Showing posts with label retaliation. Show all posts
Showing posts with label retaliation. Show all posts

Monday, September 27, 2021

FOIA requesters need protection against retaliation; in egregious case, court allows First Amendment theory

Intersection of state highways 42 & 61 in Conyngham Town, Pa.
(2019 photo by Mr. Matté CC BY-SA 3.0)
A bizarre FOIA case decided by the Third Circuit suggests that use of an open records act in the public interest triggers constitutional protection against retaliation under the First Amendment.

A businessperson and landlord in Conyngham, Pennsylvania, John McGee used the state freedom of information act (FOIA), called the Right to Know Act, to investigate his suspicions of financial malfeasance in town government.  A town supervisor then sent to McGee, you read that correctly, a demand for private business information, purportedly issued in the name of the town and under the authority of the FOIA.

McGee asked the board of supervisors for an explanation, and they refused to give any.  In a lawsuit, McGee alleged violation of substantive due process rights and the First Amendment.  He alleged that he did not know that the town's demand was unlawful and unenforceable.

The district court dismissed both counts; the Third Circuit reversed and remanded on the First Amendment claim.  The court explained:

In order to prevail on a retaliation claim under the First Amendment, “a plaintiff must … [prove]: (1) constitutionally protected conduct, (2) retaliatory action sufficient to deter a person of ordinary firmness from exercising his constitutional rights, and (3) a causal link between the constitutionally protected conduct and the retaliatory action.” Thomas v. Indep. Twp.... (3d Cir. 2006). There does not appear to be any dispute that McGee engaged in constitutionally protected speech, nor that there was evidence of a causal link between his speech and the Right-to-Know request [supervisor Linda] Tarlecki gave him.

Only the middle prong was at issue on appeal, and the court found sufficient evidence for McGee to fend off summary judgment.  The test for deterrence is objective, the Third Circuit emphasized, so it doesn't really matter whether McGee was deterred as a matter of fact.

What intrigues me about the case is the apparently non-controverted question of element (1).  The Third Circuit opinion is ambiguous on what serves so self-evidently as McGee's constitutionally protected conduct.  McGee previously had been critical, in public testimony, of the board of supervisors for how it managed the housing code, but that doesn't seem to be the impetus for retaliation here.  His FOIA request may be construed as a petition of government or as a precursor to further public criticism.  The court did not specify.

In the law of the United States, at the federal level and in most states, requesting access to information is a statutory privilege, not a constitutional right per se.  There is a strong argument that the distinction is immaterial to attachment of the First Amendment right to petition to a FOIA request.  But de facto, in my work in FOIA advocacy, retaliation against FOIA requesters is a real and serious risk.  When asked for counsel by persons contemplating use of FOIA to investigate government, I warn would-be requesters of the possibility of retaliation.

If the First Amendment affords protection against retaliation, it's not an easily won theory.  First, there are practical problems.  Finding an attorney willing to bring a First Amendment claim against government is neither easy nor cheap.  Civil rights litigation and First Amendment law are both complicated.  Attorneys who practice in civil rights prefer the familiar patterns of discrimination and harassment based on race or gender.  In small legal communities such as Arkansas's, attorneys are loath to sue sugar-daddy government.  The thin possibility of winning attorney fees, even with a multiplier, upon a convincing legal victory is not enough to incentivize counsel.

Second, legal problems loom on the merits.  Usually problematic is the third element, causation.  The conduct here in McGee is unusual in its blatant motive.  Ordinarily, when local officials deny zoning variances, liquor licenses, or other privileges to applicants who happen to be accountability mavens, the causal connection cannot be shown to a constitutionally satisfactory certainty.

Element (1) is often a problem, too, because would-be requesters are also often would-be whistleblowers.  Under the muddled constitutional jurisprudence of the rights of public employees, the First Amendment does not preclude being fired for blowing the whistle on malfeasance in one's government workplace, much less the act of filing a state FOIA request to the same end.

There's a cruel irony of inefficiency in our First Amendment jurisprudence in that public employees are least protected when they speak of what they know best.  The jurisprudence rather favors being a team player in government.  Defectors, however righteous, must seek protection in statute, where there might be none.

