinction back in

the 1970’s said the only way to adjudicate whistleblowers on internal/external is just use common sense. This decision does not make

use of common sense and therefore it is very hard to understand.

Ms. NORTON. Yes.

Mr. PILON. I was just going to add that I fully agree that this

decision drew the line in a place that is curious, to put it charitably. But that doesn’t mean that we know where to draw the line.

Let me flip it around just a little bit. You all have staff. And you

know that there is a problem sometimes with disagreements with

staff. And how much do you want your staff to be at liberty to

speak freely—within the office or outside of the office—on policy

differences you may have. There is a point at which managerial

control of the message is important. And it’s not easy to find how

to draw that line in such a way that you are able to keep control

of your operation, just as a manager in the government would have

to, and yet allow——

Ms. NORTON. Mr. Pilon, you said that you indicated in your response to one of my colleagues, I think in your previous response,

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you just said in response to my colleague here that he would have

been disciplined either way. Now, assuming in good faith he believed that this was—this evidence was faulty, you know, the facts

of the case, what are we suggesting that he should do if he would

be disciplined either way?

Mr. PILON. In this particular case?

Ms. NORTON. Yeah.

Mr. PILON. As I said, this particular case was wrongfully decided.

Ms. NORTON. This is not the criminal justice system and it’s very

disconcerting. Perhaps I am identifying too much with this lawyer.

What does he do if he got—conducts his own investigation, writes

a memo. I mean, it is, you know, you have to—whenever you see

somebody who’s done something wrong, then you think, well, he

should have done something right, if he had only done so.

Mr. PILON. Mr. Ceballas will be here on the next panel so you

can ask him directly.

Ms. NORTON. I will ask no more questions. I will say this: that

I don’t see how one can avoid—we talk about, like I said in my

opening statement, waste, fraud and abuse—I don’t see how we can

continue to disparage leaks. It does seem to me that disconcern

about leaks to the New York Times, the investigations that are

now going on on all of these leaks, if you are in one of these agencies with the confusion that we have been having, been able to unravel so far, you do have an alternative. You need to leak it to the

press and don’t tell anybody.

Now, imagine what that means if we are talking about somebody

in the CIA or the FBI or the Homeland Security. So if ever there

is any reason to try to come to grips with this problem, it is not,

in my judgment, wrong for a waste, for an abuse; it is the security

of the United States and the safety of the American people.

Thank you, Mr. Chairman.

Chairman TOM DAVIS. Thank you very much. Mr. Shays.

Mr. SHAYS. Thank you, gentlemen, for being here.

I happen to believe, as I said when I started, that when you give

an administration more power, you need to have protections. You

need to have strong congressional oversight. We here can’t function

like a Parliament. We need to function like a separate branch of

government. No. 1.

No. 2, I believe that the Civil Liberties Board, recommended by

the 9/11 Commission as it’s related to the intelligence part of our

government, needed to be established which would set up a separate board with certain power, couldn’t be replaced by the President, Senate confirms employees in each of our 16 classified agencies, our intelligence agencies.

And the third is strong whistleblower protection. I’m going to

react to my limited knowledge of what I heard and read in testimony, and I want you to react to that.

I believe it is incumbent on the Congress of the United States to

have a whistleblower protection that works in the nonintelligence

side of the equation and works on the intelligence side of the equation. My view would be not necessarily that the court ruled incorrectly here, because I believe that when you work for a government, when you work for a business, you have certain obligations

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to the government, to the business. So you can’t just say I have

freedom of speech; I can say any damn thing I want.

What I then conclude is that if Mr. Ceballos did not think he had

protection under the whistleblower statutes, that the whistleblower

statutes are what is at fault, not a court decision that said he

couldn’t use his first amendment rights. That’s kind of where my

mind is.

And can’t this problem simply be solved by just making sure we

have a whistleblower statute that works? So I would ask each of

you that question.

Mr. PILON. Well, this is one of the questions that the chairman

raised in his opening remarks that you will undoubtedly want to

put to Mr. Ceballos, namely, why is it that he went the route of

the first amendment rather than through a statute, and it may be

that there are good legal reasons for that. I don’t know what they

are.

Mr. SHAYS. But intuitively, do you believe that we should have

a process where someone can speak out?

Mr. PILON. Absolutely. It is all part of good government. I mean,

you put your finger right on it. On the one hand, you have to have

agencies like the FBI and the CIA talking to each other so you

don’t have September 11th again. And you have to have discipline

within those agencies and this means allowing for the free exchange of ideas so that were problems to arise, they will be vetted.

Mr. KOHN. There absolutely must be a statutory fix. Period. The

nature and scope of that fix can be debated, but each time a court

in the past has issued this type of decision, there was an immediate legislative process.

Mr. SHAYS. That’s not really directly answering my question, because the implication of your answer is that a statutory fix that

gives him his first amendment rights, and that’s not what I am

saying.

I am saying, doesn’t this really send the message to us that we

need to correct—first off, do you think he—let me ask you in particular, Mr. Kohn. Do you think he had the ability to be protected

under whistleblower protections, not first amendment protections?

And second, if he didn’t, is this the issue, then, that we needed—

we need to have a better whistleblower statute?

Mr. KOHN. The statute at issue in the case, 41983, is a very good

statute. It affords a lot of protection. That’s why people use it.

Mr. SHAYS. You are talking about the whistleblower statute.

Mr. KOHN. This is the Federal law that gave employees the right

to have their constitutional rights protected. It is a little complex.

There was actually a statute underneath the Ceballos decision, and

they just interpret it in that way.

The core question is when I say ‘‘a statutory fix,’’ that doesn’t

necessarily mean to restore your constitutional rights. It is a statutory fix to protect your whistleblower speech efficiency and effectively period. I don’t think—I have a lot of disagreements with the

Supreme Court decision, but I don’t think it serves anyone’s purpose now to re-debate it. We should look at what you need to have

a good working whistleblower law, if it’s consistent or inconsistent.

Mr. SHAYS. We have two laws. We have one in the nonintelligence, one in the intelligence.

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Mr. KOHN. That are being proposed.

Mr. SHAYS. That we have. And the one in the intelligence is not

worded properly.

Chairman TOM DAVIS. Mr. Cummings.

Mr. CUMMINGS. Where is the dividing line, according to the

court, between the citizen acting and the employee acting? What

divides it? Because it seems to me that you can have a situation

where one may start out as an employee and end up as a citizen.

Are you following what I am saying? In other words, in the dissent, Justice—one of the justices said something about it. There is

some speech that a supervisor would not even want to get out because maybe the supervisor is involved in the process. Now, you

know, some fraudulent action or something that may jeopardize the

focus that government is supposed to be serving. So you have this

person who starts off, I guess he’s an employee. He’s talking to the

supervisor. The supervisor does not act. He keeps going up. It

keeps going up. Next thing he knows, like you said a moment ago,

he’s got to go to the newspaper.

