[House Hearing, 109 Congress]
[From the U.S. Government Publishing Office]




 
    WHAT PRICE FREE SPEECH? WHISTLEBLOWERS AND THE CEBALLOS DECISION

=======================================================================

                                HEARING

                               before the

                              COMMITTEE ON
                           GOVERNMENT REFORM

                        HOUSE OF REPRESENTATIVES

                       ONE HUNDRED NINTH CONGRESS

                             SECOND SESSION

                               __________

                             JUNE 29, 2006

                               __________

                           Serial No. 109-161

                               __________

       Printed for the use of the Committee on Government Reform


  Available via the World Wide Web: http://www.gpoaccess.gov/congress/
                               index.html
                      http://www.house.gov/reform

                                 ______

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                     COMMITTEE ON GOVERNMENT REFORM

                     TOM DAVIS, Virginia, Chairman
CHRISTOPHER SHAYS, Connecticut       HENRY A. WAXMAN, California
DAN BURTON, Indiana                  TOM LANTOS, California
ILEANA ROS-LEHTINEN, Florida         MAJOR R. OWENS, New York
JOHN M. McHUGH, New York             EDOLPHUS TOWNS, New York
JOHN L. MICA, Florida                PAUL E. KANJORSKI, Pennsylvania
GIL GUTKNECHT, Minnesota             CAROLYN B. MALONEY, New York
MARK E. SOUDER, Indiana              ELIJAH E. CUMMINGS, Maryland
STEVEN C. LaTOURETTE, Ohio           DENNIS J. KUCINICH, Ohio
TODD RUSSELL PLATTS, Pennsylvania    DANNY K. DAVIS, Illinois
CHRIS CANNON, Utah                   WM. LACY CLAY, Missouri
JOHN J. DUNCAN, Jr., Tennessee       DIANE E. WATSON, California
CANDICE S. MILLER, Michigan          STEPHEN F. LYNCH, Massachusetts
MICHAEL R. TURNER, Ohio              CHRIS VAN HOLLEN, Maryland
DARRELL E. ISSA, California          LINDA T. SANCHEZ, California
JON C. PORTER, Nevada                C.A. DUTCH RUPPERSBERGER, Maryland
KENNY MARCHANT, Texas                BRIAN HIGGINS, New York
LYNN A. WESTMORELAND, Georgia        ELEANOR HOLMES NORTON, District of 
PATRICK T. McHENRY, North Carolina       Columbia
CHARLES W. DENT, Pennsylvania                    ------
VIRGINIA FOXX, North Carolina        BERNARD SANDERS, Vermont 
JEAN SCHMIDT, Ohio                       (Independent)
BRIAN P. BILBRAY, California

                      David Marin, Staff Director
                Lawrence Halloran, Deputy Staff Director
                       Teresa Austin, Chief Clerk
          Phil Barnett, Minority Chief of Staff/Chief Counsel


                            C O N T E N T S

                              ----------                              
                                                                   Page
Hearing held on June 29, 2006....................................     1
Statement of:
    Ceballos, Richard, deputy district attorney, Los Angeles 
      County District Attorney's Office; William Bransford, 
      general counsel, Senior Executives Association; Mimi Dash, 
      council president, Fairfax Education Association, retired; 
      Lisa Soronen, staff attorney, National School Boards 
      Association; Barbara Atkin, deputy general counsel, 
      National Treasury Employees Union; Richard Bergstrom, 
      counsel, Morrison & Foerster; and Joseph Goldberg, American 
      Federation of Government Employees.........................    71
        Atkin, Barbara...........................................   102
        Bergstrom, Richard.......................................   115
        Bransford, William.......................................    76
        Ceballos, Richard........................................    71
        Dash, Mimi...............................................    83
        Goldberg, Joseph.........................................   207
        Soronen, Lisa............................................    87
    Kohn, Stephen M., Chair, National Whistleblowers Center; and 
      Roger Pilon, vice president for legal affairs, CATO 
      Institute..................................................    26
        Kohn, Stephen M..........................................    26
        Pilon, Roger.............................................    53
Letters, statements, etc., submitted for the record by:
    Atkin, Barbara, deputy general counsel, National Treasury 
      Employees Union, prepared statement of.....................   104
    Bergstrom, Richard, counsel, Morrison & Foerster, prepared 
      statement of...............................................   117
    Bransford, William, general counsel, Senior Executives 
      Association, prepared statement of.........................    78
    Ceballos, Richard, deputy district attorney, Los Angeles 
      County District Attorney's Office, prepared statement of...    73
    Cummings, Hon. Elijah E., a Representative in Congress from 
      the State of Maryland, prepared statement of...............    22
    Dash, Mimi, council president, Fairfax Education Association, 
      retired, prepared statement of.............................    85
    Davis, Chairman Tom, a Representative in Congress from the 
      State of Virginia, prepared statement of...................     6
    Goldberg, Joseph, American Federation of Government 
      Employees, prepared statement of...........................   208
    Kohn, Stephen M., Chair, National Whistleblowers Center, 
      prepared statement of......................................    28
    Pilon, Roger, vice president for legal affairs, CATO 
      Institute, prepared statement of...........................    55
    Porter, Hon. Jon C., a Representative in Congress from the 
      State of Nevada, prepared statement of.....................   221
    Soronen, Lisa staff attorney, National School Boards 
      Association, prepared statement of.........................    90
    Waxman, Hon. Henry A., a Representative in Congress from the 
      State of California, prepared statement of.................    13


    WHAT PRICE FREE SPEECH? WHISTLEBLOWERS AND THE CEBALLOS DECISION

                              ----------                              


                        THURSDAY, JUNE 29, 2006

                          House of Representatives,
                            Committee on Government Reform,
                                                    Washington, DC.
    The committee met, pursuant to notice, at 11:51 a.m., in 
room 2154, Rayburn House Office Building, Hon. Tom Davis 
(chairman of the committee) presiding.
    Present: Representatives Tom Davis, Shays, Platts, Issa, 
Dent, Schmidt, Waxman, Maloney, Cummings, Kucinich, Clay, 
Watson, Van Hollen, Ruppersberger, and Norton.
    Staff present: Keith Ausbrook, chief counsel; Jim Moore and 
A. Brooke Bennett, counsels; Rob White, communications 
director; Andrea LeBlanc, deputy director of communications; 
Teresa Austin, chief clerk; Sarah D'Orsie, deputy clerk; Phil 
Barnett, minority staff director/chief counsel; Kristin 
Amerling, minority general counsel; Michelle Ash, minority 
chief legislative counsel; Margaret Daum and Kim Trinca, 
minority counsels; David Rapallo, minority chief investigative 
counsel; Shaun Garrison and Mark Stephenson, minority 
professional staff members; Earley Green, minority chief clerk; 
and Jean Gosa, minority assistant clerk.
    Chairman Tom Davis. The committee will come to order.
    Before we begin the hearing, I want to ask Mr. Shays and 
Mr. Waxman to join me in putting an important matter on the 
record.
    Mr. Shays.
    Mr. Shays. Thank you, Mr. Chairman. Because this is a 
hearing about whistleblower rights, I want to put on the record 
that Mr. Waxman and I have requested that the chairman issue a 
subpoena to the Department of Defense for information about Abu 
Ghraib Prison and allegations of retaliation against Specialist 
Samuel Provance. Specialist Provance was stationed at the 
prison in Iraq, and he testified before the National Security 
Subcommittee about his efforts to report what he had heard 
about abuses there. I want to thank you, Mr. Chairman, for 
agreeing to our subpoena request.
    On March 7th, Mr. Waxman and I sent a letter to DOD 
regarding this matter to Secretary Rumsfeld and Director Goss, 
and another separate, different, letter just to Secretary 
Rumsfeld. I ask unanimous consent that both letters be made 
part of this hearing record.
    Chairman Tom Davis. Without objection.
    Mr. Shays. We asked for a response by April 21st. Staff has 
repeatedly called, but to date we have no meaningful engagement 
from the Department on the subcommittee's request.
    Recently we learned the House Armed Services Committee has 
one of the unredacted documents requested, and we appreciate 
their help and look forward to their support going forward. But 
it is critical that our oversight inquiry is being taken 
seriously by executive branch departments, and that we get 
timely access to the information we need to do our job.
    So again, I thank you. I appreciate, Mr. Chairman, your 
willingness to proceed in this effort and help us with our 
oversight. And, obviously, I thank Mr. Waxman for his patience 
in a request that we both think is meritorious and deserves to 
be responded to.
    Chairman Tom Davis. Thank you.
    Mr. Waxman.
    Mr. Waxman. Mr. Chairman, I would like to thank you and 
Chairman Shays for agreeing to my request to subpoena Defense 
Secretary Rumsfeld. I would also like to make clear for the 
record why this subpoena is now necessary.
    I've been working on Sergeant Provance's case since last 
fall. He first came to my attention as a result of press 
reports that the U.S. Military had allegedly used the children 
of detainees at Abu Ghraib in order to break the detainees 
during their interrogation. But rather than investigate 
Sergeant Provance's claim, the military ignored him, told him 
he could be prosecuted for not coming forward sooner, and then 
demoted him and pulled his security clearance. So last 
December, when the National Security Subcommittee was 
considering holding a hearing on national security 
whistleblowers, I requested that Sergeant Provance be invited 
to testify. That hearing happened on February 14th of this 
year, and Sergeant Provance was able to fly back from Germany 
to testify.
    Sergeant Provance's testimony was gripping and disturbing. 
I would like to make an excerpt of the transcript of that 
hearing part of today's hearing.
    Chairman Tom Davis. Without objection so ordered.
    Mr. Waxman. After hearing these serious allegations, I 
requested that the subcommittee send two letters to the Defense 
Department requesting documents. The first letter sought 
information about Sergeant Provance's subsequent claims of 
abuse at Abu Ghraib, and the second about any retaliation taken 
against him. Chairman Shays agreed, and on March 7th we sent 
those letters with a deadline of April 21st. That deadline came 
and went, and since that date the Defense Department's 
responses have been absolutely deficient. The Department's 
response on the abuses of Abu Ghraib have been simply 
nonexistent. We asked for a host of documents ranging from 
information about children at Abu Ghraib to drafts and 
interview notes relating to the Fay/Jones report on detainee 
abuse. We also asked for an unredacted copy of Sergeant 
Provance's February testimony to our committee; it turned out 
the Pentagon redacted parts of it before he testified here.
    To this date and after more than 3 months, there has been 
no substantive response from the Department. No documents have 
been provided. To their credit, the majority staff followed up 
nearly a dozen times with telephone calls and e-mails, without 
success.
    On the second request for documents relating to retaliation 
against Sergeant Provance, the Department took an untenable and 
ridiculously narrow approach to what it did provide. We asked 
for a wide range of documents relating to disciplinary actions 
taken against Sergeant Provance. We wanted to know why 
commanders issued a written gag order only to Sergeant 
Provance; how they became aware of his contacts with the media; 
and the manner in which they decided to punish him for his 
actions. The request included all communications, e-mails, 
papers, and notes from all Department employees.
    Last Tuesday, as soon as they found out we were having 
today's hearing, Department officials finally responded. They 
produced a total of nine documents, three of which we already 
had, and three of which were identical except for the 
signatures. Obviously, the response was completely inadequate.
    So, again, I thank Chairman Davis and Chairman Shays for 
disagreeing to this request. We worked together in a bipartisan 
manner to refine the language of this subpoena, and as a 
result, I hope the Pentagon will take a careful look at their 
actions, go back and review the documents in an honest way and 
allow us to exercise our constitutional oversight 
responsibilities effectively.
    Thank you, Mr. Chairman.
    Chairman Tom Davis. Thank you, Mr. Waxman.
    You know, when the committee requests information from the 
executive branch departments and agencies, we try to be 
reasonable; we try to accommodate the legitimate concerns about 
the volume and sensitivity of what we're asking for. But if the 
Department won't even return a call after 3 months and begin 
that dialog, we really have no choice but to subpoena the 
material and compel their attention to our request.
    In this case, the Armed Services Committee has offered the 
subcommittee access to some of the material in question, and we 
appreciate their help. But the Pentagon has documents we need 
to fully understand: how the soldier was treated after he tried 
to report; and what he learned about prison abuse in Iraq.
    I thank the gentlemen for their work on these whistleblower 
issues. We're going to continue to work with them, and we're 
going to get this information we need from the Department of 
Defense.
    I want to welcome everybody again to today's hearing on the 
recent Supreme Court decision in the case Garcetti v. Ceballos. 
In one sense, this case is familiar. Mr. Ceballos prepared a 
memorandum about activities within the Los Angeles Police 
Department and the District Attorney's Office, with which his 
supervisors disagreed, and he subsequently experienced 
perceived adverse employment actions. But in this case, rather 
than bringing his lawsuit under statutory whistleblower 
protections, Mr. Ceballos claimed that his statements should be 
constitutionally protected by the first amendment.
    The Supreme Court disagreed, but only just disagreed in a 
5-4 decision written by Justice Kennedy. The court concluded 
that Mr. Ceballos' statements were not entitled to first 
amendment protections because they were made pursuant to his 
official employment duties. This decision was met with some 
fairly extreme headlines. For example, a New York Times 
headline read, ``Some Whistleblowers Lose Free Speech 
Protections''. The Washington Post reported, ``High Court's 
Free Speech Ruling Favors Government: Public Workers on Duty 
Not Protected.'' and the Chicago Tribune reported, ``High Court 
Curbs Free Speech Rights of Public Workers on the Job.''
    Maybe they have a point, but anytime the papers start 
announcing wholesale rollbacks of whistleblowers' protections, 
I get concerned, and so should each member of this committee. 
And that is why we are here today: to understand what this case 
decided, the grounds on which it was decided, and what it means 
for the rights and interests of all whistleblowers, Federal and 
State.
    In my two terms as committee chairman, we've worked hard to 
improve whistleblowers' rights. It hasn't been an easy process, 
but we've made some real progress. For instance, Mr. Platts' 
bill, H.R. 1317, which we passed out of this committee, grants 
Federal whistleblowers an alternative course of action in the 
Federal district courts nationwide if their claims of 
retaliation are not adjudicated quickly. This is a truly 
landmark advancement for whistleblowers.
    This committee also adopted important new protections for 
those exposing wrongdoing in classified programs, national 
security whistleblowers. As part of our Bipartisan executive 
branch Reform Act, H.R. 5112, we gave those entrusted with the 
Nation's secrets meaningful recourse against subtle forms of 
retaliation practiced in their closed world, like security 
clearance revocation.
    Whistleblowers often play an important role in exposing 
government misconduct. Protecting honest, hardworking Federal 
employees is important to me, and that's why the headlines I 
mention are troubling.
    From a practical standpoint, the decision and the reporting 
that followed the decision may give whistleblowers the 
impression that they're better off just taking their problems 
to the press. Some people might be OK with that, but the real 
goal should be the creation of a workplace environment where 
employees feel free to discuss waste, fraud and abuse with 
employers, and employers feel more comfortable fixing the 
problem than covering it up. We need better government, not 
more headlines.
    We hope to learn much from today's hearing. For example, 
why did Mr. Ceballos choose to raise his claim under the first 
amendment? As a State employee in California, what other 
avenues were available, and why were they seemingly less 
attractive? How common is the workplace situation that he 
faced, and does this arise in other areas of public employment, 
such as education? And how similar are these experiences to 
those of Federal employees?
    But more than anything, it's important for whistleblowers 
to know they are still protected from retaliation when they 
blow the whistle and bring public attention to waste, fraud, 
and abuse.
    It's also important that employers have clear guidelines 
delineating right and wrong behavior. We will examine whether 
the Ceballos decision accomplished either goal.
    In the context of government employees, disagreements about 
how to do a certain job can have profound public consequences. 
I'm reminded of Benjamin Franklin saying that for want of a 
nail, a shoe was lost; for the want of a shoe, a horse was 
lost; for the want of a horse, the rider was lost--and so on, 
slain by the enemy.
    The inability of government workers to express their 
concerns about the smallest of issues involving their jobs--the 
nails--can lead to the greatest of harms: defeat by an enemy. 
We need to give appropriate protection to those workers while 
allowing managers the freedom to manage.
    I will now recognize the distinguished ranking member, Mr. 
Waxman.
    [The prepared statement of Chairman Tom Davis follows:]

