Police Officers Can Blow the Whistle on Local Government

By Charles F. Thompson Aug 10, 2016
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​A police officer claimed he was fired for blowing the whistle on town officials defrauding the Federal Emergency Management Agency in the aftermath of hurricanes Gustav and Katrina. 

A town police officer has a constitutional right to blow the whistle on criminal wrongdoing by government officials in his town, according to the 5th U.S. Circuit Court of Appeals.

The case began when police officer Tom Howell of Ball, La., learned that certain town officials might be defrauding the Federal Emergency Management Agency (FEMA) in the aftermath of hurricanes Gustav and Katrina. The scheme involved falsely overstating the number of hours town employees spent on recovery efforts and overstating the use of town vehicles and equipment. 

Howell called the FBI, reported some of what he had heard and volunteered to become a confidential informant. He subsequently secretly recorded incriminating conversations with Ball Mayor Roy Hebron and other town employees.

Ultimately, Hebron and four other town employees, including the police chief, were indicted for various crimes related to the fraud. Daniel Caldwell became the new chief of police. Howell alleged that Caldwell began a campaign of harassment and retaliation against Howell. For example, Howell contended that Caldwell would frequently ask if he was wearing a wire and on one occasion demanded that Howell remove his shirt to check for recording devices. Howell also contended that Caldwell falsely accused Howell of stealing a USB flash drive from a co-worker. After learning this, Howell went to Caldwell's home to confront him about the investigation. A heated argument ensued, and Caldwell fired Howell. 

Howell then appealed the decision to the board of aldermen. The board conducted a hearing during which Howell alleged that the firing was retaliation for his participation in the FBI investigation. Nevertheless, the board voted unanimously to affirm the decision. 

Howell brought a number of claims, but the one considered by the court of appeals was his free-speech claim under the First Amendment. Howell asserted that because he was terminated for speaking out against the town's fraud, his free-speech rights were being violated. 

Federal law does recognize a free-speech right to speak out on matters of public concern. However, that right does not cover speaking about matters within the employee's public duties. The trial court ruled that reporting the town's fraud was within Howell's public duties as a police officer, and therefore he could not assert a free-speech claim. 

The court of appeals disagreed and held that Howell's general duty to report criminal activity did not prevent him from bringing this claim because Howell was reporting on a crime being committed by the town and town officials. In other words, he was reporting a town crime to an appropriate outside agency.

Because the court felt this distinction was not previously clear in the law, it granted immunity to the individual defendants, including Caldwell. (Individual defendants accused of violating the constitutional rights of others are entitled to immunity in the event the right was not clearly established.)

Howell v. Town of Ball, 5th Cir., No. 15-30552 (July 1, 2016). 

Professional Pointer: Nongovernmental employers cannot generally be sued by employees for deprivation of constitutional rights. However, many states have tort remedies for discharge in violation of "public policy." Some states have looked to constitutional provisions as expressions of public policy. Therefore, nongovernmental employers should be circumspect in discharging employees for their speech. 

Charles F. Thompson is an attorney with the Worklaw® Network member firm of Malone, Thompson, Summers & Ott in Columbia, S.C.

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