At what point, first of all, is there any consideration under this

case for the person who has to go through that process? In other

words, say for example, in a hospital where this worker knows that

people are getting faulty HIV AIDS results and he tells the supervisor and the supervisor just doesn’t do anything. He keeps going

up. Next thing you know, you see—or he has to go to a newspaper.

What happens? I mean where is the dividing line.

Mr. KOHN. Absolutely. And it is part of the counterintuitive part

of the decision. Thirty years ago the Supreme Court decided Pickering, which is still good law. In Pickering, a teacher wrote a letter

to the newspaper about budgetary issues in the school that related

to his classroom. That was found to be protected free speech. He

could not be fired. That is still good law. So going to the press is

still protected activity.

Now you have another Supreme Court decision called Givhan,

and in that case an employee complained to a supervisor but it

wasn’t a complaint about anything to do with their particular job.

That’s still good law.

So if you don’t complain about anything you are dealing with at

work, or you go to the press, you are still protected. Who isn’t? It

is that worker who in the course of their employment finds the

problem and reports it reasonably through their chain of command.

And the reason that is such a problem for whistleblower protection, that’s what 80 to 90 percent of all whistleblowers do. So once

you take this very reasonable commonsense protection away, the

net result will be most whistleblowers will lose their case. But it

is so counterintuitive that it is illogical, and I want to say that it

is new.

When President Reagan and his administration confronted this

issue when it first came up in the courts, they were—the Solicitor,

his Solicitor was on our side on this, Secretary of Labor was on our

side. Secretary of Labor Brock, President Reagan’s Secretary,

here’s what he said on this very issue: Employees who have the

courtesy to take their concerns first to their employers to allow

their employers a chance to correct the violations need as much

protection as those employees who first go outside the system.

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That was common sense. It must be restored by statute.

Mr. CUMMINGS. One of the things that’s so chilling about all of

this is when we see the more recent attacks on say for example,

the New York Times by the President and others because they provide information to the public. You know, it is when you combine

this, what we are talking about here with that, the question is

where do we end up? Will we end up in a situation where, say for

example, the whistleblower, when they cannot get results for possibly, again, the AIDS test in my district, faulty AIDS test, and

then goes to the papers, and if there is some chilling—some kind

of clamping down on the newspapers, media, saying you can’t report so-and-so and so-and-so, where does all of that end? Where do

we go?

Mr. PILON. Could I comment on that, because the Swift program,

which you are alluding to, raises the problem that is buried here

that we haven’t brought out yet; namely, what if there are policy

differences between staff and management? The leak in this case

apparently came from someone who didn’t agree with the policy.

And shouldn’t management have some authority to address that

problem?

Mr. CUMMINGS. But it is a question—and then just this one quick

thing—but when you have a situation where management is basically clamping down because management may be a part of the

problem, that’s what I am getting to. So that’s a whole different

case.

Mr. PILON. That’s a different case.

Mr. KOHN. You have, again, I think hit the nail on the head. It

is kind of a catch 22. If you can’t complain to your supervisor—or

if you do, you lose your protection. You want to go to the press, you

have a first amendment right. But if the information you give to

the press was classified proprietary Privacy Act violation, you can

be investigated for that and fired for improperly leaking. So essentially the net result is confusion and opening valid whistleblowers

to retaliation.

Mr. CUMMINGS. Thank you very much, Mr. Chairman.

Chairman TOM DAVIS. Thank you very much. I want to thank

this panel.

What we’ll do is take a 3-minute break.

[Recess.]

Chairman TOM DAVIS. We will now recognize our second panel.

Thank you for staying with us. Mr. Richard Ceballos is the deputy

district attorney for Los Angeles County District Attorney’s Office;

Mr. William Bransford, general counsel, Senior Executive Association; Ms. Mimi Dash, council president of Fairfax Education Association—retired; Lisa Soronen, staff attorney, National School

Boards Association; and Miss Barbara Atkin, who is deputy general

counsel in Natural Treasury Employees Union.

Mr. Bergstrom, are you testifying? OK. Mr. Richard Bergstrom,

the counsel for Morrison & Foerster; and Mr. Joseph Goldberg, representing the American Federation of Government Employees.

Thank you very much for being here. It is our policy, as you

know, that we swear you in before you testify. So if you will raise

raise your right hands.

[Witnesses sworn.]

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Chairman TOM DAVIS. Mr. Ceballos, you started this whole

thing. We are going to start with you. And I think you know we

try to stay within our 5 minutes. Your entire statement is in the

record. So thank you very much.

STATEMENTS OF RICHARD CEBALLOS, DEPUTY DISTRICT ATTORNEY, LOS ANGELES COUNTY DISTRICT ATTORNEY’S OFFICE; WILLIAM BRANSFORD, GENERAL COUNSEL, SENIOR

EXECUTIVES ASSOCIATION; MIMI DASH, COUNCIL PRESIDENT, FAIRFAX EDUCATION ASSOCIATION, RETIRED; LISA

SORONEN, STAFF ATTORNEY, NATIONAL SCHOOL BOARDS

ASSOCIATION; BARBARA ATKIN, DEPUTY GENERAL COUNSEL, NATIONAL TREASURY EMPLOYEES UNION; RICHARD

BERGSTROM, COUNSEL, MORRISON & FOERSTER; AND JOSEPH GOLDBERG, AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES

STATEMENT OF RICHARD CEBALLOS

Mr. CEBALLOS. Good afternoon, Mr. Chairman, members of the

committee. Thank you for inviting me to speak today.

Simply because I passed through the doors of my government

employer to serve the public does not mean that I should be

stripped of my rights as a citizen. Unfortunately, under the recent

Supreme Court decision, I think this is what has happened. And

while I was on the losing end of the Supreme Court decision, I

wasn’t the only one that lost. Millions of other Federal, State and

local government employees also lost.

They lost their right to protection against retaliation for reporting instances of misconduct, fraud, corruption, and abuse that they

witnessed within the course and scope of their employment. But

they also lost their right to perform their jobs as citizens. We have

a genuine interest in ensuring that their government operates competently, efficiently, and within the law.

In my case, I suffered acts of retaliation simply because I was

doing my job. As a deputy district attorney in Los Angeles, I was

empowered to prosecute individuals who are charged with crimes.

I am often called upon to seek the imprisonment of persons

charged with those crimes. Because of this power, I am constitutionally obligated to abide by certain rules of law, evidence, and

ethics.

My job is not to win every case or to secure a conviction in every

case. My job is to do justice. My job requires that only legally obtained evidence be used in the prosecution.

In the case before the Supreme Court, I discovered that several

deputy sheriffs had fabricated evidence, evidence which formed the

basis for probable cause for the issuance of a search warrant. After

I conducted my investigation, confirmed my investigation with several colleagues in my office and conferring with my supervisors, I

prepared a memorandum recommending that the case against the

defendants be dismissed because of this constitutional rights violation.