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    Mr. Waxman. Thank you, Mr. Chairman.
    The recent Supreme Court in Garcetti v. Ceballos raises 
serious issues regarding the first amendment free speech rights 
of government employees and how statutory whistleblower 
protections are affected by this decision.
    Mr. Ceballos was an attorney for the L.A. County District 
Attorney's Office. In the course of his duties, he became aware 
of significant misstatements in an affidavit used to obtain a 
search warrant. He examined the affidavit, conducted an 
investigation, and wrote a memorandum to his superiors 
concluding that the affidavit contained serious 
misrepresentations, and recommending dismissal of the case. Mr. 
Ceballos' supervisors decided to proceed with the case, despite 
his findings.
    In the aftermath of these events, Mr. Ceballos claimed he 
was subjected to a series of retaliatory employee actions, 
including reassignment, transfer, and denial of promotion. 
After pursuing other legal remedies, Mr. Ceballos sued his 
employer for violating his first amendment rights by 
retaliating against him based on his memorandum.
    In its decision, the Supreme Court held that Mr. Ceballos' 
first amendment rights had not been violated. It found that the 
first amendment protects the speech of a government employee 
when that employee is expressing an opinion as a citizen on a 
matter of public concern, but because Mr. Ceballos' memorandum 
was written pursuant to his duties as a prosecutor, the court 
found that he was speaking as an employee, not a citizen. He 
was, therefore, not protected from retaliation because the 
first amendment does not prohibit managerial discipline based 
on an employee's work product.
    Leaving aside what Justice Stevens in his dissent called a 
perverse rule, namely, one that gives employees an incentive to 
voice their concerns publicly before talking to their 
superiors, the court noted that government employees are 
protected and would continue to be protected by Federal and 
State whistleblower laws.
    Unfortunately, I cannot agree with the court. The Merit 
Systems Protection Board and the Federal circuit court have 
issued confusing opinions on whether disclosures made in the 
normal course of an employee's official duties are protected. 
Government whistleblowers should be protected, and their 
disclosure of waste, fraud, and abuse should be encouraged. But 
under this administration and recent precedents, the current 
statutory protections for Federal whistleblowers have developed 
gaping loopholes. That's why new Federal legislation is so 
urgently needed.
    To its credit, this committee has acted twice, this 
Congress, to report new whistleblower protections to the full 
House. Last fall, we considered H.R. 1317, the Federal 
Employees Protection of Disclosure Act. This legislation 
contains a series of important reforms, including reforms that 
would provide protection to whistleblowers like Mr. Ceballos 
who disclose wrongdoing in the course of their employment. And 
earlier this year we passed H.R. 5112, which contained 
provisions providing whistleblower protections to national 
security whistleblowers. For the first time, this legislation 
would provide genuine remedies for these courageous employees.
    The Senate has also acted on this issue. As part of this 
year's defense authorization bill, it has included language 
substantially similar to H.R. 1317.
    Mr. Chairman, we must do all we can in the light of the 
Ceballos decision to ensure that government whistleblowers are 
protected from retaliation. The legislation that we have 
reported is a good start, but our efforts will amount to little 
if they are not taken up by the full House or included in the 
final conference report.
    Thank you, Mr. Chairman.
    Chairman Tom Davis. I agree, Mr. Waxman. Thank you very 
much.
    [The prepared statement of Hon. Henry A. Waxman follows:]

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    Chairman Tom Davis. Mr. Platts.
    Mr. Platts. Mr. Chairman, I yield to the gentleman from 
Connecticut.
    Mr. Shays. Just very briefly, Mr. Chairman--because I have 
to meet someone and I'll be back--but I think this is an 
extraordinarily important hearing. When an administration wants 
more power, you need to make sure three things happen; one, you 
have a strong Civil Liberties Board, which we don't yet have; 
second you have a whistleblower process that works; and third, 
that you have strong congressional oversight. We're doing the 
strong congressional oversight. We need to improve the 
whistleblower statute and process, and we need to improve the 
Civil Liberties Board. And I thank the gentleman for yielding 
to me. Thank you.
    Mr. Platts. Thank you, Mr. Shays.
    Mr. Chairman, I want to thank you for convening this 
hearing so we have a better understanding of the Ceballos 
decision and its implication for whistleblowers. I also want to 
thank you for your longstanding assistance and partnership with 
me as we try to shore up and expand whistleblower protections 
for Federal employees who courageously expose waste, fraud, and 
abuse or threats to the safety of our fellow citizens.
    Last year, on September 29th, we passed out of this 
committee bipartisan legislation that I had introduced, H.R. 
1317, the Federal Employee Protection of Disclosures Act, to 
reinforce and extend protections for Federal employees who blow 
the whistle on improper actions that undermine our government.
    Companion legislation in the Senate, the Senate bill 494 
was approved unanimously by the Senate Committee on Homeland 
Security and Governmental Affairs on May 25th. And just last 
Thursday, June 22nd, Senators Akaka and Collins successfully 
incorporated S. 494 into the Senate defense authorization bill.
    In the Ceballos decision, the Supreme Court held that 
public employees blowing the whistle in their official duties 
are not protected by the first amendment. Instead, the speech 
in their official capacity is protected by whistleblower rights 
provided by law. In opting not to create a right under the 
first amendment for whistleblowers, Ceballos emphasizes the 
importance of the strength of existing protections provided by 
statute.
    The Ceballos decision is Congress' wake-up call, Mr. 
Chairman, to strengthen whistleblower protections under the 
law.
    Ceballos means that statutory protections are 
whistleblowers' one and only shot at due process and protection 
from retaliation. The decision does not necessarily weaken 
Federal whistleblower protections, but it certainly 
demonstrates the importance of reinforcing current protections.
    In effect, Ceballos tells us that statutory protections are 
a whistleblower's last and sometimes only recourse to seek 
protection from retribution. Congress, therefore, has the 
responsibility to ensure that Federal whistleblower protections 
are clear, strong, and without loopholes.
    I'm hopeful that this hearing will attract more attention 
to the importance of improving protections for whistleblowers. 
It is my sincere hope also that this hearing will help us to 
move quickly to floor consideration of H.R. 1317.
    The Ceballos decision has sent us a clear message to 
strengthen whistleblower protections, and I sincerely hope that 
we listen, and, more importantly, that the House acts on H.R. 
1317.
    I yield back the balance of my time.
    Chairman Tom Davis. Well, thank you very much.
    Any other Members who have statements for the record? 
Mrs.--we want to move ahead, but we'll let the Members make 
brief statements. All Members will have 7 days to submit 
opening statements for the record.
    Ms. Watson was here first.
    Ms. Watson. Thank you so much, Mr. Chairman, for holding 
this important hearing that addresses issues concerning 
protecting the employee rights throughout our Nation. And I 
would like to thank our witnesses for their testimony.
    We're here today to discuss the Garcetti v. Ceballos 
decision that took place or started right in the district right 
next to mine in Los Angeles and its impact on whistleblower 
protection.
    In our discussion we'll be working to reassure the 
Americans that the principles of free speech and equal rights 
for all that our Nation is built upon will be protected in the 
workplace.
    Whistleblower protection allows Federal employees to make 
protected disclosures of government information to appropriate 
parties and not face retaliation for their actions. Federal and 
State employees rely heavily on the first amendment for 
whistleblower protection. Our public service employees should 
be able to defend themselves against retaliation for 
disclosures made in the course of their official duties. We 
must work to expand whistleblower protections to Federal 
employees so that they have the right to work without the fear 
of retaliation.
    Congress must foster an environment that encourages 
employees to come forward with knowledge of actions or policies 
detrimental to our democratic values. This vision cannot be 
realized if workers possessing crucial information are stymied 
by fear of reprisal or if they are choked by inflexible rules 
and regulations.
    Mr. Chairman, we often forget our government is made up of 
the people, people who have often chosen a career in government 
because they have chosen to forego more lucrative careers to 
serve their country. We must continue to recruit and retain the 
best and the brightest for government service. In doing so, we 
must also ensure that they will be protected from scrutiny and 
embarrassment in the workplace.
    I yield back.
    Chairman Tom Davis. Thank you.
    Ms. Norton first.
    Ms. Norton. Thank you, Mr. Chairman. I very much appreciate 
your not letting too much time go by after the Ceballos 
decision to figure out where Federal employees stand when it 
comes to whistleblowing. I certainly hope that Justice Kennedy 
is right when he compares them to our own whistleblower 
statutes. It's very interesting, given the first amendment 
basis of the decision.
    Mr. Chairman, this is really no time to allow any doubt 
about whistleblower laws. When they were originally passed, the 
catch words, ``fraud, waste and abuse'' I believe most 
propelled them. But today I think the most important reason for 
whistleblower laws really goes to the safety and security of 
our country.
    I want to thank you, Mr. Chairman, for working with me when 
TSA employees were left out of whistleblower protection in the 
Federal Employees Protection and Disclosure Act, which we are 
reporting out. That was not our intent, and that's been 
corrected, and, most important, considering that we're talking 
about TSA employees who are the screeners.
    Also in that bill, Mr. Chairman, we overturned the Federal 
circuit's standard, the so-called irrefragable proof standard, 
and have returned to a substantial evidence standard when it 
comes to judging whether or not an employee is entitled to come 
forward without retaliation.
    I'm very troubled, though, that the Federal circuit 
decision stood since 1999. Consider that is precisely the 
September 11th period, it makes you wonder, it almost makes you 
shiver, particularly when you realize that only one of I 
believe 96 such decisions were found to be recognizable by the 
court in that period. So you have to ask yourself whether or 
not during that period there was an absolute deterrent for 
whistleblowers to come forward right when I think most would 
agree we needed them.
    So here now comes the Supreme Court, and I am troubled. I 
agree with the ranking member that this may be more serious 
than we'd like to think. At least we need to clarify and get 
this committee on record, as you are doing today, Mr. Chairman, 
and discerning whether or not there is anything we need to do.
    I understand, you know, the need to make sure that 
employees do not engage in insubordination, but I can't quite 
figure out this distinction between going on and speaking 
publicly and doing what Ceballos did, which is write a 
memorandum in normal order in order to get the attention of his 
superiors before they committed what he believed to be an error 
of the kind you don't want to occur in the criminal justice 
system. It's very, very troublesome. Apparently, if he had gone 
out and blown the whistle on them in public, that would have 
been all right. Very, very hard to understand.
    Above all, Mr. Chairman, I want to stress how important 
protections against retaliation are. When I chaired the EOC, I 
was very bothered by the practical effect of the retaliation 
provision, which I understood to be absolutely necessary. The 
practical effect is you will get a lot of people coming forward 
with notions of one kind or another that aren't valid because 
they know at the very least you can't retaliate against them. 
But it seemed to me there was no way around that; that whatever 
they come forward with, even if they are frivolous, retaliation 
certainly is not the response that the agency would want to 
send out.
    And without a retaliation provision that is solid, so that 
people know that if they work in TSA or in Homeland Security 
they can risk saying this, if they work in the CIA, they can 
risk reporting this, without that what you're going to have is 
people doing more leaks, and you're going to have fewer and 
fewer people coming forward in any case.
    Thank you, Mr. Chairman.
    Chairman Tom Davis. Thank you very much.
    I have Mr. Cummings.
    Mr. Cummings. Thank you very much, Mr. Chairman. I'll be 
brief. I understand the time constraints, but I wanted to just 
say a few words here, Mr. Chairman.
    I'm all too familiar with the vital role whistleblowers 
play. I'm also familiar with the compelling reasons why we 
should protect them. Earlier this week, Mr. Souder and I, as 
Chair and ranking member of the Subcommittee on Criminal 
Justice, Drug Policy, and Human Resources, held a hearing to 
examine a Government Accountability Office report on clinical 
lab safety. That is every single lab, health lab associated 
with hospitals in this country. I won't get into the details 
here, but the GAO findings were noteworthy and uncovered 
serious deficiencies in the way clinical labs across the Nation 
are inspected, concluding it could not attest to the quality of 
those labs. To be sure, Ms. Leslie Aaronovitz indicated that 
she would not be comfortable with having her family rely on 
results from any clinical lab in this country.
    Clearly we must address this situation. I look forward to 
working with the Centers for Medicare and Medicaid Services and 
the appropriated accrediting organizations to remedy the 
problems that GAO uncovered. But we would not have even known 
to investigate this problem had it not been for this woman 
named Kristen Turner.
    Ms. Turner is what you call a whistleblower. As a clinical 
technician in Maryland General Hospital in Baltimore, Ms. 
Turner had been an outspoken critic of the way the hospital's 
labs were run. She spoke out to supervisors, hospital 
leadership, and anyone in authority about the dangers of the 
professional setting in which she worked. Sadly, no one 
listened. It it was not until Ms. Turner alerted the Baltimore 
Sun to the horrific conditions at the Maryland General Hospital 
that people's ears began to perk. And it was later discovered 
that over 2,000 patients in Maryland General had gotten faulty 
HIV and Hepatitis C results.
    Ms. Turner paid for her efforts with her health and her 
job. I'm determined to honor her sacrifice. That is why I'm 
determined not to only address deficiencies in our clinical 
labs, but to also protect whistleblowers in the public and 
private sectors.
    We are working with accrediting organizations to encourage 
clinical lab workers like Ms. Turner to come forward by posting 
signs with confidential hotlines and rigorously investigating 
reports of wrongdoing. But the argument for protecting would-be 
government whistleblowers is equally compelling. As with the 
health care industry, the work of government touches the lives 
of us all, and we have a vested interest in making sure it is 
effective and efficient.
    Congress to this point has expressed a clear priority for 
protecting the rights of whistleblowers. As the Supreme Court 
noted in the case of Garcetti v. Ceballos, ``The dictates of 
sound judgment are reinforced by the powerful network of 
legislative enactments, such as whistleblower protection laws 
and labor codes available to those who seek to expose 
wrongdoing.''
    And with that, Mr. Chairman, I look forward to hearing from 
the witnesses. And we must, we must, protect whistleblowers.
    Chairman Tom Davis. Thank you.
    [The prepared statement of Hon. Elijah E. Cummings 
follows:]