When I worked on FOIA advocacy issues in Arkansas, before I moved to Rhode Island in 2011, I aided Reps. Dan Greenberg and Andrea Lea with 2009 H.B. 1052, which amended the state whistleblower protection statute with express protection for the use of FOIA.  Opponents of the bill argued that it was unnecessary, because existing law protected state employees in communicating concerns to elected officials.  My experience suggested that an elected official carelessly chosen was as likely to burn a whistleblower as to facilitate accountability.

More aggressive protection of FOIA requesters should be the norm throughout the United States.  Retaliation should not have to be as overtly wrongful as in McGee to trigger protection, whether statutory or constitutional.

The case is McGee v. Township of Conyngham, No. 20-3229 (3d Cir. Sept. 23, 2021).  U.S. Circuit Judge Kent A. Jordan wrote the opinion of a unanimous panel that also comprised Judges Marjorie Rendell and David J. Porter.  HT @ Prof. Rob Steinbuch and Prof. Eugene Volokh (Volokh Conspiracy).

Monday, November 18, 2019

It's not just whistleblower law; First Amendment public employee-speech doctrine is in disarray

You might have heard some wrangling in the news about whistleblowers.  They're all the rage, lately, even here and there on this blog.

A big problem for whistleblowers in the public sector is that the U.S. Supreme Court has clearly held that there is no First Amendment protection for whistleblowing in the United States.  So public employees who blow the whistle on public misfeasance or malfeasance have to be prepared to pay for their good intentions with their livelihoods.

Notably, that was the Court's holding in 2006, when a lawyer, Richard Ceballos, suffered retaliation in the office of L.A. District Attorney Gil Garcetti for having disclosed to criminal-defense counsel that a sheriff misrepresented facts in a search warrant affidavit, despite having been admonished to remain silent.  Remember that when Gil Garcetti runs for President.  Even when there is statutory protection, as in the case of that federal whistleblower whom everyone's been talking about, it is extremely difficult to police prohibitions on retaliation, thus the whistleblower's present penchant for anonymity. 

In a recent opinion column in The Hill, Independent Institute Policy Fellow Ronald L. Trowbridge, Ph.D., bemoaned this sorry state of constitutional whistleblower law since Garcetti.

Right.

Well, welcome to the table, Dr. Trowbridge.  Some of us transparency-and-accountability types in the public sector have been living, working, and biting our tongues under Garcetti for more than a dozen years. 

I don't concede that Garcetti applies to me; a footnote in the opinion left the question open as a matter of constitutional law for academics, who sit in a weird place, constitutionally speaking.  I've dared to offer my own constructive criticism here and there.  But often, I stay silent.  And by often, I mean a lot.  For example, you want to know what goes on at a public school inside the ABA accreditation process?  Well wouldn't you, then.  How nice for you.  Talk to the hand.

What we need is not another op-ed bemoaning Garcetti.  We need a way forward.

In 2016, Jerud Butler was reprimanded and demoted in his job at the San Miguel County, Colorado, Road and Bridge Department after he testified truthfully at a child custody hearing involving his sister-in-law and her ex-husband, another employee at the San Miguel County Road and Bridge Department.  His testimony, in a personal capacity, incidentally touched on the hours of operation of the department.  The Tenth Circuit rejected Butler's bid for First Amendment protection, finding Butler an employee of the government, like an employee anywhere else, subject to the whimsy of the employer.

Butler was not a whistleblower.  But Garcetti was not a watershed moment.  Rather, Garcetti was a symptom of an employee-speech doctrine in First Amendment law that has been badly broken since it was invented in Pickering v. Board of Education in 1968.

On behalf of "First Amendment Scholars," including me, Professors Lisa Hoppenjans and Gregory P. Magarian and their student team at the Washington University First Amendment Clinic at St. Louis University Law School filed an amicus brief in support of U.S. Supreme Court cert. in Butler (No. 18-1012).  Butler has got to be a mistaken outcome, even if we think that whistleblowing should be a statutory matter rather than a constitutional right, even under Pickering.

Like Dr. Trowbridge, I hope the Supreme Court at some point will realize the work that needs to be done to make sensible public-employee speech doctrine, whether fixing what we've got or starting from scratch.