I was further motivated by the then-developing LAPD rampant

corruption scandal in which several rogue LAPD officers were acVerDate 11-MAY-2000 11:50 Jan 16, 2007 Jkt 000000 PO 00000 Frm 00075 Fmt 6633 Sfmt 6633 D:\DOCS\28966.TXT HGOVREF1 PsN: HGOVREF1
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cused of planting evidence, falsifying police reports, testifying falsely in court, and, in one case, shooting an unarmed man in the back.

However, unfortunately, my supervisors at the behest of the

sheriff’s department, who were concerned of a civil lawsuit being

filed against them by the defendants, demanded the case proceed

and be prosecuted despite my protests. It was shortly thereafter

that I began to suffer acts of retaliation by my employer, from

change in job assignments, to change in job location, to the loss of

a promotion.

And now according to the Supreme Court, government employers

are no longer constitutionally prohibited by the first amendment’s

prohibition against punishing their employees for speaking out on

matters of public concern as long as the disclosure was made pursuant to their job duties.

The first amendment protection will only be afforded if the employee goes outside and holds essentially a press conference on the

front steps of a government building. This is a predicament that is

as perverse as it is illogical.

But government employees’ action will have another option, an

option that I’m fearful that most will now take, and that is the option to keep quiet, to look the other way, to feign ignorance of the

corruption, the waste, the fraud that they witnessed. And if this occurs, it is not only the employee that loses, it is the public that will

lose.

The public will lose their right to know what their government

is doing. The public will lose their right to know what their government officials, their elected officials, are doing; whether their taxpayer money is being spent wisely and appropriately or whether it

is being wasted; whether their government officials are engaged in

corruption or fraud.

This Supreme Court ruling fosters, even encourages, an atmosphere of secrecy in the halls of government, which runs counter to

our Nation’s open form of government. It protects the corrupt, it

protects the lazy, it protects the incompetent. It does not protect—

and, to a certain extent, punishing the honest, the hardworking,

the diligent government employees.

Mr. Chairman, members of the committee, I urge you to take a

leadership role to amend the Whistleblower Protection Act to include protections for employees who disclose instances of abuse,

corruption, and misconduct that they witnessed within the course

and scope of their job duties.

Your actions in this matter will set forth an example, a positive

example for States and other local governments to take similar actions.

I thank you for the opportunity to speak with you today, and I

would be happy to answer your questions.

Chairman TOM DAVIS. Thank you very much.

[The prepared statement of Mr. Ceballos follows:]

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Chairman TOM DAVIS. Mr. Bransford.

STATEMENT OF WILLIAM BRANSFORD

Mr. BRANSFORD. Mr. Chairman, members of the committee, I appreciate the opportunity to testify here this afternoon concerning

how current whistleblower protections may have been

impacted——

Chairman TOM DAVIS. I think you need——

Mr. BRANSFORD [continuing]. May have been impacted by the recent Supreme Court decision. I serve as senior counsel for the professional association that represents Career Senior Executive Service members and other senior-level Federal officials. SEA is pleased

to offer the perspective of the career senior manager regarding

whistleblower reform and first amendment protection for Federal

employees. The Supreme Court’s decision is an invitation to consider change and helps all of us focus on important issues.

Members of the Career SES are uniquely situated because they

need strong tools to manage their employees, but they also need

protection when they observe and disclose wrongdoing. They themselves can be whistleblowers. But at the same time they need to

manage others who claim to have blown the whistle. Hence, from

our perspective, the challenge in any reform is to strike a balance

where Federal employees are encouraged to report wrongdoing and

are assured protection from reprisal, yet at the same time ensures

that Federal work force managers have what they need.

The classic nightmare whistleblower scenario for managers occurs when a difficult or vexing employee who seeks whistleblower

status becomes so entrenched in his or her position that the employee refuses, in an often subtle and sophisticated manner, to

carry out the direction of the supervision, thus effectively sabotaging the project that the whistleblower dislikes. Occasionally, an

otherwise problem employee uses whistleblower laws in an attempt

to become immune from reasonable supervision redirection. This

too ties a supervisor’s hands.

On the other hand, we agree that current interpretations of the

Federal Whistleblower Protection Act do not adequately defend

Federal employees because of interpretations that do not protect

whistleblowers when they make disclosures to the supervision, the

alleged wrongdoer, when they are just doing their job. This is the

same issue that’s presented in Garcetti v. Ceballos and, quite

frankly, it’s been the rule under Whistleblowers Law One that I

have dealt with as a practicing attorney. And under current law if

Mr. Ceballos had been a Federal employee, he would not have been

protected for his whistleblowing activity or—and, as the Supreme

Court found, he was not protected by the first amendment.

Last week, the Senate passed the defense authorization bill

which included S. 494, a whistleblower reform statute that is very

similar in many respects to H.R. 1317 passed by the—referred out

of this committee.

Both of those statutes make significant reforms because they will

allow any disclosure to be protected, even when made in the course

of an employee’s duties. We support that law. We have a couple of

concerns about it. But it does three important things that we think

helps strike the balance. In addition to expanding the definition of

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a disclosure, it also imposes a test that the disclosure has to be reasonably objective. It also says that it excludes policy disputes. And

finally, it gives a manager who’s accused of reprisal the opportunity

to show that the personnel action would have occurred anyway.

We think that those three additions provide balance, and we

would support S. 494 and also H.R. 1317 in that respect.

We do have a concern about both H.R. 1317 and S. 494 because

they seem to change the process. S. 494 would allow appeals to

multiple circuit courts of appeals, which we think would add confusion to an already complex law. H.R. 1317 would create a new

right. We think we ought to try this new change in the law and

see if the current system of the Special Counsel Merit Protection

Board would work better to protect whistleblower rights.

We think—we would recommend and hope that this Supreme

Court decision, which invites State legislatures and the Congress

to enact whistleblower reform, would in fact encourage the consideration of these whistleblower laws, and perhaps the conference

committee and the defense authorization bill would be the place to

do that.

With that, I thank you very much for the opportunity to testify

this afternoon. I look forward to your questions.

Chairman TOM DAVIS. Thank you very much.

[The prepared statement of Mr. Bransford follows:]

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Chairman TOM DAVIS. Ms. Dash. Thank you for being with us.

STATEMENT OF MIMI DASH

Ms. DASH. Good afternoon, Chairman Davis and members of the

committee.

I come before you today as a retired educator of 30 years, and

also my experiences as an advocate for students and teachers

through the local association affiliated with the National Education

Association, having served in all of those leadership positions.

I am pleased to have the opportunity today to address the committee on the importance of employees having the right to speak

freely on issues that they consider of great importance in the workplace.

I would like to give you some examples of areas of concern for

educators that I’ve been aware of and let you know that these are

the gray areas that we find a few stumbling blocks.

