Wednesday, May 13, 2009

Daisy Abdur-Rahman v. John Walker

May 11: In the U.S. Court of Appeals, Eleventh Circuit, Case No. 08-12345. The appeal presents the question whether reports by compliance inspectors of a water and sewer department that “owe[ their] existence” to investigative duties assigned to the inspectors are protected by the First Amendment from managerial discipline. The Appeals Court cites Garcetti v. Ceballos, 547 U.S. 410, 421, 126 S. Ct. 1951, 1960 (2006).

Daisy Abdur-Rahman and Ryan Petty, inspectors formerly employed by the Department of Public Works of DeKalb County, Georgia, appeal a judgment on the pleadings against their complaint and in favor of their former supervisors, John Walker and Chester Gudewicz Jr. The inspectors complained that their employment was terminated in retaliation for reporting to their supervisors about the compliance of the county with the Clean Water Act, in violation of rights secured by the whistleblower provision of the Act, 33 U.S.C. §1367(a), and the First Amendment, 42 U.S.C. § 1983. The inspectors’ reports to their supervisors were based on investigations of sewer overflows the inspectors performed as part of their assigned duties.

The district court concluded that section 1983 does not provide a private right of action for violations of the Clean Water Act and the job-related reports of the inspectors were not citizen speech protected by the First Amendment. In a split, 2-1 opinion, the Appeals Court affirmed the district court decision.

The majority explained further, "At every turn, the argument of the inspectors is incompatible with the precedents of our Court and the Supreme Court that limit the claims of government employees under the First Amendment to citizen speech on matters of public concern. To remain faithful to these precedents, we must review the whole record, and we cannot focus exclusively on whether the inspectors were required to speak. We cannot separate the statements the inspectors made from the official responsibilities to which those expressions were related. We affirm the judgment that the inspectors’ complaint under the First Amendment fails as a matter of law."

The dissent indicated, "I dissent, believing that the majority has misapplied First Amendment principles to the facts of this case. . . the sacrifice of First Amendment rights by public employees in the interest of managerial efficiency is the exception, not the rule. To that end, the Supreme Court has ensured the broadest possible First Amendment protection for public employees by, among other things, holding specifically that the government’s managerial interests do not necessarily outweigh the rights of the employee to speak on a matter of public concern simply because the speech relates to his or her employment, nor, for that matter, because he speaks to his co-workers or supervisors rather than to the public. See, e.g., Garcetti v. Ceballos, 547 U.S. 410, 420-21 (2006)."

Access the complete opinion (
click here).

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