Whistleblowers need protection under federal law

THE ISSUE The Supreme Court has declared that the Constitution does not protect the free-speech rights of government whistleblowers.

FEDERAL employees have lost a U.S. Supreme Court ruling that strips them from job protection when they speak out as citizens against wrong- doing in their offices. The decision should prompt federal legislation to establish such protection for the employees and the public.

By a 5-4 vote, the high court overturned the 9th U.S. Circuit Court of Appeals, which had ruled that a Los Angeles County prosecutor's First Amendment rights had been violated by retaliation for his blowing the whistle on suspected violations of the law. Justice Anthony M. Kennedy wrote that "the Constitution does not insulate" government employees from "employee discipline."

Fortunately, the ruling does not affect the protection afforded to Hawaii's county and state employees, along with employees of private companies, who are shielded under the state's 1993 whistleblower law. That statute prohibits firing, threatening or discriminating against an employee for reporting or being about to report a workplace violation of the law to the employer or publicly.

The Hawaii law protected an honest city liquor inspector who blew the whistle on corruption several years ago and wore a wiretap to gather bribery evidence leading to the conviction of liquor inspectors. The whistleblower law also has been evoked to protect employees from retaliation by private companies.

In the case before the Supreme Court, Richard Ceballos, a Los Angeles deputy district attorney, accused a deputy sheriff of making "serious misrepresentations" in an affidavit used to obtain a search warrant in a drug case. His supervisors pressed ahead with the case, and Ceballos was passed over for a promotion, demoted and transferred to another office.

In overturning the 9th Circuit, Kennedy wrote, "When a citizen enters government service, the citizen must accept certain limitations on his or her freedom." He said Ceballos "did not act as a citizen" by writing a memo about the search-warrant affidavit but wrote it "because that is part of what he was employed to do."

The Bush administration sided with Los Angeles County, saying protection of whistleblowers would give them constitutional protection for performing their duties "to the dissatisfaction of the employer." Instead, because of the ruling, employers can be satisfied that they are protected from exposure of their wrongdoing.

In dissent, Justice David H. Souter pointed out that Hawaii is among a handful of states that give broad whistleblower protection to employees. Those and others providing lesser protections "add up to a patchwork," he added.

Souter pointed out that the 1989 federal Whistleblower Protection Act requires a federal employee complaining of retaliation to show "irrefragable proof" -- i.e., evidence impossible to refute -- that the boss was not acting in good faith and was not in compliance with the law. That places an absurd burden on the whistleblower and needs to be changed.