First and most important is the area of possible child abuse. I’ll

use the classroom teachers as an example, but there are other educational employees who are exposed to the same kind of conditions.

As a teacher, if I were to suspect the possibility of child abuse, I

would report my suspicions to the principal. It would be up to the

principal to contact Child Protective Services. If for some reason

the principal did not make the contact, what would my options be

at that point? If I were to contact Child Protective Services directly,

that could be considered insubordination. If I were to adhere to the

policy of the county level, I would be risking the safety of the child.

As an advocate for children, I would find it impossible to ignore

the safety of the child. As a citizen, it is my right, and, in my opinion, my duty to protect the child. As a teacher, I can’t imagine it

is any less my right or my duty, and yet there appears to be a conflict.

I cannot stress for you the severity of this dilemma. Most teachers would be torn by this situation. Teachers follow rules, and it’s

very difficult for them to go outside of the rules that are set. I cannot know what choices others would make, but my choice would be

clear. By advocating for the children for whom I dedicated my life,

I could have risked my career. I continued to work in the school

as a substitute and on special projects. I meet with educators

through the FEA in monthly meetings.

Another issue that I’m hearing complaints about, with limited action or no action by the school system, is something that we are

hearing about nationally; and that is the sick schools. We have

many schools in which teachers are chronically ill. Some of those

illnesses are quite serious.

I serve on a committee hearing appeals for those denied shortterm disability insurance. In one of those cases, an employee could

have simply been allowed to transfer to a different location as recommended by her doctor. The school system refused and insisted

she could return to work at the same location. Every time she returned to work, she became sick and had to go out on leave again,

thus negating the terms of the insurance policy.

Many educators have asked for help, and within the system they

get what is called a clean bill of health for their schools, although

the illnesses continue. If teachers are getting sick, what about the

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long-term and lasting effects on the less highly developed bodies of

the children? Going public on this issue could adversely affect the

teachers speaking out about the situation, but isn’t it not only their

right, but also their duty? The expenses that would be incurred by

the school system to correct those problems would be enormous and

most school systems are ignoring it.

These are only two examples, but there are probably many others. There could be bus safety issues, equipment issues, training

issues and more. All of these adversely affect the safety of the educator and the children.

Thank you for your time and attention to this matter and I hope

that it can be resolved favorably.

Chairman TOM DAVIS. Thank you very much.

[The prepared statement of Ms. Dash follows:]

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Chairman TOM DAVIS. Ms. Soronen.

STATEMENT OF LISA SORONEN

Ms. SORONEN. Good afternoon, Chairman Davis and committee

members.

My name is Lisa Soronen and I am a staff attorney for the National School Boards Association. NSBA represents the Nation’s

95,000 school board members serving on 14,500 school boards who

are responsible for educating 48.5 million public school children

and who employ 6 million people.

I am pleased to testify about the implications of Garcetti v.

Ceballos and request that our written statement be submitted for

the record.

Chairman TOM DAVIS. Without objection.

Ms. SORONEN. NSBA filed a brief in Garcetti v. Ceballos because

the Ninth Circuit ruling would have hampered a school district’s

ability to implement curriculum and would have increased

meritless litigation. I would like to offer three lenses to view the

implications of this decision: one, the problems that would have resulted if the Supreme Court upheld the Ninth Circuit; two, the

many other protections available to school employees that limit arbitrary employment actions; and three, the common sense realities

for public schools.

Looking through the first lens, if the court had upheld the Ninth

Circuit it would have made all public employees speech made at

work on any topic of public concern into a potential constitutional

issue. Under these circumstances, local school boards could ultimately lose control of their curriculum as teachers discuss issues

of public concern that have little or no relevance to the curriculum,

or adopt a perspective contrary to the one of parents and communities acting for their school boards that have been chosen.

A different holding would also make it easy for a poorly performing public employee who is facing an adverse employment action

depart to speech on a matter of public concern or manufacture such

speech in order to claim that speech is the real reason for the adverse employment action.

Virtually all employees at some point in their employment discuss matters of concern at work, particularly teachers whose job it

is to speak. For this reason, if the court had ruled differently, almost every employee facing discipline or termination would at least

have a potential first amendment claim. Significantly, constitutional claims give rise to different remedies, including attorneys

fees. These remedies may increase the incentives to raise the

stakes in employment disputes.

NSBA’s concerns are not theoretical. For example, in a case currently on appeal to the Seventh Circuit, an elementary school

teacher expressed her personal opinions about the war in Iraq in

a classroom discussion. After parents complained, the principal

sent a memo asking teachers not to express their personal views

on foreign policy in class. Starting well before this incident, numerous parents had complained about the teacher’s unfair treatment

of students and her poor classroom management skills because of

these performance problems. Her contract was not renewed. She

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brought a first amendment suit claiming that the district terminated her because of her statements about the Iraq war.

At the other end of the political spectrum,teachers in Michigan

had threatened litigation over their supposed first amendment

rights to teach intelligent design. Had the Supreme Court ruled differently in Ceballos, teachers in cases like these, regardless of their

job performance, could express whatever views they had on any

topic of public concern in the classroom, and may be able to raise

first amendment obstacles to school district decisions.

Although Ceballos has been portrayed almost solely as a whistleblower case, it should be clear that the Ninth Circuit ruling might

have protected all speech on any matter of public concern made at

work, including teacher classroom speech.

Moreover, what the employee may perceive to be whistleblowing,

the employer may perceive as the employee trying to substitute his

or her judgment for the employer’s judgment. Policies and implementation studies are just that, a matter of judgment, not matters

of right versus wrong or legal versus illegal. The court’s decision

recognizes that sometimes public employees are just acting like

other employers trying to get the job done. Had the Supreme Court

ruled differently, more routine disagreements between employers

and employees could have become constitutional matters.

Let us look to the second lens. School employees have well-established job security protections, including broad first amendment

protections. Generally, all school employees are protected against

arbitrary disciplinary actions by State statute, principles of due

process collective bargaining agreements in most States, and, in

the case of teachers, tenure loss. With all of these protections,

school boards would be hard pressed to terminate a teacher who

complains to the administration about a matter of public concern

related to the teacher’s official job duties. Public employees may

still be protected by the first amendment for speech made at work

that relates to their job as long as the speech does not relate to

their official job duties.

For example, in 1979 the Supreme Court held in the Gibbons’

case that a teacher who informed the school principal that she

thought the district employment policies and practices were racially discriminatory could be protected by the first amendment,

even though her speech was made at work, even though it related

to her job. Moreover, public employees who have complained about

their employer and want first amendment protection can use public

forums such as a local newspaper for addressing their concerns.

