Fired Whistle-Blower Finds a Friend in SCOTUS

     WASHINGTON (CN) – The Supreme Court on Thursday revived retaliation claims by a community college official who blew the whistle on public corruption in Alabama.
     Edward Lane had been among 29 employees with fewer than three years of service whom Central Alabama Community College laid off amid substantial budget cuts in 2009.
     The school’s president, Steve Franks, rescinded nearly all of those terminations, but Lane was one of only two employees kept out.
     Lane claimed that his work rooting out misspent funds in the school cost him his job and sued Franks for violating his First Amendment rights.
     Indeed, Lane’s whistle-blowing had been a source of headlines in Alabama since the school hired him as probationary director of Central Alabama Community College’s Community Intensive Training for Youth program (CITY) in 2006.
     While looking over the at-risk-youth program’s finances, Lane learned that then-state Rep. Suzanne Schmitz was listed on the group’s payroll but was not reporting for work and had not otherwise performed tangible work for the program.
     Lane directed Schmitz to report to work and fired her when she refused.
     Court records show that Schmitz sued to get her job back and told one of Lane’s CITY employees that she had a special message for Lane.
     If Lane asked the Alabama Legislature for money, she allegedly planned to tell him, “you’re fired.”
     Lost income was the least of Schmitz’s problems, however, as the FBI contacted Lane for its investigation of her.
     Pursuant to a subpoena, Lane testified before a grand jury and at Schmitz’s 2008 federal criminal trial for mail fraud and fraud involving a program receiving federal funds.
     He said Schmitz claimed to have gotten the job with his program through her connections with the executive secretary of the Alabama Education Association.
     Schmitz’s first case ended in a mistrial but she was convicted in 2009 with yet another bout of testimony from Lane. Her 30-month sentence concluded in 2012.
     This timeline failed to sway a federal judge in Lane’s suit, however, and a three-judge panel of the 11th Circuit affirmed last year, finding no evidence of retaliation.
     The Supreme Court took up the case in January and found Thursday that Lane’s speech is entitled to First Amendment protection.
     “The first inquiry is whether the speech in question – Lane’s testimony at Schmitz’ trials – is speech as a citizen on a matter of public concern,” Justice Sonia Sotomayor wrote for the unanimous court. “It clearly is.
     “Truthful testimony under oath by a public employee outside the scope of his ordinary job duties is speech as a citizen for First Amendment purposes. That is so even when the testimony relates to his public employment or concerns information learned during that employment. In rejecting Lane’s argument that his testimony was speech as a citizen, the Eleventh Circuit gave short shrift to the nature of sworn judicial statements and ignored the obligation borne by all witnesses testifying under oath.”
     Though Franks has immunity, the court said that the college’s acting president, Susan Burrow, could be liable in her official capacity.
     The 11th Circuit had apparently declined to consider this issue after the lower court dismissed those claims as barred by the 11th Amendment.
     Sotomayor also emphasized that it is important to protect the speech of employees such as Lane in a public-corruption scandal.
     “It would be antithetical to our jurisprudence to conclude that the very kind of speech necessary to prosecute corruption by public officials – speech by public employees regarding information learned through their employment – may never form the basis for a First Amendment retaliation claim,” the 17-page opinion states. “Such a rule would place public employees who witness corruption in an impossible position, torn between the obligation to testify truthfully and the desire to avoid retaliation and keep their jobs.”
     A brief concurring opinion emphasizes that resolution of Lane’s case “requires little more than a straightforward application of” the court’s 2006 decision Garcetti v. Ceballos.
     “We accordingly have no occasion to address the quite different question whether a public employee speaks ‘as a citizen’ when he testifies in the course of his ordinary job responsibilities,” Justice Clarence Thomas wrote, joined by Justices Antonin Scalia and Samuel Alito. “For some public employees – such as police officers, crime scene techni­cians, and laboratory analysts – testifying is a routine and critical part of their employment duties. Others may be called to testify in the context of particular litigation as the designated representatives of their employers. The court properly leaves the constitutional questions raised by these scenarios for another day.”

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