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    Chairman Tom Davis. Mrs. Maloney.
    Mrs. Maloney. Thank you, Mr. Chairman and ranking member.
    I think one thing we can all agree on is that the current 
system is broken and whistleblowers are simply not being 
protected. The recent Supreme Court decision raises even more 
questions about who we are going to protect; the whistleblower 
or the wrongdoer?
    I anticipate that we will hear a great deal of commentary 
today arguing that the reaction to this decision has been 
overblown and that this case did not strip employees of 
whistleblower rights. While the impact of the decision may be 
arguable, the message to potential whistleblowers is loud and 
clear: Speak out at your own risk.
    Too often our system retaliates against whistleblowers 
rather than thanking them for standing up for what they believe 
is right. This committee has heard from many of them, including 
Sibel Edmonds, the former FBI translator who was fired for 
raising questions about the way the FBI was translating 
important information about our Nation's security. Her reward 
for raising these issues included having her security clearance 
stripped, being fired from her job, and being forced to endure 
a year-long court battle that has prevented her from having any 
normal life. Things are so bad with her case that when she 
testified before this committee, she literally could not tell 
us anything about her herself, where she was born or what 
languages she speaks; and sadly, she is not an exception.
    We have moved forward with legislation such as H.R. 1317, 
the Federal Employee Protection of Disclosure Act, that would 
protect government whistleblowers. But similar legislation 
failed last Congress, and by all accounts there is strong 
opposition by the Bush administration to these protections.
    I have teamed up with Congressman Ed Markey and others to 
introduce H.R. 4925, the Paul Revere Freedom to Warn Act. Our 
legislation would provide the same whistleblower protections 
that Congress provided to those reporting accounting fraud in 
the Sarbanes-Oxley Act to all Federal employees, contractors, 
subcontractors or corporate employees. Passage of either of 
these bills will send a strong message to whistleblowers that 
we care, and that they will be protected when they raise 
serious issues of wrongdoing. Not only is this the right thing 
to do, we will be a better and safer Nation for it.
    And I would like to be associated with the comments of my 
colleagues on this side of the aisle that raised many important 
issues, including the fact that, with the way it is now, 
whistleblowers are not going to come forward; they're not going 
to speak out because they see that those who do speak out are 
retaliated against.
    I thank the chairman for holding this hearing. I yield back 
my time.
    Chairman Tom Davis. Thank you.
    Mr. Kucinich.
    Mr. Kucinich. Thank you very much, Mr. Chairman. Welcome to 
the witnesses, and especially Mr. Ceballos.
    In Mr. Ceballos' case, the court found that his speech as 
an employee--which represented his work product--was not 
protected from managerial discipline under the first amendment. 
The court determined that Mr. Ceballos was speaking as an 
employee, not as a citizen.
    My own personal view is that Mr. Ceballos was speaking to 
public interest. However, in alerting his superiors and the 
defense counsel that the affidavit had serious 
misrepresentations and that the case should be dismissed, in 
the matter of public interest, there should be protections for 
employees like Mr. Ceballos, but since it was ruled that the 
first amendment didn't protect him, then he wasn't protected. 
This precedent does everyone a disservice.
    The Ceballos majority of the court advised Federal 
Government workers to rely on Federal whistleblower laws, but 
current whistleblower protections are limited, and Federal 
whistleblowers may have no protection against retaliation for 
disclosures made as part of their official duties.
    Under current law, the Federal Circuit Court of Appeals has 
exclusive jurisdiction over whistleblower cases appealed from 
the Merit Systems Protection Board ruling, yet the Federal 
Circuit excludes most whistleblower claims, including 
disclosures made in the course of an employee's official 
duties.
    The Ceballos decision leaves Federal employees without a 
remedy against retaliation for disclosures made in the course 
of their official duties.
    Furthermore, the Ceballos decision also sets a precedent 
for State government employees who relied on the first 
amendment for whistleblower protections. While most States have 
enacted some form of whistleblower protections, these laws vary 
widely. The first amendment has been the most solid protection 
from retaliation against whistleblowers, and in States without 
whistleblower laws, the first amendment has been the only 
protection for State government employees who have disclosed 
information in the course of their official duties. Such 
employees no longer have that protection.
    A government employee who makes a decision to risk his or 
her career of future promotions and pay raises to report 
information about government wrongdoing, and does so in the 
interest of public welfare, deserves a medal. Instead, he or 
she is subject to job termination, demotion, harassment and 
other disincentives to continue working. It is up to all of us 
to protect these employees and their disclosures which benefit 
us all.
    I believe this hearing will illustrate to us all the 
desperate need for stronger legislation to close the loopholes 
in our whistleblower protection laws. These basic protections 
should be applicable to all Federal employees and all Federal 
contractors across the board.
    Mr. Chairman and Ranking Member Waxman, your work on this 
committee is so important in furthering whistleblower 
protection, it's time that Congress stood up for people who are 
standing up for the public interest. I want to salute everyone 
who has ever taken a chance in protecting the public interest, 
everyone who ever knew there was a risk in disclosing something 
that was otherwise hush-hush. These are the people who make 
America a great Nation.
    Thank you.
    Chairman Tom Davis. Well, thank you all very much. I 
appreciate everybody's comments. Again, Members will have 7 
days to submit opening statements for the record.
    Our first panelists here are Stephen Kohn, who is the Chair 
of the National Whistleblower Center; and Roger Pilon, who is 
the vice president for legal affairs at the CATO Institute. We 
appreciate you being with us and being patient through the 
opening statements.
    If you would just rise with me and raise your right hands. 
The policy is we swear witnesses in.
    [Witnesses sworn.]
    Chairman Davis. Your entire statements are in the record. I 
read them both last evening.
    You have a light in front of you that turns green when you 
start, orange after 4 minutes, red after 5. We try to keep as 
close to time as we can, but I want to make sure you get your 
salient points out.
    Mr. Kohn, we will start with you, and then Mr. Pilon, and 
then we'll go to questions.

 STATEMENTS OF STEPHEN M. KOHN, CHAIR, NATIONAL WHISTLEBLOWERS 
CENTER; AND ROGER PILON, VICE PRESIDENT FOR LEGAL AFFAIRS, CATO 
                           INSTITUTE

                  STATEMENT OF STEPHEN M. KOHN

    Mr. Kohn. Thank you very much, Chairman Davis, members of 
the committee, for this opportunity.
    The Garcetti decision places every honest government worker 
in the United States of America at risk for retaliation simply 
because they didn't hire a lawyer and filed their concerns with 
the wrong person; and under Garcetti, the wrong person is their 
own boss. It turns whistleblower rights on their head.
    Sitting over toward my right are three persons I've had the 
honor of representing, or have represented: Sibel Edmonds--
you've heard a little bit of her, she exposed security 
deficiencies at the FBI; Dr. Jonathan Fishbein, who exposed 
life-threatening drug safety practices at the NIH; Bunnatine 
Greenhouse, who was the first to document contract violations 
in the war with Iraq that have hurt taxpayers and small 
businesses.
    Each of these whistleblowers, dismayed, learned of the 
problems through their official duties. Each went initially 
through their chain of command. Had the Garcetti decision been 
law, the results of their conduct would be radically different.
    I'll give you an example in Mrs. Greenhouse's case. When 
she wrote on the contract ``violation of procedure,'' the Army 
Corps didn't know about Garcetti; so they said, you didn't have 
the authority to write on that contract; we're going to demote 
you. Had they known about Garcetti, they would have been a 
little smarter. They would have said, ``Great, Bunni, we loved 
your comments on the contract. That's part of our official 
duties. High five. By the way, you're fired.'' And she would 
have absolutely no protections, either under the Whistleblower 
Protection Act or the first amendment.
    Garcetti is so illogical that under the first amendment a 
person who burns the American flag has more constitutional 
protections than someone who exposes a bribe, reports that the 
space shuttle may blow up, or does their best to get a FISA 
warrant on a suspected terrorist that just may want to learn 
how to fly airplanes but not land them. It turns the whole 
process on its head.
    Justice Kennedy, in a sense to justify the decision, said 
there is a--in his words a, ``powerful network of whistleblower 
laws.'' We've evaluated that powerful network. If you would 
look at chart No. 1, you will see that 58 percent of the States 
do not protect internal official-duty whistleblowers who lost 
protection under Garcetti; 58 percent, no protection.
    If you look at chart 2, what you will see is this 
protection afforded in the 42 percent of the States that do 
afford protection is far weaker than the protection under the 
first amendment. In fact, 95 percent of the States which would 
protect a Garcetti-type whistleblower, they're weaker 
protections.
    The first amendment was implemented by a law known as 42 
U.S.C. 1983, which for years was viewed as the best safety-net 
whistleblower law in the United States. It is not anymore.
    But what is the practical impact? You may ask, so what if 
they can't be an official-duty whistleblower or report 
internally. I've been doing whistleblower cases for 22 years 
and almost every whistleblower starts internally.
    We'll have time for one last chart, which is a summary of 
the last 50 cases in which an employee used 42 U.S.C. 1983 
successfully. They're cases with merit. And you will see 86 
percent were internal official duty, and only 14 percent were 
so frustrated as to go outside of the system. The Garcetti 
decision, there is no safety net. It is Congress that must act 
to fix the problem.
    We have made a very simple proposal to the committee, one 
page that will fix the problem. Thank you very much.
    Chairman Tom Davis. Thank you very much.
    [The prepared statement of Mr. Kohn follows:]

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    Chairman Tom Davis. Mr. Pilon.