And that takes me to the third lens of viewing Ceballos, some

common sense realities for school systems. Regardless of whether

employees bring first amendment complaints, the practical reality

is that public employers, particularly school districts, are not likely

to summarily fire employees for bringing a valid concern to the employer’s attention. Public employers exist to serve the citizens of

this country and want to treat employees fairly. School boards have

every incentive not to spend their scarce resources arbitrarily punishing school employees who speak out rather than on educating

children. This is especially true where public outcry is likely. It is

even more true in a genuine whistleblower scenario.

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In sum, if the choice is between creating a culture that encourages employees to raise issues about school district operations internally or in creating a culture where employees don’t come forward at all or, instead, air issues publicly, clearly the incentives

are for public employees to make sure employees feel free and, in

fact, feel obligated to discuss their concerns frankly with their employer.

School boards can do this without the first amendment. For all

of these reasons, NSBA supports the outcome of Ceballos in defining the application of this case. Thank you for this opportunity to

testify.

Chairman TOM DAVIS. Thank you very much.

[The prepared statement of Ms. Soronen follows:]

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STATEMENT OF BARBARA ATKIN

Ms. ATKIN. Good afternoon, Chairman Davis and all of the members of House Reform Committee.

I am Barbara Atkin, deputy general counsel of the National

Treasury Employees Union. I thank you for the opportunity to testify concerning the urgent need for congressional action to

strengthen Federal whistleblower protections in the wake of the

Supreme Court’s decision in Garcetti v. Ceballos.

NTE participated in that litigation as an amicus. In order to underscore the vital interest that Federal employees have in freely expressing their views on matters of significant public concern and

the compelling need of the public to hear those views, NTE represents career civil servants who perform functions critical to the

public safety and homeland security or who play a key roll in the

formulation of tax policy or the regulation of the financial industry.

It is essential that these employees be protected from retaliation

when they express their candid, well-informed views on potential

threats to the public welfare.

That protection must extend to internal discussions with their

supervisors and managers, as well as to external disclosures to

Congress, and even to the media.

The Supreme Court, in Garcetti, has stripped disclosures made

in the course of an employee’s duties of any constitutional protection. This speech, however, is precisely the speech that is most vulnerable to suppression by political appointees pursuing their own

agenda who are often intolerant of dissent. It is also the speech

most critical to the public interest.

NTEU calls on Congress to enact reforms to the Whistleblower

Protection Act to protect this speech.

The Federal circuit has held that the Whistleblower Protection

Act does not cover disclosures by employees who are performing

their normally assigned duties in reporting waste, fraud and abuse.

In other words, a NASA safety director or engineer who spots a

safety flaw threatening an imminent space shuttle flight and who

takes the courageous step of urging his superiors to postpone the

flight until the problem is corrected, to the tune of millions of dollars of added expense, cannot now be a protected whistleblower in

the eyes of the Federal Circuit because his duties involve overseeing the shuttle’s construction. Similarly, an FDA employee who

prepares reports to Congress now has no statutory protection if she

objects to her superior’s insistence on watering down the science or

slanting the conclusions to accommodate a politically driven agenda.

Whistleblower legislation cleared by the respective House and

Senate committees, H.R. 1317 and S. 494, would close that major

loophole and correct other judicially imposed limitations as well.

Last week, the Senate approved S. 494 as an amendment to the

fiscal year 2007 Defense authorization bill. NTEU strongly urges

the House to accept S. 494 in the upcoming House/Senate conference on the Defense authorization bill.

The pending legislative reforms also provide some additional important protection to other speech left vulnerable by Garcetti and

by the Federal Circuit; namely, disclosures that amount to mere socalled differences of opinion on debatable policy decisions. S. 494

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and H.R. 1317 would protect disagreements over policy decisions

that evidence a violation of law or other specific serious wrongdoing. Unfortunately, that leaves unprotected many internal policy

disagreements over other key issues. An employee of FEMA, for example, who insists that the agency is poorly led and organized and

who provides telling examples of misguided policies would be highly vulnerable to agency censorship and retaliation unless the employee aired his views in public. Only then would he have any protection, and that would arise under the fifth amendment, not the

WPA.

The court in Garcetti acknowledged this perverse incentive to go

public in the first assistance, which no one believes is consistent

with good government management. NTEU strongly encourages

Congress to explore an option suggested by the Supreme Court in

Garcetti, the establishment of an internal forum for the expression

of dissenting opinions. NTEU has itself negotiated contractual protections for employees at the Food and Drug Administration and

the Nuclear Regulatory Commission who express their personal

opinions. Regulations and directives at those agencies also provide

the right to preserve professional disagreements on the record.

Those provisions may serve as a model for adoption governmentwide.

In conclusion, I urge Congress to keep the provisions in S. 494

in the final Defense authorization bill.

I thank you for this opportunity to address this important issue

on behalf of all of the members of NTEU, and I would be happy

to answer any questions.

[The prepared statement of Ms. Atkin follows:]

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Chairman TOM DAVIS. Thank you very much.

Mr. Bergstrom, thank you for being here.

STATEMENT OF RICHARD J. BERGSTROM

Mr. BERGSTROM. Thank you, Chairman Davis and the other

members of the committee, for the invitation to be here today.

I’m a partner with the law firm of Morrison & Foerster, and cochair of our Labor Employment Group. I work out of our office in

San Diego, CA, which, as it turns out, is just a couple hours away

from where Mr. Ceballos worked as a deputy district attorney.

I’d like to make three basic points this afternoon concerning the

Garcetti decision and its impact on Federal and State whistleblowing protection.

First, we believe that, when properly read and understood,

Garcetti represents a fairly narrow ruling which is unique to the

facts presented to the court. As you’re aware, only a first amendment claim was presented in the matter; there were no other Federal or State claims at issue before the U.S. Supreme Court. The

issue which the Supreme Court addressed was whether a memorandum written by Mr. Ceballos was protected as private citizen

speech or was written pursuant to his official duties.

This is the key question. The Supreme Court noted, in addressing this question specifically, that internal complaints of whistleblowing could still constitute protected activity under the first

amendment. As has been suggested in prior questions and answers

in statements given here today, I would assert that the issue is not

one of internal versus external. The court, on page 1959 of its decision, specifically indicated that internal whistleblower complaints

would still be protected under the first amendment. The question

is whether those whistleblowing activities were made pursuant to

the individual’s official job duties.

Second, the court also noted that whistleblowing complaints directly relating to an individual’s work could also still be protected

under the first amendment. In the Garcetti matter, however, there

are some unique facts. Mr. Ceballos actually testified under oath

that it was his job, he was hired to investigate issues relating to

whether arrest warrants were properly issued, and he was hired to

write advisory memoranda as to those investigations. Based on

these narrow facts, with the claim at issue and Mr. Ceballos’ admission, the Supreme Court then narrowly interpreted these facts

and found that the memorandum was not protected speech, it was

not that of a private citizen and so the first amendment did not

provide protection.