Meanwhile I'll take anything that chips away at Garcetti.

Scholar-amici on the Wash. U. brief in Butler included: RonNell Andersen Jones, Associate Dean of Research & Teitelbaum Chair of Law, University of Utah S.J. Quinney College of Law; Cynthia Boyer, Associate Professor, Institut Maurice Hauriou (Université Toulouse Capitole)/Institut National
Universitaire Champollion; Alan K. Chen, Professor of Law, University of Denver Sturm College
of Law; Eric B. Easton, Professor of Law Emeritus, University of Baltimore School of Law; Craig B. Futterman, Clinical Professor of Law, University of Chicago Law School; Heidi Kitrosser, Robins Kaplan Professor of Law, University of Minnesota Law School; Lyrissa Lidsky, Dean and Judge C.A. Leedy Professor of Law, University of Missouri School of Law; Gregory P. Magarian, Thomas and Karole Green Professor of Law, Washington University in St. Louis School of Law; Helen Norton, Rothgerber Chair in Constitutional Law, University of Colorado School of Law; Richard J. Peltz-Steele, Chancellor Professor, University of Massachusetts Law School; Tamara R. Piety, Professor of
Law, University of Tulsa College of Law.

Amici aligned with First Amendment Scholars in Butler included the National Whistleblower Center, the Center for Constitutional Jurisprudence, the Duke Law School First Amendment Clinic, and the Government Accountability Project.

Tuesday, October 4, 2016

Mass. SJC refuses worker-union privilege in civil discovery



The Massachusetts Supreme Judicial Court refused to find a worker-union evidentiary privilege in a civil lawsuit by an educator against her school, affirming the Superior Court.

Nancy Chadwick, a Massachusetts teacher at Duxbury High School and former president of the Duxbury Teachers Association, alleged bullying and harassment by a direct supervisor, leading to her dismissal.  She sued for discrimination and retaliation in December 2014.  At issue in discovery were 92 emails sought by the defendant and alleged by the plaintiff to be protected by a union-union member privilege.

The SJC, per Justice Hines, refused to recognize the privilege under Massachusetts labor law or in common law.  The Court recognized that labor statutes at both the state and federal level, the latter per National Labor Relations Board precedent, can privilege communication by union members.  But looking to the apparent intent of the legislature in Mass. Gen. L. ch. 150E, the Court reasoned that the scope of that privilege is the protection of collective bargaining rights, not the furtherance of a civil lawsuit.

In the common law analysis, the Court admonished that its power to recognize privilege under Evidence Rule 501 to be “exercised sparingly.”  The Court observed that the Supreme Court of Alaska recognized a broad privilege under state statute in 2012.  But that is the minority position.  New Hampshire declined to find a privilege in grand jury proceedings in 2007.  And a California appellate court opined in 2003 that the authority to create such a privilege should rest with the legislature.

The SJC agreed that “the Legislature may be in a better position to decide whether to create a privilege and, if so, to weigh the considerations involved in defining its contours.”  McCormick on Evidence (3d ed. 1984) was quoted in a parenthetical: “It may be argued that legitimate claims to confidentiality are more equitably received by a branch of government not preeminently concerned with the factual results obtained in litigation, and that the legislatures provide an appropriate forum for the balancing of the competing social values necessary to sound decisions concerning privilege.”  Moreover, the SJC found “speculative” any harm that might result to the plaintiff for the court’s refusal to recognize the privilege.

In a footnote, the SJC clarified that its decision did not diminish inherent judicial powers to award protective order, as under civil procedure rule 26(c).

The decision is significant in part because Massachusetts is regarded as a state (or commonwealth) friendly to organized labor.  The SJC decision asserts a conservative view of separated powers such as to interpret statute and to evolve the common law under rule 501.  The latter especially has implications for other potential common law privileges, such as the journalist’s privilege.  Also, because the decision arises in the context of public employment, the lack of union privilege may have implications for construction of sunshine laws that incorporate common law and “other law” confidentiality by reference.

The case is Chadwick v. Duxbury Public Schools, no. SJC-12054 (Oct. 4, 2016) (PDF).