                    STATEMENT OF ROGER PILON

    Mr. Pilon. Yes, thank you, Mr. Chairman, and thank you for 
the invitation to be here this morning.
    After listening to my colleague and listening to the 
opening statements, I feel I need to start a little differently 
than I had originally planned to do. My prepared testimony, if 
you have had a chance to read it, I think is a rather even-
handed treatment of the case.
    I will open by saying that the whistleblower issue is very 
serious, and there are doubtless many, many very important 
credible whistleblowers out there who are not getting their 
just day in court. At the same time, we also know there is 
another side to the matter; and that is, having served at the 
Office of Personnel Management I've seen it, many 
whistleblowers are approaching the bodies, either 
administrative or judicial, with less than meritorious cases.
    So we have a balance that we need to strike between the 
needs of management to run government efficiently on the one 
hand, and the needs of whistleblowers to bring to the attention 
of the public things that need to be brought to their 
attention.
    And so let me turn now to your invitation, Mr. Chairman. 
You raised three concerns in that letter:
    No. 1, to help us understand the Ceballos case, I will tell 
you it is not the easiest case in the world to understand. I'll 
try to make some sense of it this morning.
    Second, what effect it has on the statutes. I do not see it 
as having had any effect whatsoever on the statutory 
protections, and therefore it seems to me--and this was your 
third concern, the press reports. It seems to me they were 
overblown and should be noted as such.
    Now, let me turn to the case itself. The ruling that came 
out of the case was one whereby if an employee is speaking 
pursuant to his official duties, then he is not speaking as a 
citizen and therefore has no first amendment protection. By 
contrast, if he is speaking as a citizen, then possibly he has 
a first amendment protection if it does not interfere too much 
with the operations of government that he is there to carry 
out. That in a nutshell is what the majority held.
    The dissent criticized the majority mainly because it had 
put forth a categorical distinction between speaking as a 
citizen and speaking as an employee. And it seems to me, that 
criticism is well founded. What we have in many cases is mixed 
cases, whereby a citizen--rather, an employee is speaking 
within the framework of his official duties as an employee, and 
yet is also speaking as a citizen. And it seems to me the 
Ceballos case was a perfect example of that.
    Indeed Justice Souter in his dissent brought that out. And 
I suspect that the best opinion in the whole series of opinions 
was that by Justice Breyer, who saw this as indeed a mixed 
case.
    Now, the problem when you get into the kind of standard 
that was put forward by Justice Souter is that it involves the 
court in making all kinds of policy and value judgments, which 
courts are not ordinarily prone to do. For example, he said 
that the employee should prevail--should not prevail, unless he 
speaks on a matter of unusual importance, satisfies high 
standards of responsibility in the way he does it; and he 
listed such categories as health and safety, deliberately 
unconstitutional action, serious wrongdoing and the like. In 
other words, what you've got now is a call for the court to be 
ultimately exercising its discretion. And so at the end of the 
day we've got to ask the question: Who is going to ultimately 
have the discretion in these matters? Is management going to 
have the discretion, or is the court going to have the 
discretion? And what you want to avoid is having a situation 
whereby all of these cases--and, of course, there are in 
principle many, many cases that do not end up in the Federal 
courts to be adjudicated there, or the courts will be swamped 
with them.
    So it seems to me that the best way to go about this, 
because the first amendment can get you only so far in 
adjudicating these matters as a matter of principle, where you 
need to go is with statutory remedies. And as Justice Souter 
brought out, there are some serious problems--and Mr. Kohn did 
as well--with the statutory remedies that are out there and are 
available. That is, of course, a subject for the next panel to 
address.
    We all want these disputes to come out right, but at some 
point some party is going to have to have the discretion. And 
the question, it seems to me, for this committee is where are 
you going to leave that discretion, with the management, or are 
you going to leave it with the court? Thank you.
    Chairman Tom Davis. Well, thank you very much.
    [The prepared statement of Mr. Pilon follows:]