The second issue is that Garcetti is consistent with prior Supreme Court opinions concerning whistleblower protection under

the first amendment. Going back to 1968 in the seminal case of

Pickering, which we’ve referenced earlier today, the Supreme Court

addressed an issue relating to external whistleblowing. A teacher

in that case issued a letter to a newspaper complaining about

spending practices of the local school board. The Supreme Court in

that case found that speech was not part of the teacher’s official

job duties and was protected. Possibly a more instructive case,

given the debate that we’ve had today, is the Givhan case, which

was issued 11 years later. In that case, a teacher complained diVerDate 11-MAY-2000 11:50 Jan 16, 2007 Jkt 000000 PO 00000 Frm 00119 Fmt 6633 Sfmt 6633 D:\DOCS\28966.TXT HGOVREF1 PsN: HGOVREF1
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rectly to the school board principal—purportedly her supervisor—

about school district policy directly relating to her job, that it was

discriminatory. The Supreme Court in that instance was addressing a complaint of internal whistleblowing, which was also job related. The Supreme Court found that this speech was protected. It

was not part of the teacher’s official job duties. In other words, she

was not hired, as Mr. Ceballos was, to conduct an investigation;

she was not hired, as Mr. Ceballos was, to write an internal memorandum, as Mr. Ceballos was and admitted under oath.

It’s important to note that the Supreme Court actually affirmed

the analysis and conclusions in both Pickering and Givhan, and

neither case, the result in neither case would be changed by the

holding in the Garcetti case today.

The last point I’d like to make is that there are a myriad of statutes and common law rights which protect whistleblowers which

are independent from the first amendment.

We’ve talked about a number of the Federal pieces of legislation

today, but with regard to State legislation there are 48 States with

whistleblower protection for government employees. There are 45

States that have adopted common law protection for whistleblowers. And specifically in California, which I think is important

in this matter since that is where Mr. Ceballos was based, significant protections have been adopted as well.

Under California Labor Code, section 1102.5, both private and

public employees are protected from whistleblower activities for reporting violations of Federal and State law. Under California Government Code, section 53298, both city and county employees, such

as Mr. Ceballos, again are protected from whistleblowing activities

relating to gross mismanagement and abuse of authority.

California has also adopted its own Whistleblower Protection Act

which protects State employees. And last, there is a common law

claim in California where an employee believes that he or she has

been improperly demoted or terminated, the individual can state a

claim for wrongful termination in violation of public policy or

wrongful demotion in violation of public policy. Based on this network of protections, the courts have the ability to award compensatory, punitive and even criminal penalties.

Now, none of these claims, as we’ve indicated, were before the

Supreme Court, and the record is not clear as to why Mr. Ceballos

and his counsel chose not to take advantage of these significant

protections. However, what is clear is that the ruling in Garcetti is

likely to have little impact on these laws. No. 1, Garcetti, as I

pointed out, is fairly narrow and unique to its facts; and No. 2, the

protection provided by the statutes is governed by the express language in the statutes themselves.

Thank you very much for the opportunity to testify today.

[The prepared statement of Mr. Bergstrom follows:]

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The CHAIRMAN. Well, thank you very much.

Mr. Goldberg.

STATEMENT OF JOE GOLDBERG

Mr. GOLDBERG. Chairman Davis, Mr. Waxman, and members of

the committee, thank you for both the opportunity to testify today

and also for the work your committee has done and continues to

do on the issue of whistleblower protections.

Now, I essentially abandoned the remarks that I was going to

make here today. I represent the American Federation of Government Employees, the largest Federal employee labor union. We

represent over 200,000 employees.

There is nothing this committee can do concerning the Garcetti

opinion. It is a first amendment analysis which obviously is outside

the purview of this committee’s jurisdiction. However, the Garcetti

decisionmakes obvious the need for statutory whistleblower protection, which is within the purview of this committee.

The Whistleblower Protection Act, which we use daily at the

American Federation of Government Employees to protect our employees, to that extent which they can be protected, essentially is

a dead letter. The decisions of the U.S. Court of Appeals for the

Federal Circuit have limited the plain language of the Whistleblower Protection Act to a surreal set of circumstances. So the

Whistleblower Protection Act as to Federal employees essentially

no longer exists. It’s up to this committee to repair the damage

done to the Whistleblower Protection Act by the Court of Appeals

for the Federal Circuit.

We commend the chairman and this committee for its work in

H.R. 1317, which is attempting to repair that damage.

Thank you very much.

[The prepared statement of Mr. Goldberg follows:]

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Chairman TOM DAVIS. Thank you very much.

Ms. Dash, let me start with you. What is within a teacher’s job

description? Because that’s central through the whole case. Can

you—you’re a veteran and a leader and a professional.

Ms. DASH. Anything and everything that is asked of us.

Chairman TOM DAVIS. So reporting abuse is clearly within that?

Ms. DASH. Yes, but reporting it to the principal. It’s limited to

the supervisor.

Chairman TOM DAVIS. Reporting environmental hazards would

be obviously part of it?

Ms. DASH. Correct.

Chairman TOM DAVIS. OK.

Ms. DASH. The problem lies with where it goes after that if nothing happens at the next level.

Chairman TOM DAVIS. Commenting on curriculum, that would

also be part of the duty, wouldn’t it? Or would it not? Is that where

it gets fuzzy?

Ms. DASH. I guess it depends on how courageous you are.

Chairman TOM DAVIS. You’d think they would want your input,

right?

Ms. DASH. You would, wouldn’t you?

Chairman TOM DAVIS. Ms. Soronen, let me ask you the same

question.

Ms. SORONEN. Justice Kennedy, in writing the majority opinion,

specifically states, we reject, however, the suggestion that employers can restrict employees’ rights by creating excessively broad job

descriptions.

That I think is a specific admonishment to a lower court that

they likewise cannot create excessively broad job descriptions to

limit an employee’s rights.

I guess how this issue will play out will be ultimately determined

by a lower court and the Supreme Court, if they ever take a case,

defining what exactly an employee’s job duties means under this

case. The majority was clear, it was to be defined narrowly.

I think of teachers, teaching job duties in the classroom are

clearly a part of their official job duties. Reporting things like

abuse and neglect, which might be the obligation of all school listed

employees, or commenting on air quality and the like are probably

not part of a teacher’s official job duties. But I guess that’s for the

lower courts to decide. The Supreme Court spoke resoundingly on

the fact that job descriptions are to be defined narrowly.

Chairman TOM DAVIS. OK. Thank you. I’ve been summoned to

the floor, but Mr. Issa is going to take over questioning for our

side, and I know Ms. Watson has some questions.

Ms. WATSON. I want to thank all the panelists. And I still have

a bit of confusion. There’s been reference made to H.R. 1317, and

then reference made to Senate bill 494. Let me—I notice that Mr.

Khon is no longer in the audience, but let me ask Mr. Goldberg,

how would H.R. 1317 and S. 494 apply to the case under consideration, or the Supreme Court decision?

