Public Employees Lose Whistleblower Claims

(CN) - Two Georgia public works employees who were fired for reporting sewer overflows are not protected under the First Amendment, the 11th Circuit ruled. The circuit court ruled that the Clean Water Act does not allow for a private right of action, and the job-related reports did not qualify as citizen speech.

Daisy Abdur-Rahman and Ryan Petty were hired by the DeKalb County Department of Public Works in fall 2004 to write county ordinances for fat, oil and grease disposal, but when they requested information on sewer overflows, supervisors told them they were being "too scientific" and "too thorough." Their job was expanded in early 2005 to examine whether grease was causing sewer overflows, and when the two complained that sewer overflows were not being reported, they were fired.

The reports about sewer overflows were entirely job-related, and not a matter of public concern, the federal appeals court in Atlanta ruled.

The "unique, trusted" position of public employees, Judge Pryor wrote, precludes them from using job-related information to speak out freely against the government, because such a practice would hinder the government from functioning. The court cited a Supreme Court holding that public employees who make job-related statements are not speaking as citizens under the First Amendment, and such speech is not insulated from employer discipline.

The inspectors argued that reporting sewer overflows was not in their job description, but the 11th Circuit ruled that the inspectors' concerns about Act violations were so entrenched in their jobs that they "initiated their own field inspections."

Enabling employees to seek constitutional protection for any statement that does not fit their exact job description would "shift control over official communication from the public employer to the public employee," Pryor wrote. This logic would allow government employees to request nonpublic information using their job for justification and then demand constitutional protection for whatever they said about that information.

The court affirmed judgment for the supervisors, finding that the inspectors were not protected by the Act's whistleblower provision or the First Amendment.

Dissenting Judge Barkett said public employees do not surrender First Amendment speech rights by virtue of working for the government. Sacrificing First Amendment rights for "managerial efficiency is the exception, not the rule," Barkett wrote.

Public employees are both employees and citizens, Barkett explained, and when they voiced concerns about sewer spill violations discovered during their routine inspections for fat, oil and grease disposal, they were speaking as "concerned citizens" and not public employees.

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