U.S. Supreme Court rules
‘No free speech at work’
By DON LOVING
The U.S. Supreme Court on May 30
restricted the free-speech rights of the
nation’s 21 million public employees,
ruling that the First Amendment does
not protect them from being punished
for complaining to their managers about
possible wrongdoing. However, a Port-
land labor attorney says Oregonians
have some additional protections under
state law.
In a split 5-4 decision, the Supreme
Court said although government em-
ployees have the same rights as other
citizens to speak out on controversies of
the day, they do not have the right to
speak freely inside their offices on mat-
ters related to their official duties.
“When a citizen enters government
service, the citizen by necessity must
accept certain limitations on his or her
freedom,” said Justice Anthony
Kennedy, rejecting a lawsuit brought by
a Los Angeles County prosecutor.
The 5–4 decision came in a case in-
volving Richard Ceballos, a former Los
Angeles County deputy district attor-
ney. According to news reports, Cebal-
los says he was demoted, transferred
and denied a promotion and that his su-
periors created a hostile work environ-
ment after he wrote a memo to his su-
periors asserting that false information
was used to obtain a search warrant in a
drug case.
Ceballos advised his superiors to
drop the case related to the warrant —
but instead, they proceeded with the
prosecution. He then informed the de-
fense team of his findings and, when
subpoenaed to testify, he told the court
about the lies used to obtain the search
warrant.
It was after his testimony that Cebal-
los says his superiors retaliated against
him. He then filed suit charging his First
Amendment rights had been violated.
The AFL-CIO filed a brief in support
of Ceballos.
Lawyers for government whistle-
blowers denounced the ruling as a ma-
jor setback. They said it could threaten
public health and safety. Public sector
hospital workers who know of dangers
may be discouraged from revealing
them, while police and public employ-
ees may be dissuaded from exposing
corruption, they said.
“This decision gives constitutional
sanction to those who would fire a pub-
lic worker for stepping forward to pre-
serve the integrity of our public institu-
tions as a government whistleblower,’”
said American Federation of State,
County and Municipal Employees
President Gerald McEntee.
“This is bad, very bad from a na-
tional perspective,” said Oregon AF-
SCME Council 75 senior political co-
ordinator Mary Botkin.
While agreeing that the national high
court ruling is a setback, labor attorney
Barbara Diamond of Smith, Diamond
& Olney notes that Oregon has its own
whistleblower law.
What a day for the
‘Unions For Kids’
motorcycle ride
N
early 300 motorcycle riders participated in the fourth
annual “Unions For Kids”motorcycle ‘Poker Run’
June 10. “It was a record turnout, and we’ll raise a record
amount of money for the kids at Doernbecher,” said Lee
Duncan, a business representative of Portland-based Elec-
trical Workers Local 48, who helped found the event.
All proceeds from the ride and raffle go to Doernbecher
Children’s Hospital. Since its inception, the event has raised
more than $16,000. The amount raised this year had not
been finalized at press time.
Participating in the event for the first time was James
(Jimbo) Brennan, a member of Painters Local 10 (photo
right, on the motorcycle). Brennan and riding mates Teresa
Chadwell and Gus Gustafson were stopped at a check-point
in Sandy, Oregon, where bikes lined both sides of city block
on Highway 26. A poker run consists of riders going to five
check-points,where they draw a playing card for a poker
hand. At the end of the ride — in this event, a 100-mile
course that took riders past Crown Point on the Old Co-
lumbia River Highway (top photo) — the highest hand
wins a cash prize.
A large portion of the “Unions for Kids” proceeds came
from a drawing for a Harley-Davidson low-rider. In the
photo below, 2-year-old Stirling Walker and her mom Shan-
non prepare to draw the winning ticket as Lee Duncan and
Dave Tully quiet the crowd. The winner of the bike was
Robert Borman of Gresham, a new member of Local 48.
PAGE 12
NORTHWEST LABOR PRESS
“First, the Supreme Court decision
was 5-4, which means a similar case
framed slightly differently could end
with a different result,” said Diamond.
“And second, we do have some limited,
added protections under Oregon law.”
Oregon has a broad “freedom of
speech” clause in its State Constitution;
however, Diamond notes the Oregon
Legislature has never written parallel
statutes that create an easy mechanism
for legal remedies.
“There’s the constitution, and there’s
the law,” noted Diamond. “While you
can sue for legal protections under the
constitution, it’s much easier if there are
statutes in the law to base a case on.
Oregon’s free speech laws aren’t
whistleblower protections per se, but
they are part of the mix.”
Oregon Revised Statutes 659(a) are
in fact distinct whistleblower protec-
tions, though Diamond notes the law
doesn’t make people bulletproof or al-
low them to say anything they want to
say, especially as an employee of a cer-
tain governmental agency.
“Really, this underscores the impor-
tance of our unions,” said Diamond. “If
you’ve got something to say — be it on
the job, in a letter to the editor or what-
ever — make sure you’re saying it as a
citizen rather than as an employee, or
better yet, when possible say it as part
of the union. There’s much more lee-
way for a union to be critical of an
agency. Regardless, we would take
strong action should a union member
ever be fired for what we considered a
whistleblower situation.”
Some public employee union con-
tracts also include “extra” protections
that may not be “whistleblower” in
name but offer some protections in the
same vein.
For example, the AFSCME Local
3336 (Department of Environmental
Quality) contract includes language
governing “professional differences of
opinion.” Council 75 staff representa-
tive Issa Simpson said that clause has
come into play once during her tenure.
“We grieved this article once and
took it to mediation where we got what
we needed for the member — reinstate-
ment to a project where a regulated
company had asked to have her re-
moved from her duties on the project,”
said Simpson. “Following the com-
pany’s request, the agency began ad-
dressing what it called ‘communication
issues’ on the part of our member and
removed her from the project. She had
been recommending technically sound
water quality testing procedures that
would have cost the company more
money than they wanted to spend, and
this is an outfit with a lot of clout in
Eastern Oregon.
“Ultimately, the member was re-
turned to the project, but it was a diffi-
cult issue.”
(Editor’s Note: Don Loving is public
affairs director of AFSCME Oregon
Council 75.)
JUNE 16, 2006