Mr. GOLDBERG. Again, the statutory revisions contemplated by

Congress in H.R. 1317 and S. 494 would repair the Whistleblower

Protection Act, which essentially, as I said in my testimony, is a

dead letter. One of the ways it would do this is explicitly recognize

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that the type of input that an employee can make internally would

explicitly be protected. And when an employee such as a NASA employee on the space shuttle, an engineer on the space shuttle reports to a supervisor what he believes to be a deadly threat to

health and safety, that explicit complaint—which is covered by that

person’s job description—would be protected activity.

Again, perversely now, the very experts that we rely on and that

we’ve hired to do the job are not protected when they express their

professional opinion on matters of life and death. And H.R. 1317

and S. 494 would go a long way toward repairing that gaping hole

in the Federal Whistleblower Protection Act.

Ms. WATSON. Well, my question is, was this particular case

brought to court under the wrong provision, because it had to do

with first amendment? If these two bills become the law, then they

would cover Mr. Ceballos?

Mr. GOLDBERG. Actually, they probably would not. What we have

are two different methods of trying to protect whistleblowing, both

the constitutional method, which is the Garcetti decision, and the

statutory method. Now again, when the Supreme Court has spoken, as the highest court in the land, as to the first amendment,

the scope of the first amendment, there’s nothing this committee

can do to affect that. But there are statutory protections that this

committee certainly can invoke and legislate that would protect the

same whistleblowing activity.

So essentially you would have two different methods of enforcing

the whistleblower protection; one, constitutional. Now, we have

heard the limits of that in Garcetti and in various comments today.

The second is a statutory protection, which was not involved in

Garcetti, and that is what this committee can do in its amendments

to the Federal Whistleblower Protection Act.

Ms. WATSON. Well, could Garcetti be taken back to court if these

two passed?

Mr. GOLDBERG. The short answer——

Ms. WATSON. This went up to the highest court, but it was an

interpretation of the protection of the first amendment?

Mr. GOLDBERG. That is correct. And the case has been—as I understand it, the case has been remanded to a lower court. As to the

addition of a subsequent Federal law to the previous discipline involved in that case, that would be the ex post facto application of

a subsequent law, which might be problematic.

Ms. WATSON. Mr. Bergstrom.

Mr. BERGSTROM. Ms. Watson, just to clarify, we have three buckets of employees seeking protection for whistleblowing activities;

you have Federal employees, you have your State or local government employees, and then you have your private sector employees.

And I think to—not to get overly bogged down in the legal intricacies of your question, but I think that the bills which are proposed

would be amendments to protections which would apply to a Federal employee. In this instance Mr. Ceballos was an employee of

the county of Los Angeles. So the easy answer to your question is

no, it wouldn’t have any affect on Mr. Ceballos.

Ms. WATSON. Well, I have a great amount of interest because,

No. 1, I am a Representative from Los Angeles County; No. 2, I

know of the case; and No. 3, Mr. Ceballos made reference to anVerDate 11-MAY-2000 11:50 Jan 16, 2007 Jkt 000000 PO 00000 Frm 00219 Fmt 6633 Sfmt 6633 D:\DOCS\28966.TXT HGOVREF1 PsN: HGOVREF1
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other case where under Federal law to be able to mediate the actions of those involved. And what I’m trying to get through here

is where then do we address a new policy that would have an impact on a person in the county of Los Angeles or any other county

in the United States? What would we have to do, Mr. Goldberg, to

give him the protections?

Mr. GOLDBERG. Again, I represent Federal employees, and there

are certain limits to the power of the U.S. Congress to protect a

State employee; however, as long as that employee could be

brought under the purview of, say, the Commerce Clause, by passing Federal legislation, then it is possible for the Federal Government to effect and essentially grant statutory whistleblower protection rights to State employees, but it would be a question of federalism versus States rights.

Ms. WATSON. Let me just ask this if I might, Mr. Chair. Could

the Federal Government then require all States to relook at their

whistleblower laws under the situation concerning Garcetti?

Mr. GOLDBERG. That’s certainly possible. And it is also, again,

certainly possible that the Federal Government could pass a law

that would—the Federal law would cover the whistleblower protections of State and municipal government employees.

Ms. WATSON. That might be a direction to go in, that we could

initiate here at the Federal level?

Mr. GOLDBERG. That’s correct. But again the Supreme Court has

shown itself somewhat conversant with the limits of Federal power

vis-a-vis purely State activities. So the Congress would have to be

careful to indicate the interstate aspects of the protections that it

seeks to expand to State or municipal employees.

Ms. WATSON. Well, what we could do—and this is to the Chair—

is that we might want to have certain States to take a look at their

whistleblower protections relative to the Garcetti decision that really addresses Federal employees. This case is brought to us—this is

a county employee, and we’re discussing it here under a Federal

framework. And so it might be something that we could address by

having States look at these laws and see if there is an application

to their own employees.

Mr. GOLDBERG. That’s certainly correct. And of course Federal

money to flow down through the States and to the municipalities,

and that may be a method of using Federal authority to grant certain statutory rights that the Supreme Court did not feel emanated

from the Constitution, but that the Federal Congress believes are

in the best interests of the citizens of the United States to grant

to State or municipal employees.

Mr. ISSA [presiding]. The gentlelady’s time is up.

Mr. Bransford, you seem to want to weigh in.

Mr. BRANSFORD. Yes, I wanted to address Ms. Watson’s question.

If S. 494 or H.R. 1317 were to pass and if Mr. Ceballos was a

Federal employee, he would be protected, in my opinion. And if the

Congress were to pass either version of those laws, I think it would

serve as a good leadership example to the States to pass similar

whistleblower protections.

Ms. WATSON. But he is not a Federal employee.

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Mr. BRANSFORD. It wouldn’t protect him, but it would protect

Federal employees engaged in similar behavior who are not now

protected.

Ms. WATSON. And I’m trying to get to how—we’re discussing this

case, which is local to the State of California and the county of Los

Angeles.

Mr. BRANSFORD. I think it is mostly up to the State of California.

Mr. ISSA. The gentlelady did a great job. I would have let you go

on longer.

I’ve got just a couple of questions, and if you’d like a second

round, we can come back until the bell rings for the vote.

I think, Mr. Ceballos, I’d like to sort of set one thing straight.

You’re presently working for the county of Los Angeles?

Mr. CEBALLOS. Yes.

Mr. ISSA. You’re continuing to pursue your case?

Mr. CEBALLOS. Yes.

Mr. ISSA. Although you’ve gone a long way, you’re here today testifying before Congress, your own time, your own dime, as I understand?

Mr. CEBALLOS. Correct.

Mr. ISSA. I guess the question is why? Many people in your situation, with your education, your talents, your capability, very portable, would have simply moved on. Why do you stay there doing

the job you’re doing?

