Whistle-Blower Protection Is Limited

First Amendment protections are restricted when an employee’s job function is to blow the whistle

By Scott M. Wich Sep 14, 2016
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Whistle-blowers are protected from retaliatory employment actions under a variety of laws. What protections exist when the whistle-blower is responsible for reporting potential legal or ethical violations as part of his or her job duties? None, under the First Amendment, if the individual is blowing the whistle as a government employee. Protections may exist, however, if the whistle-blower is acting as a private citizen outside the scope of his or her employment. The 11th U.S. Circuit Court of Appeals addressed the issue in the context of First Amendment rights for government employees, determining that further investigation of the facts was warranted.

Joe Carollo was appointed city manager for the City of Doral, Fla., in early 2013. His job duties included, among other things, ensuring that all acts of the city council were faithfully executed. During his time as city manager, Carollo reported various issues he believed to be in violation of state and federal law. The reports included allegations of campaign finance law violations by Doral's mayor, Luigi Boria, and a councilwoman, Sandra Ruiz, as well as allegations of corruption by Boria and financial disclosure law violations by Boria and Doral's vice-mayor, Christine Fraga.

In April 2014, the Doral City Council voted to terminate Carollo, with the three individuals about whom he complained—Boria, Ruiz and Fraga—casting the only votes in favor of ending his employment. Carollo sued the City of Doral under Florida's whistle-blower law, the City of Doral charter and the First Amendment. He also brought the second and third claims against the individuals who voted to terminate his employment.

Under his First Amendment claim, Carollo asserted that he was retaliated against for exercising his constitutional right to free speech by making public complaints of alleged government malfeasance. In defense of the claim, the individual defendants maintained that Carollo made such complaints as a function of his duties as the city manager. Since he was acting as an employee and not as a private citizen, the defendants asserted, Carollo did not enjoy broad First Amendment protections.

Affirming the denial of the defendants' motion to dismiss based on this argument, the appeals court noted that speech by a government employee can be more restricted than speech by a private citizen. The court reflected that limiting the speech by a government employee, which "owes its existence to a public employee's professional responsibilities, … does not infringe on liberties the employee might have enjoyed as a private citizen." The court also noted that speech that falls within the scope of an employee's normal duties does not enjoy the same First Amendment protections as that of an ordinary citizen.

Since the determination of whether Carollo was acting as an employee or a private citizen when voicing his complaints hinged on the underlying facts, the appeals court ordered that the lower court direct the parties to engage in discovery.

Carollo v. Boria, 11th Cir., No. 15-11512 (Aug. 17, 2016).

Professional Pointer: In both the public and private sectors, whistle-blower protections often exclude employees who, as part of their duties, are expected to voice complaints. Nevertheless, careful attention should be paid when disciplining employees with compliance responsibilities, such as ethics officers and in-house legal counsel.

Scott M. Wich is an attorney with the law firm of Clifton Budd & DeMaria LLP in New York City.

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