This morning, the Supreme Court declined to hear two cases that raise a conflict among the circuits about whether the First Amendment protects government employees who refuse to make false statements.  The Court denied petitions for certiorari by David Bowie, a former official of the District of Columbia (DC) Office of Inspector General (OIG), and by Matthew Byrne, Police Chief of Middletown, New York.  Bowie had lost his First Amendment case in the District of Columbia Circuit.  Meanwhile, the Second Circuit held that Byrne had to answer Jason Jackler’s claim that he suffered retaliation for refusing to make false statements in an excessive force investigation.  The Supreme Court’s decision to avoid the issue means that public employees in New York, Vermont and Connecticut will have protection when they refuse to make false statements, but those in DC will not.  The rights of public employees in other states remains undecided.

The outcome for David Bowie is particularly troubling.  According to the Second Circuit, Bowie was the Assistant Inspector General of the Investigations Division at the OIG from November 1997 until his termination in August 2002. DC officials say they fired Bowie for performance problems. But Bowie says his termination was to punish him for supporting Emanuel Johnson, a subordinate whom the OIG fired over Bowie’s dissent. Bowie and Johnson had worked together in a class action race discrimination lawsuit against the Federal Bureau of Investigation (FBI). Inspector General Charles C. Maddox, told Bowie that FBI Assistant Director Jimmy C. Carter had threatened not to "provide any assistance or cooperation with the [OIG] in investigative matters" if Johnson was involved. Maddox ordered Bowie to fire Johnson, and Bowie complied in 2000. After Johnson filed a race discrimination complaint, DC’s attorney and the OIG’s attorney ordered Bowie to sign an affidavit about Johnson’s performance problems.  Bowie refused, citing "misstatements of fact" and "language that would convey impressions that [he] would not agree with." The OIG attorney invited Bowie to prepare his own affidavit, which Bowie did.  That affidavit cited one performance issue, called Johnson an otherwise "model investigator," and recounted how Bowie wanted to keep Johnson employed. The OIG decided not to use Bowie’s affidavit in defense of Johnson’s claim. Thereafter, Bowie’s performance appraisal’s dropped, he was removed from a high-profile investigation, and a subordinate was promoted to a superior position. Management criticized Bowie for "not stepping up to the plate" and for overprotectiveness toward his subordinates. Eventually, Maddox fired Bowie in 2002.

Bowie sued Maddox for retaliation under the Civil Rights Act, and for conspiracy and violation of the First Amendment.  The judge allowed the Civil Rights Act claim to go to trial and the jury sided with management.  Bowie appealed the dismissal of his conspiracy and First Amendment claim. In the appeal, Bowie did not have a lawyer.  The DC Circuit appointed a lawyer for him. Last year, the DC Circuit dismissed Bowie’s appeal by citing Garcetti v. Ceballos, 547 U.S. 410, 421, 126 S.Ct. 1951, 164 L.Ed.2d 689 (2006): "when public employees make statements pursuant to their official duties, the employees are not speaking as citizens for First Amendment purposes, and the Constitution does not insulate their communications from employer discipline." The DC Circuit noted that Bowie never tried to submit his affidavit directly to the EEOC or to Johnson.  Bowie communicated his concerns about the draft affidavit only to the attorneys for his employer.  All these communications were part of his duties, and conducted through official channels. Johnson also lost his retaliation claim after a bench trial. See Johnson v. Maddox, 270 F.Supp.2d 38, 43 (D.D.C.2003), aff’d 117 Fed.Appx. 769 (D.C.Cir.2004).

On January 5, 2006, probationary officer Jason assisted police Sergeant Gregory W. Metakes in the arrest and transportation of Zachary T. Jones in Middletown, New York. When Jackler arrived, Jones was handcuffed with his hands behind his back. Jackler opened the rear driver-side door of his patrol car, and Metakes placed Jones in the back seat. As Metakes closed the door, Jones yelled an insult at Metakes. Metakes immediately reopened the door and struck the still-handcuffed Jones in the face. At the station, police supervisors helped Jones file an excessive force complaint against Metakes. Jackler filed a report confirming that Metakes had reopened the car door to punch Jones after the insult. Police managers, acting on orders of Police Chief Matthew Byrne, met with Jackler to pressure him to withdraw his report and submit a new one that supported Metakes. Jackler refused. Byrne then recommended to the Board of Police Commissioners that it terminate Jackler’s probationary employment.  For the first time in the City’s history, the Board did just that.  At the same time, the Board authorized hiring four new officers.

A district court reluctantly dismissed Jackler’s retaliation claim based on Garcetti and a Second Circuit decision called Weintraub v. Board of Education, 593 F.3d 196 (2d Cir.), cert. denied, 131 S. Ct. 444 (2010). On appeal, the Second Circuit considered that

"Exposure of official misconduct, especially within the police department, is generally of great consequence to the public." Branton v. City of Dallas, 272 F.3d 730, 740 (5th Cir. 2001); see Garcetti, 547 U.S. at 425 ("governmental … misconduct is a matter of considerable significance"). The Fourth Amendment to the United States Constitution, which applies to the States through the Fourteenth Amendment, prohibits the use of excessive force by policemen in the course of an arrest, see, e.g., Graham v. Connor, 490 U.S. 386, 394 (1989), and it is a federal offense to deprive a person of his or her civil rights under color of law, see 18 U.S.C. § 242. Deliberate indifference to claims of such civil rights violations—tantamount to a custom or policy sufficient to support municipal liability under § 1983—may be inferred from a municipality’s lack of appropriate response to repeated complaints of such violations.

The Court went on to note how it would have been a crime for Jackler to make a false statement that Metakes was innocent, and how such laws apply equally to government employees and civilians alike. Just as the managers could not force Jones to withdraw his complaint, or make a false statement, they also could not force Jackler to do so either. Jackler’s status as a public employee had nothing to do with his duty to refrain from filing a false statement. The Court explained:

The government as an employer has broad discretion to manage its operations. But that discretion does not include authority to coerce or intimidate its employees to engage in criminal conduct by filing reports that are false in order to conceal wrongdoing by another employee or to conceal eyewitness corroboration of civilian complaints of such wrongdoing.

After the Second Circuit issued its decision for Jackler, the DC Circuit issued its decision on Bowie’s petition for rehearing. The DC Circuit disagreed with the Second Circuit and said that the plaintiff’s status as a public employee is more important to the Garcetti analysis than the civilian analog requiring that statements in official investigations be truthful.

While is outcome is a relief for Jason Jackler, the outcome is particularly disturbing for those of us who care about honest government operations here in DC. The federal appeals court is literally saying that it is more important that managers can control their employees than it is that employees can be honest in official investigations.  This goes beyond what is required by the Supreme Court in Garcetti which is focused on the government’s control of what its agents say on behalf of the government.

Congratulations to Chester, New York, attorney Stephen Bergstein who represented Jason Jackler.  Bergstein has agreed to speak with me about this case for tomorrow’s episode of Honesty Without Fear.  Listen in at 1:00 p.m., eastern time on Tuesday, February 28, 2012.

The cases are Bowie v. Maddox, 642 F.3d 1122, 1134 (D.C. Cir. 2011), cert. denied, Sup. Ct. Case No. 11-670, and Jackler v. Byrne, 658 F.3d 225 (2d Cir. 2011), cert. denied, Sup. Ct. Case No. 11-517.