Mr. CEBALLOS. Well, I ask myself that question I think almost

every day. I think simply because I know I’m doing the right thing.

Back then I knew I was doing the right thing, and I continue to

believe I’m doing the right thing. And I think it’s important that

public employees feel that when they are acting in the best interests of their employer and the public, that they be afforded the protection to act in that best interest. And even though there is nothing that this panel can do that will change what has already occurred to me or change this decision, if it helps future government

employees then I will do everything I can to help in that regard.

Mr. ISSA. Well, sir, often in Washington we quote this, you know,

where do I go to get my reputation back. You don’t have that problem. Your reputation is intact inspite of all the trials and tribulations that you’ve gone through. So I would certainly—this committee supports and continues to promote the ability of people to

break through the bureaucracy and report wrongdoing for the benefit of all the people of the United States. So I commend you for

staying with it. Like I said, I had to ask why you did it. As a Californian, we’re both Californians, you know, I applaud that you are

staying on the job. Now I’m San Diego. And if you ever decide to

move to another county, you know, we could use some good people.

Sorry, my ranking member here and I constantly try to figure

out whether in fact Los Angeles—San Diego is what Los Angeles

was when people went there.

I do have one more sort of critical question. Why did you decide

to raise this as a first amendment claim rather than a claim under

statutory whistleblowers? That, to a great extent, is what elevated

you to the Supreme Court.

Mr. CEBALLOS. Right. I think at the time myself and my lawyers

felt that the first amendment provided us with the means and the

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protections to address our grievances and pursue our remedies. At

the time we did not believe that the California law—which is,

frankly, better than most other States—provided the means and

the protection. And it’s still not clear if it does that.

Mr. ISSA. Well, let me explore a slightly different line that probably broadens the question a little bit. As we look at conferencing

our legislation and trying to have the best—and particularly for

Mr. Goldberg—it is unlikely that this Congress is going to try to

reach down and usurp all States rights on the whistleblower. It

hasn’t been a tendency and I don’t think it should be. I don’t think

the ranking gentlelady would think that we should preempt because when you start preempting, you never know when it will

end. However, so many actions in States do involve moneys of the

Federal Government and in effect on Federal moneys being spent.

Would you say that a narrowly crafted statute that would apply

Federal whistleblowers, if that specific action had a direct link to

the prosecution of Federal dollars—and I’ll just give you an example so that at least we can work in that rhetorical sense. If, for example, a law enforcement officer, State law enforcement officer like

yourself or a policeman were prosecuting using Federal dollars on

a State case—let’s say gang violence—and that in fact it was going

to lead to a waste of those dollars, do you think it would be appropriate for us to include that in our legislation such that the Federal

interest would occur in the sense that a State whistleblower would

be in fact effectively reporting the loss of Federal dollars or the

misspending of specifically Federal dollars? If that link can be

made, do you think that would be appropriate and effective in helping to bring some common denominator that other States may

choose to follow?

Mr. GOLDBERG. Certainly that could be an approach. I would not

recommend—I don’t think my organization would recommend a

preemption of State law, but—as we have the 50 States as a laboratory—but certainly the Federal law could provide a floor and an

independent cause of action regardless of an individual State’s law,

especially if it involved Federal dollars. But preemption of State

law, I understand, is probably not at the forefront of this committee’s intent at this time, but it’s not required either and we’re not

suggesting it.

Mr. ISSA. OK. One final question, and I’d like to make sure the

gentlelady has time before we trot to our vote.

Mr. Bergstrom, in light of the Supreme Court decision, how

would you advise a client to pursue a similar claim today? In other

words, same facts, Supreme Court decision there, what remedies

would you choose based on what’s available, and then you can hypothecate whether some of this becomes law.

Briefly, so the gentlelady gets her question.

Mr. BERGSTROM. Absolutely. I will just be direct and to the point.

It would depend, of course, on which category the employee falls

into, because as we’ve discussed, the framework of laws that protect whistleblower activities depend on whether you’re Federal,

State or private sector. Assuming that you are a California State

public sector employee, you could take advantage of California

Labor Code, section 1102.5, which protects both private and public

sector employees for reporting violations of Federal or State law.

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That claim in and of itself also specifically protects reports that are

made by a government employee internally to his or her supervisor,

which is one of the suggestions that was made earlier today.

So I would suggest that, as to California, it’s well on its way, as

many other States are, with adequate whistleblower protections.

California also has its own independent Whistleblower Protection

Act, which protects State employees, and then it has a separate

procedure which protects city and county employees under Government Code, section 53298.

And last, the employee certainly, if they were demoted, as Mr.

Ceballos has asserted that he was, or if they were terminated, as

some employees assert that they are, in response to making a whistleblower complaint, then they would have a common law claim for

wrongful termination or wrongful demotion in violation of public

policy.

Mr. ISSA. Now as a San Diego non-lawyer to a San Diego lawyer,

you didn’t mention the fact that when Mr. Ceballos protected or attempted to protect somebody from an incarceration when in fact

they should not have been incarcerated, in his opinion, he was protecting somebody from a wrongful imprisonment, from a denial of

federally protected civil rights. Would you consider that in fact in

this case, because it was law enforcement trying to prevent a

wrongful breach of somebody’s federally protected civil rights—we

have a right not to be wrongfully imprisoned— that had any merit

that would have brought it to the Supreme Court with a different

outcome?

Mr. BERGSTROM. That may be a question better asked to Mr.

Ceballos’ counsel at the time. Honestly it is not an issue that I had

considered previously.

Mr. ISSA. Thank you.

The gentlelady.

Ms. WATSON. Thank you very much, Mr. Chairman.

I just wanted to say to Mr. Ceballos, it was courageous of you

to come here, and I commend you, because what we would like to

have is more honesty in government. And I’m very familiar with

the case that you reference. We watched it very closely. It wasn’t

in my district, but at one time it was in my school district—I was

on the school board then. I was very interested in the comments

of the two people representing educational organizations. And I

would say to you, I think it’s been remanded down to another

court.

Mr. CEBALLO. Ninth Circuit.

Ms. WATSON. What are you seeking? What kind of relief and

remedy are you seeking?

Mr. CEBALLOS. I think we’re waiting to hear from the Ninth Circuit to see what they want us to do.

Ms. WATSON. If you will leave your card here with the staff, I

would appreciate it. I’d like to get in touch with you privately.

Mr. CEBALLOS. I will.

Ms. WATSON. Thank you very much, panelists.

Mr. ISSA. And I would like to thank, once again, all the panelists.

The record will stay open for 5 legislative days so that you may

include additional extraneous materials. And if you don’t mind, if

there are any questions from people who were not able to be here,

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they’ll be submitted to you in writing. And with that, we stand adjourned.

[Whereupon, at 2:17 p.m., the committee was adjourned.]

[The prepared statement of Hon. Jon C. Porter and additional information submitted for the hearing record follow:]

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