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    Chairman Tom Davis. Mr. Kohn, you're fairly unequivocal, 
and you believe that the Ceballos decision was wrongly decided. 
But just playing devil's advocate for a minute, if the court 
had gone the other way, wouldn't it have given employees the 
ability to challenge any and all decisions by their superiors 
without repercussions? What are the limits?
    Mr. Kohn. Absolutely not. Essentially the law that the 
Garcetti case reversed was the law followed by almost all 
courts for almost 30 years, and it is a very simple standard: 
Is the speech of a matter of public concern? Pure workplace 
grievances have no constitutional protection, and if it was 
speech of a matter of public concern, it could be rated high 
public concern, low public concern.
    To the second part of the test, which was a balancing test, 
the interest in the speech versus the interest in efficiency of 
government. And that was the test applied in courts pretty much 
uniformly, with a couple of outliners, for 30 years. It worked 
pretty well. So it wasn't some type of free speech right for 
employees on anything; it had to be a matter of public concern.
    Chairman Tom Davis. OK. We have a lot of discussions here 
on policy issues, where you come out. And every employee who 
has a grievance, who has gotten their 2 cents in at the table 
but didn't get their way, could go out front and that would be 
very inefficient, wouldn't it?
    Mr. Kohn. It would. But there is a second part of the test.
    Chairman Tom Davis. I mean, obviously waste, fraud and 
abuse would be unfettered, in terms of their ability to expose 
those things.
    Mr. Kohn. But there was a second part, and the courts dealt 
with this. The first issue is was the speech even protected. 
But even if it was, you could still fire any employee, if you 
would have fired an employee who hadn't engaged in that same 
type of speech for the same thing. There was no immunity here. 
So if an employee was incompetent, if an employee showed up 
late, even if the employee's speech was outrageous in the sense 
that he pulled out a bull horn in the middle of the workplace, 
they could be fired. So there was no insurance policy here. 
They could discipline employees, and they had legitimate 
controls over what was a matter of public concern.
    What occurs here is that employees' rights are cutoff at 
the start. They could be the best employee in the office, and, 
simply for writing a memo exposing a serious issue of 
misconduct that the supervisor wanted to keep hidden, they're 
fired. And under this decision they're out.
    Chairman Tom Davis. Even if they keep it in house?
    Mr. Kohn. Absolutely. If they keep it in house, they are 
totally out. If they didn't write that memo to their 
supervisor, stabbed the supervisor in the back, went running to 
the press and called a press conference, they're protected.
    Chairman Tom Davis. And that's a bad decision, if that's 
where it comes down.
    Mr. Pilon, do you agree with that?
    Mr. Pilon. Well, he said quite a bit so.
    Chairman Tom Davis. I mean, just talking about it depends--
obviously if you write a memorandum to your employer, this is 
something that comes across your desk, you feel it is--
something is wrong--and you write that memorandum to your 
employee, you keep it in house; what is the problem?
    Mr. Pilon. I don't know that the court has given us an 
answer to that, frankly, and that's part of the problem. I 
would respond, however, to this idea of a matter of public 
concern, which I assume you are talking about the Pickering 
standard before that.
    The problem there is it still is a difficult line to draw. 
I mean go from waste, fraud, and abuse on the one hand to a 
simple employee grievance on the other hand. The employee 
grievance could itself be a matter of public concern if indeed 
the resolution of it serves as a precedent for future employee 
grievance resolutions. And so it is very hard to know whether 
something is going to be of a matter of public concern or not.
    Again, there just are not bright lines here, and we are far 
better off trying to, it seems to me, address these 
statutorily, and probably with different statutes pertaining, 
to say the CIA employee on the one hand versus someone at HHS 
on the other hand. Because they are very different venues.
    Chairman Tom Davis. Well, even the public concern issue, 
which is--I guess could be litigated through time--how do you 
balance the State's interest in promoting workplace efficiency? 
That's a line that seems very difficult to draw.
    Let me ask you this, Mr. Pilon. It seems the key issue is 
this notion of ``pursuant to their job description'' that the 
court used in Ceballos. Do you think this is now what will be 
litigated, and how do you think this will come out?
    Mr. Pilon. Yes, it will. And Justice Souter brought out the 
point that now we are going to see litigation over this fact-
bound issue of whatever it is. Moreover, there is the 
speculation that he put forward in the opinion that we will now 
take the PD's position description and expand the duties under 
it and so that everything becomes a matter of activities 
pursuant to your official duties.
    Chairman Tom Davis. But I think you both make the point, 
this begs the statutory solution.
    Mr. Pilon. Absolutely.
    Chairman Tom Davis. OK. Mr. Waxman.
    Mr. Waxman. Thank you, Mr. Chairman. I want to thank both 
of you for your testimony. Congress and the American people 
rely on whistleblowers to disclose unlawful activities, waste 
and abuse, and this committee has learned that instead of being 
rewarded for this patriotism, government workers face the loss 
of jobs, livelihood, and reputations. That's what we are trying 
to deal with, how we can encourage people to come forward 
without facing sanctions for doing it. And now more than ever, 
we need whistleblowers to do what we want them to do, to come 
forward and expose problems within the government.
    The Federal courts seem to be steadily eating away at the 
whistleblower protections. As a practical matter, the Ceballos 
decision leaves whistleblowers with no recourse against 
harassment, job loss, and other retaliation.
    Do you, Mr. Kohn, think that this will have a chilling 
effect on government employees? Are they going to be fearful as 
a result of this decision?
    Mr. Kohn. There is absolutely no doubt that decision has 
already had a chilling effect given the type of communications 
my office has seen. It clearly will. But I'll tell you where 
the chilling effect--when it will really come in is when you 
have a workplace and someone actually gets fired or demoted, 
legally. To understand Ceballos, watch the--we have seen this 
in other areas of the law in which Congress amended the 
statutes to protect the internal whistleblowers, like the 
Atomic Energy Act, where one court said oh, you can't go 
internal. Once you fire someone, you will have such a chilling 
effect. And if you look at the examples of the three 
whistleblowers I gave coming in here, what was discovered in 
the investigations of each of their cases is that those offices 
had major problems. Those offices had a motive for trying to 
silence the internal whistleblower. And it will be precisely 
the dysfunctional or the corrupt office that will benefit from 
this decision; whereas, if you have an office that's honest and 
open but those employees are afraid to fully communicate, the 
honest office will be penalized. The chilling effect will have 
terrible consequences, both for honest workplaces and 
benefiting dishonest workplaces.
    Mr. Waxman. Do you think we need a statutory change? Have 
you had a chance to review the proposals that have come out of 
this committee with regard to whistleblower protection?
    Mr. Kohn. I have. And I salute the efforts to reform the 
Whistleblower Protection Act.
    That amendment being proposed would partially overturn 
Ceballos under that law. But it doesn't fully do it and it 
doesn't cover the vast majority of employees who have lost 
their rights, which is all State and local and Federal 
employees not covered under WPA.
    Also we have used the first amendment very effectively for 
all Federal employees. And those rights cannot be restored by 
the WPA amendment. We have proposed a very simple law. It 
essentially takes a definition of protected activity that's 
very established, partially from the Sarbanes-Oxley Act and 
partially from the general laws. It gives a procedural remedy 
that's realistic, the precise procedural remedy that this 
Congress gave to employees of the NRC and the Department of 
Energy this term, and it defines employees consistent with 
Title 7. If you can file a claim for race, sex, or age 
discrimination, let your employee file a claim for 
whistleblower protection.
    Those three simple steps would cover and protect this 
loophole in 99 percent or more of every American workplace 
across the country.
    Mr. Waxman. Mr. Pilon, do you--you think we needed 
statutory changes as well? What would you recommend we do in 
terms of the statute?
    Mr. Pilon. One of the things it seems to me that you need 
to address at the outset, is where did the presumptions lie and 
who has the burden of proof. You look at Justice Souter in 
dissent, and he offered one proposal; but it is pretty heavily 
on the government side, interestingly. He spoke of the 
government's legitimate authority, and that before an employee 
could overcome it, he would have to have a complaint that had a 
certain minimum heft--his words. I don't know what that 
language translates out to in any given situation.
    Again, so many of these issues are so difficult to deal 
with, because, as the majority said, they are so fact-
dependent. You can lay out some general principles, but once 
you get beyond that, you are dealing with facts, situations, 
which vary enormously. And if the court cannot address these 
because the first amendment is simply too sparse to do it, it 
may be that Congress is going to be limited as well, because 
there is so much you can write in the way of statutes that are 
going to address every agency running from the CIA on the one 
hand to an ordinary nonintelligence-related office on the other 
hand.
    Mr. Waxman. Thank you.
    Chairman Tom Davis. Thank you. Mr. Dent, any questions?
    Mr. Dent. Thank you. Mr. Chairman.
    To both panelists, at what point did Mr. Ceballos' 
activities qualify as part of his job description? When he 
answered the phone call from the defense counsel or when he 
went to the site during working hours? Can you give me some 
insights, sir?
    Mr. Pilon. Well, I'll start with that. It seems to me that 
all that he was doing was part of his job description. And it 
was with--all of it was with matters of public interest.
    If anything, this was as clear a mixed case as you could 
find. I mean, we don't want sheriffs issuing false affidavits 
in order to obtain a warrant, assuming the facts are as they 
are reported in the case. We have to assume that because it was 
up on summary judgment motion.
    So I think everything that he was involved in was related 
to his job description.
    Mr. Kohn. And yes, Mr. Dent, I think your question actually 
exposes one of the gravest deficiencies in the decision, which 
is what will occur now is endless, useless litigation on what 
is in or out of a position description and that I mean--and 
that's going to be carried on for years in summary judgment 
motion litigation. The Supreme Court found that his writing 
that memo exposing potential perjury, a misrepresentation in 
sworn testimony, was part of his duties and he lost protection 
for his memorandum.
    But what is going to happen now is employees will look at 
their position description, employers will look, and it's going 
to go on and on.
    Mr. Dent. I guess as a followup then, how could Mr. 
Ceballos have done the same type of followup investigation, 
made the same recommendation, without having it fall within his 
job description?
    Mr. Kohn. And it is, again, kind of the absurdity of the 
decision. Had he not written his memo, but had he written a 
press release and issued it to the Los Angeles Times, he would 
have been protected under the first amendment.
    When employers would want employees to be encouraged to do 
that without working things out, it makes no sense. But in 
reality, since most whistleblowers, 99 percent, try to work 
things out through the chain of command, most won't issue a 
press release at the first drop of an issue. It is going to 
have--that's the devastating impact of the decision. But the 
illogical side of it is why encourage employees to write press 
releases?
    Mr. Pilon. I don't see the opinion that way. I don't see it 
as saying if he had gone with a press release, he would have 
been protected under the first amendment. I still think that he 
would have been subject to internal discipline if he had taken 
perhaps even more discipline.
    Mr. Dent. Thank you, Mr. Chairman. I yield back.
    Chairman Tom Davis. Thank you very much.
    Ms. Watson.
    Ms. Watson. My question to Mr. Kohn: Should Mr. Ceballos 
have quit first and then gone to the press?
    Mr. Kohn. Absolutely not. That would reverse employment law 
back 100 years.
    Ms. Watson. No. My question goes to whether he would have 
been covered by whistleblower protections?
    Mr. Kohn. If he had quit?
    Ms. Watson. Yeah.
    Mr. Kohn. If he had quit, the whistleblower protections 
would be irrelevant because he quit his job. He won't get it 
back.
    Ms. Watson. Well, what I am going to is that, as an 
employee doing what he had the authority to do, he made a 
recommendation, and apparently he was punished for doing his 
job. What would bring him under the protections as an employee? 
And the only thing I can figure out from what the two of you 
have said is he would have to become a citizen.
    Mr. Kohn. He could keep his job, but he would have to blow 
the whistle publicly. In fact, the Supreme Court remanded the 
case because he also testified in court and the court testimony 
could be protected under the first amendment. He also spoke, I 
believe, like at a Bar Association meeting. That public speech 
could be protected. So there is actually going to be a remand 
to see whether he actually went outside of his chain of command 
and whether that was protected.
    The problem with the decision, if you look at the 
statistics, about 85 percent of whistleblowers never go beyond 
the chain of command, and there they will be the ones who will 
lose their cases. Some do go outside the chain of command, and 
they still will be protected.
    Ms. Watson. Well, my great interest here is protecting 
people who are responsible, and from what I can gather by just 
a cursory review of what we have here, is that he was doing his 
job. As a public concern, they are getting ready to prosecute 
somebody based on the wrong methods of--and maybe false, I 
don't know--but how could we correct that? And you said you had 
something that----
    Mr. Kohn. It is very simple language that was put into 
Sarbanes-Oxley. It actually comes from the Atomic Energy Act. 
It has been applied to some Federal employees already, and it 
says a ``report to a supervisor or a person with the authority 
to correct the problem.'' That's it. It is as simple as that.
    Ms. Watson. Then that person would be protected.
    Mr. Kohn. That's right. If the employee reports it to their 
supervisor or----
    Ms. Watson. Once they took that step.
    Mr. Kohn. Then they are protected. And that exists in the 
law, and that's actually the judicial interpretation that's 
given to most whistleblower laws--Federal--until this decision, 
and it has worked.
    Ms. Watson. OK. Thank you.
    Chairman Tom Davis. Thank you. Ms. Norton.
    Ms. Norton. Thank you very much, Mr. Chairman.
    You know, it takes a whole lot of nerve to use the 
colloquial. To stand up and disagree with agency policy. I am 
very concerned about this confusing inside/outside distinction. 
It seems to me that--and let me ask you first this question--
that the court didn't have much choice under prior first 
amendment decisions which is allegiant on the citizen's right 
to speak out. That part of the decision that it seems to me 
didn't--I don't think the court would, without striking down a 
whole bunch of prior authority, could have said otherwise. But 
I am very confused by trying to envision an example of an 
employee who might speak out as a citizen but could not speak 
as--but would not be protected as an employee. I would like 
both of you to offer me an example of such an employee.
    Mr. Kohn. Well, we don't need to go further than Mr. 
Ceballos.
    Ms. Norton. I am left in total confusion by that one. So I 
guess I am asking for a law school hypothetical.
    Mr. Kohn. What it means is this--and this is now the law 
under this case. You are an engineer working in NASA. Better 
yet, you work in a security department in a police agency. Now, 
there is a case on this with a public employee that was not 
overturned. The President of the United States is shot. That 
employee says, ``Well, maybe a better shot next time.'' Words 
like that. You know, maybe we should--it is a good way to get 
rid of the President.
    The Supreme Court found that employee's speech protected 
because it was a matter of public concern about the President.
    Same employee is reviewing a security analysis of the 
safety of the President of the United States of America and 
finds a deficiency that might be embarrassing to their boss but 
puts the President's life at risk. Reports the deficiency to 
the boss. That employee can now be fired for that act.
    The decision is hard to understand because it makes no 
common sense. The very first court to look at this whole 
distinction back in the 1970's said the only way to adjudicate 
whistleblowers on internal/external is just use common sense. 
This decision does not make use of common sense and therefore 
it is very hard to understand.
    Ms. Norton. Yes.
    Mr. Pilon. I was just going to add that I fully agree that 
this decision drew the line in a place that is curious, to put 
it charitably. But that doesn't mean that we know where to draw 
the line.
    Let me flip it around just a little bit. You all have 
staff. And you know that there is a problem sometimes with 
disagreements with staff. And how much do you want your staff 
to be at liberty to speak freely--within the office or outside 
of the office--on policy differences you may have. There is a 
point at which managerial control of the message is important. 
And it's not easy to find how to draw that line in such a way 
that you are able to keep control of your operation, just as a 
manager in the government would have to, and yet allow----
    Ms. Norton. Mr. Pilon, you said that you indicated in your 
response to one of my colleagues, I think in your previous 
response, you just said in response to my colleague here that 
he would have been disciplined either way. Now, assuming in 
good faith he believed that this was--this evidence was faulty, 
you know, the facts of the case, what are we suggesting that he 
should do if he would be disciplined either way?
    Mr. Pilon. In this particular case?
    Ms. Norton. Yeah.
    Mr. Pilon. As I said, this particular case was wrongfully 
decided.
    Ms. Norton. This is not the criminal justice system and 
it's very disconcerting. Perhaps I am identifying too much with 
this lawyer. What does he do if he got--conducts his own 
investigation, writes a memo. I mean, it is, you know, you have 
to--whenever you see somebody who's done something wrong, then 
you think, well, he should have done something right, if he had 
only done so.
    Mr. Pilon. Mr. Ceballas will be here on the next panel so 
you can ask him directly.
    Ms. Norton. I will ask no more questions. I will say this: 
that I don't see how one can avoid--we talk about, like I said 
in my opening statement, waste, fraud and abuse--I don't see 
how we can continue to disparage leaks. It does seem to me that 
disconcern about leaks to the New York Times, the 
investigations that are now going on on all of these leaks, if 
you are in one of these agencies with the confusion that we 
have been having, been able to unravel so far, you do have an 
alternative. You need to leak it to the press and don't tell 
anybody.
    Now, imagine what that means if we are talking about 
somebody in the CIA or the FBI or the Homeland Security. So if 
ever there is any reason to try to come to grips with this 
problem, it is not, in my judgment, wrong for a waste, for an 
abuse; it is the security of the United States and the safety 
of the American people.
    Thank you, Mr. Chairman.
    Chairman Tom Davis. Thank you very much. Mr. Shays.
    Mr. Shays. Thank you, gentlemen, for being here.
    I happen to believe, as I said when I started, that when 
you give an administration more power, you need to have 
protections. You need to have strong congressional oversight. 
We here can't function like a Parliament. We need to function 
like a separate branch of government. No. 1.
    No. 2, I believe that the Civil Liberties Board, 
recommended by the 9/11 Commission as it's related to the 
intelligence part of our government, needed to be established 
which would set up a separate board with certain power, 
couldn't be replaced by the President, Senate confirms 
employees in each of our 16 classified agencies, our 
intelligence agencies.
    And the third is strong whistleblower protection. I'm going 
to react to my limited knowledge of what I heard and read in 
testimony, and I want you to react to that.
    I believe it is incumbent on the Congress of the United 
States to have a whistleblower protection that works in the 
nonintelligence side of the equation and works on the 
intelligence side of the equation. My view would be not 
necessarily that the court ruled incorrectly here, because I 
believe that when you work for a government, when you work for 
a business, you have certain obligations to the government, to 
the business. So you can't just say I have freedom of speech; I 
can say any damn thing I want.
    What I then conclude is that if Mr. Ceballos did not think 
he had protection under the whistleblower statutes, that the 
whistleblower statutes are what is at fault, not a court 
decision that said he couldn't use his first amendment rights. 
That's kind of where my mind is.
    And can't this problem simply be solved by just making sure 
we have a whistleblower statute that works? So I would ask each 
of you that question.
    Mr. Pilon. Well, this is one of the questions that the 
chairman raised in his opening remarks that you will 
undoubtedly want to put to Mr. Ceballos, namely, why is it that 
he went the route of the first amendment rather than through a 
statute, and it may be that there are good legal reasons for 
that. I don't know what they are.
    Mr. Shays. But intuitively, do you believe that we should 
have a process where someone can speak out?
    Mr. Pilon. Absolutely. It is all part of good government. I 
mean, you put your finger right on it. On the one hand, you 
have to have agencies like the FBI and the CIA talking to each 
other so you don't have September 11th again. And you have to 
have discipline within those agencies and this means allowing 
for the free exchange of ideas so that were problems to arise, 
they will be vetted.
    Mr. Kohn. There absolutely must be a statutory fix. Period. 
The nature and scope of that fix can be debated, but each time 
a court in the past has issued this type of decision, there was 
an immediate legislative process.
    Mr. Shays. That's not really directly answering my 
question, because the implication of your answer is that a 
statutory fix that gives him his first amendment rights, and 
that's not what I am saying.
    I am saying, doesn't this really send the message to us 
that we need to correct--first off, do you think he--let me ask 
you in particular, Mr. Kohn. Do you think he had the ability to 
be protected under whistleblower protections, not first 
amendment protections? And second, if he didn't, is this the 
issue, then, that we needed--we need to have a better 
whistleblower statute?
    Mr. Kohn. The statute at issue in the case, 41983, is a 
very good statute. It affords a lot of protection. That's why 
people use it.
    Mr. Shays. You are talking about the whistleblower statute.
    Mr. Kohn. This is the Federal law that gave employees the 
right to have their constitutional rights protected. It is a 
little complex. There was actually a statute underneath the 
Ceballos decision, and they just interpret it in that way.
    The core question is when I say ``a statutory fix,'' that 
doesn't necessarily mean to restore your constitutional rights. 
It is a statutory fix to protect your whistleblower speech 
efficiency and effectively period. I don't think--I have a lot 
of disagreements with the Supreme Court decision, but I don't 
think it serves anyone's purpose now to re-debate it. We should 
look at what you need to have a good working whistleblower law, 
if it's consistent or inconsistent.
    Mr. Shays. We have two laws. We have one in the 
nonintelligence, one in the intelligence.
    Mr. Kohn. That are being proposed.
    Mr. Shays. That we have. And the one in the intelligence is 
not worded properly.
    Chairman Tom Davis. Mr. Cummings.
    Mr. Cummings. Where is the dividing line, according to the 
court, between the citizen acting and the employee acting? What 
divides it? Because it seems to me that you can have a 
situation where one may start out as an employee and end up as 
a citizen.
    Are you following what I am saying? In other words, in the 
dissent, Justice--one of the justices said something about it. 
There is some speech that a supervisor would not even want to 
get out because maybe the supervisor is involved in the 
process. Now, you know, some fraudulent action or something 
that may jeopardize the focus that government is supposed to be 
serving. So you have this person who starts off, I guess he's 
an employee. He's talking to the supervisor. The supervisor 
does not act. He keeps going up. It keeps going up. Next thing 
he knows, like you said a moment ago, he's got to go to the 
newspaper.
    At what point, first of all, is there any consideration 
under this case for the person who has to go through that 
process? In other words, say for example, in a hospital where 
this worker knows that people are getting faulty HIV AIDS 
results and he tells the supervisor and the supervisor just 
doesn't do anything. He keeps going up. Next thing you know, 
you see--or he has to go to a newspaper. What happens? I mean 
where is the dividing line.
    Mr. Kohn. Absolutely. And it is part of the 
counterintuitive part of the decision. Thirty years ago the 
Supreme Court decided Pickering, which is still good law. In 
Pickering, a teacher wrote a letter to the newspaper about 
budgetary issues in the school that related to his classroom. 
That was found to be protected free speech. He could not be 
fired. That is still good law. So going to the press is still 
protected activity.
    Now you have another Supreme Court decision called Givhan, 
and in that case an employee complained to a supervisor but it 
wasn't a complaint about anything to do with their particular 
job. That's still good law.
    So if you don't complain about anything you are dealing 
with at work, or you go to the press, you are still protected. 
Who isn't? It is that worker who in the course of their 
employment finds the problem and reports it reasonably through 
their chain of command.
    And the reason that is such a problem for whistleblower 
protection, that's what 80 to 90 percent of all whistleblowers 
do. So once you take this very reasonable commonsense 
protection away, the net result will be most whistleblowers 
will lose their case. But it is so counterintuitive that it is 
illogical, and I want to say that it is new.
    When President Reagan and his administration confronted 
this issue when it first came up in the courts, they were--the 
Solicitor, his Solicitor was on our side on this, Secretary of 
Labor was on our side. Secretary of Labor Brock, President 
Reagan's Secretary, here's what he said on this very issue: 
Employees who have the courtesy to take their concerns first to 
their employers to allow their employers a chance to correct 
the violations need as much protection as those employees who 
first go outside the system.
    That was common sense. It must be restored by statute.
    Mr. Cummings. One of the things that's so chilling about 
all of this is when we see the more recent attacks on say for 
example, the New York Times by the President and others because 
they provide information to the public. You know, it is when 
you combine this, what we are talking about here with that, the 
question is where do we end up? Will we end up in a situation 
where, say for example, the whistleblower, when they cannot get 
results for possibly, again, the AIDS test in my district, 
faulty AIDS test, and then goes to the papers, and if there is 
some chilling--some kind of clamping down on the newspapers, 
media, saying you can't report so-and-so and so-and-so, where 
does all of that end? Where do we go?
    Mr. Pilon. Could I comment on that, because the Swift 
program, which you are alluding to, raises the problem that is 
buried here that we haven't brought out yet; namely, what if 
there are policy differences between staff and management? The 
leak in this case apparently came from someone who didn't agree 
with the policy. And shouldn't management have some authority 
to address that problem?
    Mr. Cummings. But it is a question--and then just this one 
quick thing--but when you have a situation where management is 
basically clamping down because management may be a part of the 
problem, that's what I am getting to. So that's a whole 
different case.
    Mr. Pilon. That's a different case.
    Mr. Kohn. You have, again, I think hit the nail on the 
head. It is kind of a catch 22. If you can't complain to your 
supervisor--or if you do, you lose your protection. You want to 
go to the press, you have a first amendment right. But if the 
information you give to the press was classified proprietary 
Privacy Act violation, you can be investigated for that and 
fired for improperly leaking. So essentially the net result is 
confusion and opening valid whistleblowers to retaliation.
    Mr. Cummings. Thank you very much, Mr. Chairman.
    Chairman Tom Davis. Thank you very much. I want to thank 
this panel.
    What we'll do is take a 3-minute break.
    [Recess.]
    Chairman Tom Davis. We will now recognize our second panel. 
Thank you for staying with us. Mr. Richard Ceballos is the 
deputy district attorney for Los Angeles County District 
Attorney's Office; Mr. William Bransford, general counsel, 
Senior Executive Association; Ms. Mimi Dash, council president 
of Fairfax Education Association--retired; Lisa Soronen, staff 
attorney, National School Boards Association; and Miss Barbara 
Atkin, who is deputy general counsel in Natural Treasury 
Employees Union.
    Mr. Bergstrom, are you testifying? OK. Mr. Richard 
Bergstrom, the counsel for Morrison & Foerster; and Mr. Joseph 
Goldberg, representing the American Federation of Government 
Employees.
    Thank you very much for being here. It is our policy, as 
you know, that we swear you in before you testify. So if you 
will raise raise your right hands.
    [Witnesses sworn.]
    Chairman Tom Davis. Mr. Ceballos, you started this whole 
thing. We are going to start with you. And I think you know we 
try to stay within our 5 minutes. Your entire statement is in 
the record. So thank you very much.

