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Thursday, April 14, 2011

Protected speech vs. whistle blowing

Protected speech vs. whistle blowing
Ringle v Onondaga County, 267 AD2d 1088

The Ringle decision by the Appellate Division, Fourth Department, addresses a number of important issues concerning the limits, if any, on the right of a public employee to publicly “to blow the whistle” on his or her employer.

The court’s conclusion: a public employee’s right to “blow the whistle” on his or her employer of his or her superiors is not absolute.

David Ringle and William R. Sawyer sued Onondaga County, contending that the county had retaliated against them for “whistle blowing” in violation of (1) their Constitutional right to free speech and (2) Section 75-b of the Civil Service Law.

Both Ringle and Sawyer alleged that they were unlawfully dismissed or constructively discharged from their positions as a result of their communicating with other government agencies and the media concerning alleged inappropriate activities in the Onondaga County Laboratory (OCL) and Medical Examiner’s Office (MEO) and inappropriate conduct by their supervisor, the Onondaga County Medical Examiner.

Constitutionally protected rights

The Appellate Division first considered the Constitutional free speech and civil rights claims under 42 US 1983 advanced by Ringle and Sawyer.

After noting that “it is well established that a governmental entity may not discharge or retaliate against an employee based on that employee’s exercise of the right of free speech,” the Appellate Division pointed out that:

1. The “Pickering test” [Pickering v Board of Education, 391 US 563] is used to determine if a public employee has been unlawfully dismissed from his or her employment for “engaging in speech.” This test balances the interests of the employee, as a citizen, in commenting upon matters of public concern and the interest of the State, as an employer, in providing efficient service to the public.

2. Consideration must be given to whether the speech to which the employer objects “impairs discipline by superiors or harmony among co-workers, has a detrimental impact on close working relationships for which personal loyalty and confidence are necessary, or impedes the performance of the speaker’s duties or interferes with the regular operation of the enterprise”

3. The greater a “confidential relationship” and the “policymaking function” of the speaker, the greater the State’s interest in terminating the employee for expressions against the employer’s interests and the lesser the employee’s First Amendment rights.

According to the decision, Ringle’s and Sawyer’s comments concerning “mismanagement by the Medical Examiner and inappropriate activities in the OCL and MEO may fairly be categorized as a matter of public concern.”

The Appellate Division, however, found that both Ringle and Sawyer held positions requiring confidentiality and which involved policymaking and public contact, elements that the court determined to be mitigating factors insofar as their free speech rights were concerned.

The court concluded that given their job responsibilities, “[c]ommon sense tells us that the expressive activities of [such] highly placed supervisory, confidential, policymaking, or advisory employee[s] will be more disruptive to the operation of the workplace than similar activity by a low level employee with little authority or discretion.”

The Appellate Division held that the record established that the comments made by Ringle and Sawyer were disruptive to the operation of the workplace, created disharmony among co-workers, interfered with their working relationships with their supervisor, and affected the performance of their duties.

Given these circumstances, the court said that it concluded that terminating Ringle and Sawyer, even in retaliation for their comments to the media and other government agencies concerning the operation of the OCL and MEO, did not violate their First Amendment rights or their civil rights under 42 USC 1983.

Civil Service Law Section 75-b whistle blowing claims

In determining Ringle’s and Sawyer’s rights under Section 75-b of the Civil Service Law, different considerations were found to be controlling.

First, the Appellate Division said that lawsuits under Section 75-b sought to vindicate personal rights in contrast to efforts to vindicate a public interest.

Section 75-b prohibits a public employer from retaliating against a public employee who “blows the whistle.” Subdivision 2(a) states that a public employer shall not dismiss or take other disciplinary or other adverse personnel action involving an individual’s public employment who discloses information to a governmental body involving a threat to public health or constitutes improper governmental action.

Alleged violations of Section 75-b are typically challenged by the individual bringing an Article 78 action [Article 78, Civil Practice Law and Rules.]. In filing such a petition, said Appellate Division, the individual seeks to vindicate a private rather than a public right. What private right? The right not to be dismissed or otherwise subjected to reprisals because of his or her disclosures to other governmental agencies of the media.

This conclusion meant that both Ringle and Sawyer had fallen into a procedural trap.

The Appellate Division said that because the “Civil Service Law Section 75-b causes of action they brought sought to vindicate only the individual interests of Ringle and Sawyer, ... they were properly dismissed by the lower court because Ringle and Sawyer failed to file a notice of claim as required by Section 50-a of the General Municipal Law Section and Section 52 of the County Law.*

In addition, the court pointed out that Section 75-b does not serve as a shield against disciplinary action being taken against an employee where there is a “separate and independent basis” for discipline the individual.

Finally, the Appellate Division observed that “by commencing actions pursuant to Civil Service Law Section 75-b, Ringle and Sawyer are barred from asserting any other State law cause of action related to the alleged retaliatory discharges.”

* This ruling implies that where an individual sues a school district or BOCES claiming he or she was dismissed or subjected to punitive action in violation of Section 75-b, he or she must file a notice of claim in accordance with Section 3813(1) of the Education Law.

Handbooks focusing on State and Municipal Public Personnel Law continue to be available for purchase via the links provided below:

The Discipline Book at http://thedisciplinebook.blogspot.com/

A Reasonable Penalty Under The Circumstances at http://nypplarchives.blogspot.com

The Disability Benefits E-book: at http://section207.blogspot.com/

Layoff, Preferred Lists at http://nylayoff.blogspot.com/

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