 STATEMENTS OF RICHARD CEBALLOS, DEPUTY DISTRICT ATTORNEY, LOS 
 ANGELES COUNTY DISTRICT ATTORNEY'S OFFICE; WILLIAM BRANSFORD, 
  GENERAL COUNSEL, SENIOR EXECUTIVES ASSOCIATION; MIMI DASH, 
COUNCIL PRESIDENT, FAIRFAX EDUCATION ASSOCIATION, RETIRED; LISA 
 SORONEN, STAFF ATTORNEY, NATIONAL SCHOOL BOARDS ASSOCIATION; 
   BARBARA ATKIN, DEPUTY GENERAL COUNSEL, NATIONAL TREASURY 
    EMPLOYEES UNION; RICHARD BERGSTROM, COUNSEL, MORRISON & 
     FOERSTER; AND JOSEPH GOLDBERG, AMERICAN FEDERATION OF 
                      GOVERNMENT EMPLOYEES

                 STATEMENT OF RICHARD CEBALLOS

    Mr. Ceballos. Good afternoon, Mr. Chairman, members of the 
committee. Thank you for inviting me to speak today.
    Simply because I passed through the doors of my government 
employer to serve the public does not mean that I should be 
stripped of my rights as a citizen. Unfortunately, under the 
recent Supreme Court decision, I think this is what has 
happened. And while I was on the losing end of the Supreme 
Court decision, I wasn't the only one that lost. Millions of 
other Federal, State and local government employees also lost.
    They lost their right to protection against retaliation for 
reporting instances of misconduct, fraud, corruption, and abuse 
that they witnessed within the course and scope of their 
employment. But they also lost their right to perform their 
jobs as citizens. We have a genuine interest in ensuring that 
their government operates competently, efficiently, and within 
the law.
    In my case, I suffered acts of retaliation simply because I 
was doing my job. As a deputy district attorney in Los Angeles, 
I was empowered to prosecute individuals who are charged with 
crimes. I am often called upon to seek the imprisonment of 
persons charged with those crimes. Because of this power, I am 
constitutionally obligated to abide by certain rules of law, 
evidence, and ethics.
    My job is not to win every case or to secure a conviction 
in every case. My job is to do justice. My job requires that 
only legally obtained evidence be used in the prosecution.
    In the case before the Supreme Court, I discovered that 
several deputy sheriffs had fabricated evidence, evidence which 
formed the basis for probable cause for the issuance of a 
search warrant. After I conducted my investigation, confirmed 
my investigation with several colleagues in my office and 
conferring with my supervisors, I prepared a memorandum 
recommending that the case against the defendants be dismissed 
because of this constitutional rights violation.
    I was further motivated by the then-developing LAPD rampant 
corruption scandal in which several rogue LAPD officers were 
accused of planting evidence, falsifying police reports, 
testifying falsely in court, and, in one case, shooting an 
unarmed man in the back.
    However, unfortunately, my supervisors at the behest of the 
sheriff's department, who were concerned of a civil lawsuit 
being filed against them by the defendants, demanded the case 
proceed and be prosecuted despite my protests. It was shortly 
thereafter that I began to suffer acts of retaliation by my 
employer, from change in job assignments, to change in job 
location, to the loss of a promotion.
    And now according to the Supreme Court, government 
employers are no longer constitutionally prohibited by the 
first amendment's prohibition against punishing their employees 
for speaking out on matters of public concern as long as the 
disclosure was made pursuant to their job duties.
    The first amendment protection will only be afforded if the 
employee goes outside and holds essentially a press conference 
on the front steps of a government building. This is a 
predicament that is as perverse as it is illogical.
    But government employees' action will have another option, 
an option that I'm fearful that most will now take, and that is 
the option to keep quiet, to look the other way, to feign 
ignorance of the corruption, the waste, the fraud that they 
witnessed. And if this occurs, it is not only the employee that 
loses, it is the public that will lose.
    The public will lose their right to know what their 
government is doing. The public will lose their right to know 
what their government officials, their elected officials, are 
doing; whether their taxpayer money is being spent wisely and 
appropriately or whether it is being wasted; whether their 
government officials are engaged in corruption or fraud.
    This Supreme Court ruling fosters, even encourages, an 
atmosphere of secrecy in the halls of government, which runs 
counter to our Nation's open form of government. It protects 
the corrupt, it protects the lazy, it protects the incompetent. 
It does not protect--and, to a certain extent, punishing the 
honest, the hardworking, the diligent government employees.
    Mr. Chairman, members of the committee, I urge you to take 
a leadership role to amend the Whistleblower Protection Act to 
include protections for employees who disclose instances of 
abuse, corruption, and misconduct that they witnessed within 
the course and scope of their job duties.
    Your actions in this matter will set forth an example, a 
positive example for States and other local governments to take 
similar actions.
    I thank you for the opportunity to speak with you today, 
and I would be happy to answer your questions.
    Chairman Tom Davis. Thank you very much.
    [The prepared statement of Mr. Ceballos follows:]
    [GRAPHIC] [TIFF OMITTED] T8966.044
    
    [GRAPHIC] [TIFF OMITTED] T8966.045
    
    [GRAPHIC] [TIFF OMITTED] T8966.046
    
    Chairman Tom Davis. Mr. Bransford.

                 STATEMENT OF WILLIAM BRANSFORD

    Mr. Bransford. Mr. Chairman, members of the committee, I 
appreciate the opportunity to testify here this afternoon 
concerning how current whistleblower protections may have been 
impacted----
    Chairman Tom Davis. I think you need----
    Mr. Bransford [continuing]. May have been impacted by the 
recent Supreme Court decision. I serve as senior counsel for 
the professional association that represents Career Senior 
Executive Service members and other senior-level Federal 
officials. SEA is pleased to offer the perspective of the 
career senior manager regarding whistleblower reform and first 
amendment protection for Federal employees. The Supreme Court's 
decision is an invitation to consider change and helps all of 
us focus on important issues.
    Members of the Career SES are uniquely situated because 
they need strong tools to manage their employees, but they also 
need protection when they observe and disclose wrongdoing. They 
themselves can be whistleblowers. But at the same time they 
need to manage others who claim to have blown the whistle. 
Hence, from our perspective, the challenge in any reform is to 
strike a balance where Federal employees are encouraged to 
report wrongdoing and are assured protection from reprisal, yet 
at the same time ensures that Federal work force managers have 
what they need.
    The classic nightmare whistleblower scenario for managers 
occurs when a difficult or vexing employee who seeks 
whistleblower status becomes so entrenched in his or her 
position that the employee refuses, in an often subtle and 
sophisticated manner, to carry out the direction of the 
supervision, thus effectively sabotaging the project that the 
whistleblower dislikes. Occasionally, an otherwise problem 
employee uses whistleblower laws in an attempt to become immune 
from reasonable supervision redirection. This too ties a 
supervisor's hands.
    On the other hand, we agree that current interpretations of 
the Federal Whistleblower Protection Act do not adequately 
defend Federal employees because of interpretations that do not 
protect whistleblowers when they make disclosures to the 
supervision, the alleged wrongdoer, when they are just doing 
their job. This is the same issue that's presented in Garcetti 
v. Ceballos and, quite frankly, it's been the rule under 
Whistleblowers Law One that I have dealt with as a practicing 
attorney. And under current law if Mr. Ceballos had been a 
Federal employee, he would not have been protected for his 
whistleblowing activity or--and, as the Supreme Court found, he 
was not protected by the first amendment.
    Last week, the Senate passed the defense authorization bill 
which included S. 494, a whistleblower reform statute that is 
very similar in many respects to H.R. 1317 passed by the--
referred out of this committee.
    Both of those statutes make significant reforms because 
they will allow any disclosure to be protected, even when made 
in the course of an employee's duties. We support that law. We 
have a couple of concerns about it. But it does three important 
things that we think helps strike the balance. In addition to 
expanding the definition of a disclosure, it also imposes a 
test that the disclosure has to be reasonably objective. It 
also says that it excludes policy disputes. And finally, it 
gives a manager who's accused of reprisal the opportunity to 
show that the personnel action would have occurred anyway.
    We think that those three additions provide balance, and we 
would support S. 494 and also H.R. 1317 in that respect.
    We do have a concern about both H.R. 1317 and S. 494 
because they seem to change the process. S. 494 would allow 
appeals to multiple circuit courts of appeals, which we think 
would add confusion to an already complex law. H.R. 1317 would 
create a new right. We think we ought to try this new change in 
the law and see if the current system of the Special Counsel 
Merit Protection Board would work better to protect 
whistleblower rights.
    We think--we would recommend and hope that this Supreme 
Court decision, which invites State legislatures and the 
Congress to enact whistleblower reform, would in fact encourage 
the consideration of these whistleblower laws, and perhaps the 
conference committee and the defense authorization bill would 
be the place to do that.
    With that, I thank you very much for the opportunity to 
testify this afternoon. I look forward to your questions.
    Chairman Tom Davis. Thank you very much.
    [The prepared statement of Mr. Bransford follows:]

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    Chairman Tom Davis. Ms. Dash. Thank you for being with us.

                     STATEMENT OF MIMI DASH

    Ms. Dash. Good afternoon, Chairman Davis and members of the 
committee.
    I come before you today as a retired educator of 30 years, 
and also my experiences as an advocate for students and 
teachers through the local association affiliated with the 
National Education Association, having served in all of those 
leadership positions.
    I am pleased to have the opportunity today to address the 
committee on the importance of employees having the right to 
speak freely on issues that they consider of great importance 
in the workplace.
    I would like to give you some examples of areas of concern 
for educators that I've been aware of and let you know that 
these are the gray areas that we find a few stumbling blocks.
    First and most important is the area of possible child 
abuse. I'll use the classroom teachers as an example, but there 
are other educational employees who are exposed to the same 
kind of conditions. As a teacher, if I were to suspect the 
possibility of child abuse, I would report my suspicions to the 
principal. It would be up to the principal to contact Child 
Protective Services. If for some reason the principal did not 
make the contact, what would my options be at that point? If I 
were to contact Child Protective Services directly, that could 
be considered insubordination. If I were to adhere to the 
policy of the county level, I would be risking the safety of 
the child.
    As an advocate for children, I would find it impossible to 
ignore the safety of the child. As a citizen, it is my right, 
and, in my opinion, my duty to protect the child. As a teacher, 
I can't imagine it is any less my right or my duty, and yet 
there appears to be a conflict.
    I cannot stress for you the severity of this dilemma. Most 
teachers would be torn by this situation. Teachers follow 
rules, and it's very difficult for them to go outside of the 
rules that are set. I cannot know what choices others would 
make, but my choice would be clear. By advocating for the 
children for whom I dedicated my life, I could have risked my 
career. I continued to work in the school as a substitute and 
on special projects. I meet with educators through the FEA in 
monthly meetings.
    Another issue that I'm hearing complaints about, with 
limited action or no action by the school system, is something 
that we are hearing about nationally; and that is the sick 
schools. We have many schools in which teachers are chronically 
ill. Some of those illnesses are quite serious.
    I serve on a committee hearing appeals for those denied 
short-term disability insurance. In one of those cases, an 
employee could have simply been allowed to transfer to a 
different location as recommended by her doctor. The school 
system refused and insisted she could return to work at the 
same location. Every time she returned to work, she became sick 
and had to go out on leave again, thus negating the terms of 
the insurance policy.
    Many educators have asked for help, and within the system 
they get what is called a clean bill of health for their 
schools, although the illnesses continue. If teachers are 
getting sick, what about the long-term and lasting effects on 
the less highly developed bodies of the children? Going public 
on this issue could adversely affect the teachers speaking out 
about the situation, but isn't it not only their right, but 
also their duty? The expenses that would be incurred by the 
school system to correct those problems would be enormous and 
most school systems are ignoring it.
    These are only two examples, but there are probably many 
others. There could be bus safety issues, equipment issues, 
training issues and more. All of these adversely affect the 
safety of the educator and the children.
    Thank you for your time and attention to this matter and I 
hope that it can be resolved favorably.
    Chairman Tom Davis. Thank you very much.
    [The prepared statement of Ms. Dash follows:]

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    Chairman Tom Davis. Ms. Soronen.

                   STATEMENT OF LISA SORONEN

    Ms. Soronen. Good afternoon, Chairman Davis and committee 
members.
    My name is Lisa Soronen and I am a staff attorney for the 
National School Boards Association. NSBA represents the 
Nation's 95,000 school board members serving on 14,500 school 
boards who are responsible for educating 48.5 million public 
school children and who employ 6 million people.
    I am pleased to testify about the implications of Garcetti 
v. Ceballos and request that our written statement be submitted 
for the record.
    Chairman Tom Davis. Without objection.
    Ms. Soronen. NSBA filed a brief in Garcetti v. Ceballos 
because the Ninth Circuit ruling would have hampered a school 
district's ability to implement curriculum and would have 
increased meritless litigation. I would like to offer three 
lenses to view the implications of this decision: one, the 
problems that would have resulted if the Supreme Court upheld 
the Ninth Circuit; two, the many other protections available to 
school employees that limit arbitrary employment actions; and 
three, the common sense realities for public schools.
    Looking through the first lens, if the court had upheld the 
Ninth Circuit it would have made all public employees speech 
made at work on any topic of public concern into a potential 
constitutional issue. Under these circumstances, local school 
boards could ultimately lose control of their curriculum as 
teachers discuss issues of public concern that have little or 
no relevance to the curriculum, or adopt a perspective contrary 
to the one of parents and communities acting for their school 
boards that have been chosen.
    A different holding would also make it easy for a poorly 
performing public employee who is facing an adverse employment 
action depart to speech on a matter of public concern or 
manufacture such speech in order to claim that speech is the 
real reason for the adverse employment action.
    Virtually all employees at some point in their employment 
discuss matters of concern at work, particularly teachers whose 
job it is to speak. For this reason, if the court had ruled 
differently, almost every employee facing discipline or 
termination would at least have a potential first amendment 
claim. Significantly, constitutional claims give rise to 
different remedies, including attorneys fees. These remedies 
may increase the incentives to raise the stakes in employment 
disputes.
    NSBA's concerns are not theoretical. For example, in a case 
currently on appeal to the Seventh Circuit, an elementary 
school teacher expressed her personal opinions about the war in 
Iraq in a classroom discussion. After parents complained, the 
principal sent a memo asking teachers not to express their 
personal views on foreign policy in class. Starting well before 
this incident, numerous parents had complained about the 
teacher's unfair treatment of students and her poor classroom 
management skills because of these performance problems. Her 
contract was not renewed. She brought a first amendment suit 
claiming that the district terminated her because of her 
statements about the Iraq war.
    At the other end of the political spectrum,teachers in 
Michigan had threatened litigation over their supposed first 
amendment rights to teach intelligent design. Had the Supreme 
Court ruled differently in Ceballos, teachers in cases like 
these, regardless of their job performance, could express 
whatever views they had on any topic of public concern in the 
classroom, and may be able to raise first amendment obstacles 
to school district decisions.
    Although Ceballos has been portrayed almost solely as a 
whistleblower case, it should be clear that the Ninth Circuit 
ruling might have protected all speech on any matter of public 
concern made at work, including teacher classroom speech.
    Moreover, what the employee may perceive to be 
whistleblowing, the employer may perceive as the employee 
trying to substitute his or her judgment for the employer's 
judgment. Policies and implementation studies are just that, a 
matter of judgment, not matters of right versus wrong or legal 
versus illegal. The court's decision recognizes that sometimes 
public employees are just acting like other employers trying to 
get the job done. Had the Supreme Court ruled differently, more 
routine disagreements between employers and employees could 
have become constitutional matters.
    Let us look to the second lens. School employees have well-
established job security protections, including broad first 
amendment protections. Generally, all school employees are 
protected against arbitrary disciplinary actions by State 
statute, principles of due process collective bargaining 
agreements in most States, and, in the case of teachers, tenure 
loss. With all of these protections, school boards would be 
hard pressed to terminate a teacher who complains to the 
administration about a matter of public concern related to the 
teacher's official job duties. Public employees may still be 
protected by the first amendment for speech made at work that 
relates to their job as long as the speech does not relate to 
their official job duties.
    For example, in 1979 the Supreme Court held in the Gibbons' 
case that a teacher who informed the school principal that she 
thought the district employment policies and practices were 
racially discriminatory could be protected by the first 
amendment, even though her speech was made at work, even though 
it related to her job. Moreover, public employees who have 
complained about their employer and want first amendment 
protection can use public forums such as a local newspaper for 
addressing their concerns.
    And that takes me to the third lens of viewing Ceballos, 
some common sense realities for school systems. Regardless of 
whether employees bring first amendment complaints, the 
practical reality is that public employers, particularly school 
districts, are not likely to summarily fire employees for 
bringing a valid concern to the employer's attention. Public 
employers exist to serve the citizens of this country and want 
to treat employees fairly. School boards have every incentive 
not to spend their scarce resources arbitrarily punishing 
school employees who speak out rather than on educating 
children. This is especially true where public outcry is 
likely. It is even more true in a genuine whistleblower 
scenario.
    In sum, if the choice is between creating a culture that 
encourages employees to raise issues about school district 
operations internally or in creating a culture where employees 
don't come forward at all or, instead, air issues publicly, 
clearly the incentives are for public employees to make sure 
employees feel free and, in fact, feel obligated to discuss 
their concerns frankly with their employer.
    School boards can do this without the first amendment. For 
all of these reasons, NSBA supports the outcome of Ceballos in 
defining the application of this case. Thank you for this 
opportunity to testify.
    Chairman Tom Davis. Thank you very much.
    [The prepared statement of Ms. Soronen follows:]

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                   STATEMENT OF BARBARA ATKIN

    Ms. Atkin. Good afternoon, Chairman Davis and all of the 
members of House Reform Committee.
    I am Barbara Atkin, deputy general counsel of the National 
Treasury Employees Union. I thank you for the opportunity to 
testify concerning the urgent need for congressional action to 
strengthen Federal whistleblower protections in the wake of the 
Supreme Court's decision in Garcetti v. Ceballos.
    NTE participated in that litigation as an amicus. In order 
to underscore the vital interest that Federal employees have in 
freely expressing their views on matters of significant public 
concern and the compelling need of the public to hear those 
views, NTE represents career civil servants who perform 
functions critical to the public safety and homeland security 
or who play a key roll in the formulation of tax policy or the 
regulation of the financial industry. It is essential that 
these employees be protected from retaliation when they express 
their candid, well-informed views on potential threats to the 
public welfare.
    That protection must extend to internal discussions with 
their supervisors and managers, as well as to external 
disclosures to Congress, and even to the media.
    The Supreme Court, in Garcetti, has stripped disclosures 
made in the course of an employee's duties of any 
constitutional protection. This speech, however, is precisely 
the speech that is most vulnerable to suppression by political 
appointees pursuing their own agenda who are often intolerant 
of dissent. It is also the speech most critical to the public 
interest.
    NTEU calls on Congress to enact reforms to the 
Whistleblower Protection Act to protect this speech.
    The Federal circuit has held that the Whistleblower 
Protection Act does not cover disclosures by employees who are 
performing their normally assigned duties in reporting waste, 
fraud and abuse. In other words, a NASA safety director or 
engineer who spots a safety flaw threatening an imminent space 
shuttle flight and who takes the courageous step of urging his 
superiors to postpone the flight until the problem is 
corrected, to the tune of millions of dollars of added expense, 
cannot now be a protected whistleblower in the eyes of the 
Federal Circuit because his duties involve overseeing the 
shuttle's construction. Similarly, an FDA employee who prepares 
reports to Congress now has no statutory protection if she 
objects to her superior's insistence on watering down the 
science or slanting the conclusions to accommodate a 
politically driven agenda.
    Whistleblower legislation cleared by the respective House 
and Senate committees, H.R. 1317 and S. 494, would close that 
major loophole and correct other judicially imposed limitations 
as well.
    Last week, the Senate approved S. 494 as an amendment to 
the fiscal year 2007 Defense authorization bill. NTEU strongly 
urges the House to accept S. 494 in the upcoming House/Senate 
conference on the Defense authorization bill.
    The pending legislative reforms also provide some 
additional important protection to other speech left vulnerable 
by Garcetti and by the Federal Circuit; namely, disclosures 
that amount to mere so-called differences of opinion on 
debatable policy decisions. S. 494 and H.R. 1317 would protect 
disagreements over policy decisions that evidence a violation 
of law or other specific serious wrongdoing. Unfortunately, 
that leaves unprotected many internal policy disagreements over 
other key issues. An employee of FEMA, for example, who insists 
that the agency is poorly led and organized and who provides 
telling examples of misguided policies would be highly 
vulnerable to agency censorship and retaliation unless the 
employee aired his views in public. Only then would he have any 
protection, and that would arise under the fifth amendment, not 
the WPA.
    The court in Garcetti acknowledged this perverse incentive 
to go public in the first assistance, which no one believes is 
consistent with good government management. NTEU strongly 
encourages Congress to explore an option suggested by the 
Supreme Court in Garcetti, the establishment of an internal 
forum for the expression of dissenting opinions. NTEU has 
itself negotiated contractual protections for employees at the 
Food and Drug Administration and the Nuclear Regulatory 
Commission who express their personal opinions. Regulations and 
directives at those agencies also provide the right to preserve 
professional disagreements on the record. Those provisions may 
serve as a model for adoption governmentwide.
    In conclusion, I urge Congress to keep the provisions in S. 
494 in the final Defense authorization bill.
    I thank you for this opportunity to address this important 
issue on behalf of all of the members of NTEU, and I would be 
happy to answer any questions.
    [The prepared statement of Ms. Atkin follows:]

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    Chairman Tom Davis. Thank you very much.
    Mr. Bergstrom, thank you for being here.

               STATEMENT OF RICHARD J. BERGSTROM

    Mr. Bergstrom. Thank you, Chairman Davis and the other 
members of the committee, for the invitation to be here today.
    I'm a partner with the law firm of Morrison & Foerster, and 
co-chair of our Labor Employment Group. I work out of our 
office in San Diego, CA, which, as it turns out, is just a 
couple hours away from where Mr. Ceballos worked as a deputy 
district attorney.
    I'd like to make three basic points this afternoon 
concerning the Garcetti decision and its impact on Federal and 
State whistleblowing protection.
    First, we believe that, when properly read and understood, 
Garcetti represents a fairly narrow ruling which is unique to 
the facts presented to the court. As you're aware, only a first 
amendment claim was presented in the matter; there were no 
other Federal or State claims at issue before the U.S. Supreme 
Court. The issue which the Supreme Court addressed was whether 
a memorandum written by Mr. Ceballos was protected as private 
citizen speech or was written pursuant to his official duties.
    This is the key question. The Supreme Court noted, in 
addressing this question specifically, that internal complaints 
of whistleblowing could still constitute protected activity 
under the first amendment. As has been suggested in prior 
questions and answers in statements given here today, I would 
assert that the issue is not one of internal versus external. 
The court, on page 1959 of its decision, specifically indicated 
that internal whistleblower complaints would still be protected 
under the first amendment. The question is whether those 
whistleblowing activities were made pursuant to the 
individual's official job duties.
    Second, the court also noted that whistleblowing complaints 
directly relating to an individual's work could also still be 
protected under the first amendment. In the Garcetti matter, 
however, there are some unique facts. Mr. Ceballos actually 
testified under oath that it was his job, he was hired to 
investigate issues relating to whether arrest warrants were 
properly issued, and he was hired to write advisory memoranda 
as to those investigations. Based on these narrow facts, with 
the claim at issue and Mr. Ceballos' admission, the Supreme 
Court then narrowly interpreted these facts and found that the 
memorandum was not protected speech, it was not that of a 
private citizen and so the first amendment did not provide 
protection.
    The second issue is that Garcetti is consistent with prior 
Supreme Court opinions concerning whistleblower protection 
under the first amendment. Going back to 1968 in the seminal 
case of Pickering, which we've referenced earlier today, the 
Supreme Court addressed an issue relating to external 
whistleblowing. A teacher in that case issued a letter to a 
newspaper complaining about spending practices of the local 
school board. The Supreme Court in that case found that speech 
was not part of the teacher's official job duties and was 
protected. Possibly a more instructive case, given the debate 
that we've had today, is the Givhan case, which was issued 11 
years later. In that case, a teacher complained directly to the 
school board principal--purportedly her supervisor--about 
school district policy directly relating to her job, that it 
was discriminatory. The Supreme Court in that instance was 
addressing a complaint of internal whistleblowing, which was 
also job related. The Supreme Court found that this speech was 
protected. It was not part of the teacher's official job 
duties. In other words, she was not hired, as Mr. Ceballos was, 
to conduct an investigation; she was not hired, as Mr. Ceballos 
was, to write an internal memorandum, as Mr. Ceballos was and 
admitted under oath.
    It's important to note that the Supreme Court actually 
affirmed the analysis and conclusions in both Pickering and 
Givhan, and neither case, the result in neither case would be 
changed by the holding in the Garcetti case today.
    The last point I'd like to make is that there are a myriad 
of statutes and common law rights which protect whistleblowers 
which are independent from the first amendment.
    We've talked about a number of the Federal pieces of 
legislation today, but with regard to State legislation there 
are 48 States with whistleblower protection for government 
employees. There are 45 States that have adopted common law 
protection for whistleblowers. And specifically in California, 
which I think is important in this matter since that is where 
Mr. Ceballos was based, significant protections have been 
adopted as well.
    Under California Labor Code, section 1102.5, both private 
and public employees are protected from whistleblower 
activities for reporting violations of Federal and State law. 
Under California Government Code, section 53298, both city and 
county employees, such as Mr. Ceballos, again are protected 
from whistleblowing activities relating to gross mismanagement 
and abuse of authority.
    California has also adopted its own Whistleblower 
Protection Act which protects State employees. And last, there 
is a common law claim in California where an employee believes 
that he or she has been improperly demoted or terminated, the 
individual can state a claim for wrongful termination in 
violation of public policy or wrongful demotion in violation of 
public policy. Based on this network of protections, the courts 
have the ability to award compensatory, punitive and even 
criminal penalties.
    Now, none of these claims, as we've indicated, were before 
the Supreme Court, and the record is not clear as to why Mr. 
Ceballos and his counsel chose not to take advantage of these 
significant protections. However, what is clear is that the 
ruling in Garcetti is likely to have little impact on these 
laws. No. 1, Garcetti, as I pointed out, is fairly narrow and 
unique to its facts; and No. 2, the protection provided by the 
statutes is governed by the express language in the statutes 
themselves.
    Thank you very much for the opportunity to testify today.
    [The prepared statement of Mr. Bergstrom follows:]

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    The Chairman. Well, thank you very much.
    Mr. Goldberg.

                   STATEMENT OF JOE GOLDBERG

    Mr. Goldberg. Chairman Davis, Mr. Waxman, and members of 
the committee, thank you for both the opportunity to testify 
today and also for the work your committee has done and 
continues to do on the issue of whistleblower protections.
    Now, I essentially abandoned the remarks that I was going 
to make here today. I represent the American Federation of 
Government Employees, the largest Federal employee labor union. 
We represent over 200,000 employees.
    There is nothing this committee can do concerning the 
Garcetti opinion. It is a first amendment analysis which 
obviously is outside the purview of this committee's 
jurisdiction. However, the Garcetti decisionmakes obvious the 
need for statutory whistleblower protection, which is within 
the purview of this committee.
    The Whistleblower Protection Act, which we use daily at the 
American Federation of Government Employees to protect our 
employees, to that extent which they can be protected, 
essentially is a dead letter. The decisions of the U.S. Court 
of Appeals for the Federal Circuit have limited the plain 
language of the Whistleblower Protection Act to a surreal set 
of circumstances. So the Whistleblower Protection Act as to 
Federal employees essentially no longer exists. It's up to this 
committee to repair the damage done to the Whistleblower 
Protection Act by the Court of Appeals for the Federal Circuit.
    We commend the chairman and this committee for its work in 
H.R. 1317, which is attempting to repair that damage.
    Thank you very much.
    [The prepared statement of Mr. Goldberg follows:]

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    Chairman Tom Davis. Thank you very much.
    Ms. Dash, let me start with you. What is within a teacher's 
job description? Because that's central through the whole case. 
Can you--you're a veteran and a leader and a professional.
    Ms. Dash. Anything and everything that is asked of us.
    Chairman Tom Davis. So reporting abuse is clearly within 
that?
    Ms. Dash. Yes, but reporting it to the principal. It's 
limited to the supervisor.
    Chairman Tom Davis. Reporting environmental hazards would 
be obviously part of it?
    Ms. Dash. Correct.
    Chairman Tom Davis. OK.
    Ms. Dash. The problem lies with where it goes after that if 
nothing happens at the next level.
    Chairman Tom Davis. Commenting on curriculum, that would 
also be part of the duty, wouldn't it? Or would it not? Is that 
where it gets fuzzy?
    Ms. Dash. I guess it depends on how courageous you are.
    Chairman Tom Davis. You'd think they would want your input, 
right?
    Ms. Dash. You would, wouldn't you?
    Chairman Tom Davis. Ms. Soronen, let me ask you the same 
question.
    Ms. Soronen. Justice Kennedy, in writing the majority 
opinion, specifically states, we reject, however, the 
suggestion that employers can restrict employees' rights by 
creating excessively broad job descriptions.
    That I think is a specific admonishment to a lower court 
that they likewise cannot create excessively broad job 
descriptions to limit an employee's rights.
    I guess how this issue will play out will be ultimately 
determined by a lower court and the Supreme Court, if they ever 
take a case, defining what exactly an employee's job duties 
means under this case. The majority was clear, it was to be 
defined narrowly.
    I think of teachers, teaching job duties in the classroom 
are clearly a part of their official job duties. Reporting 
things like abuse and neglect, which might be the obligation of 
all school listed employees, or commenting on air quality and 
the like are probably not part of a teacher's official job 
duties. But I guess that's for the lower courts to decide. The 
Supreme Court spoke resoundingly on the fact that job 
descriptions are to be defined narrowly.
    Chairman Tom Davis. OK. Thank you. I've been summoned to 
the floor, but Mr. Issa is going to take over questioning for 
our side, and I know Ms. Watson has some questions.
    Ms. Watson. I want to thank all the panelists. And I still 
have a bit of confusion. There's been reference made to H.R. 
1317, and then reference made to Senate bill 494. Let me--I 
notice that Mr. Khon is no longer in the audience, but let me 
ask Mr. Goldberg, how would H.R. 1317 and S. 494 apply to the 
case under consideration, or the Supreme Court decision?
    Mr. Goldberg. Again, the statutory revisions contemplated 
by Congress in H.R. 1317 and S. 494 would repair the 
Whistleblower Protection Act, which essentially, as I said in 
my testimony, is a dead letter. One of the ways it would do 
this is explicitly recognize that the type of input that an 
employee can make internally would explicitly be protected. And 
when an employee such as a NASA employee on the space shuttle, 
an engineer on the space shuttle reports to a supervisor what 
he believes to be a deadly threat to health and safety, that 
explicit complaint--which is covered by that person's job 
description--would be protected activity.
    Again, perversely now, the very experts that we rely on and 
that we've hired to do the job are not protected when they 
express their professional opinion on matters of life and 
death. And H.R. 1317 and S. 494 would go a long way toward 
repairing that gaping hole in the Federal Whistleblower 
Protection Act.
    Ms. Watson. Well, my question is, was this particular case 
brought to court under the wrong provision, because it had to 
do with first amendment? If these two bills become the law, 
then they would cover Mr. Ceballos?
    Mr. Goldberg. Actually, they probably would not. What we 
have are two different methods of trying to protect 
whistleblowing, both the constitutional method, which is the 
Garcetti decision, and the statutory method. Now again, when 
the Supreme Court has spoken, as the highest court in the land, 
as to the first amendment, the scope of the first amendment, 
there's nothing this committee can do to affect that. But there 
are statutory protections that this committee certainly can 
invoke and legislate that would protect the same whistleblowing 
activity.
    So essentially you would have two different methods of 
enforcing the whistleblower protection; one, constitutional. 
Now, we have heard the limits of that in Garcetti and in 
various comments today. The second is a statutory protection, 
which was not involved in Garcetti, and that is what this 
committee can do in its amendments to the Federal Whistleblower 
Protection Act.
    Ms. Watson. Well, could Garcetti be taken back to court if 
these two passed?
    Mr. Goldberg. The short answer----
    Ms. Watson. This went up to the highest court, but it was 
an interpretation of the protection of the first amendment?
    Mr. Goldberg. That is correct. And the case has been--as I 
understand it, the case has been remanded to a lower court. As 
to the addition of a subsequent Federal law to the previous 
discipline involved in that case, that would be the ex post 
facto application of a subsequent law, which might be 
problematic.
    Ms. Watson. Mr. Bergstrom.
    Mr. Bergstrom. Ms. Watson, just to clarify, we have three 
buckets of employees seeking protection for whistleblowing 
activities; you have Federal employees, you have your State or 
local government employees, and then you have your private 
sector employees. And I think to--not to get overly bogged down 
in the legal intricacies of your question, but I think that the 
bills which are proposed would be amendments to protections 
which would apply to a Federal employee. In this instance Mr. 
Ceballos was an employee of the county of Los Angeles. So the 
easy answer to your question is no, it wouldn't have any affect 
on Mr. Ceballos.
    Ms. Watson. Well, I have a great amount of interest 
because, No. 1, I am a Representative from Los Angeles County; 
No. 2, I know of the case; and No. 3, Mr. Ceballos made 
reference to another case where under Federal law to be able to 
mediate the actions of those involved. And what I'm trying to 
get through here is where then do we address a new policy that 
would have an impact on a person in the county of Los Angeles 
or any other county in the United States? What would we have to 
do, Mr. Goldberg, to give him the protections?
    Mr. Goldberg. Again, I represent Federal employees, and 
there are certain limits to the power of the U.S. Congress to 
protect a State employee; however, as long as that employee 
could be brought under the purview of, say, the Commerce 
Clause, by passing Federal legislation, then it is possible for 
the Federal Government to effect and essentially grant 
statutory whistleblower protection rights to State employees, 
but it would be a question of federalism versus States rights.
    Ms. Watson. Let me just ask this if I might, Mr. Chair. 
Could the Federal Government then require all States to relook 
at their whistleblower laws under the situation concerning 
Garcetti?
    Mr. Goldberg. That's certainly possible. And it is also, 
again, certainly possible that the Federal Government could 
pass a law that would--the Federal law would cover the 
whistleblower protections of State and municipal government 
employees.
    Ms. Watson. That might be a direction to go in, that we 
could initiate here at the Federal level?
    Mr. Goldberg. That's correct. But again the Supreme Court 
has shown itself somewhat conversant with the limits of Federal 
power vis-a-vis purely State activities. So the Congress would 
have to be careful to indicate the interstate aspects of the 
protections that it seeks to expand to State or municipal 
employees.
    Ms. Watson. Well, what we could do--and this is to the 
Chair--is that we might want to have certain States to take a 
look at their whistleblower protections relative to the 
Garcetti decision that really addresses Federal employees. This 
case is brought to us--this is a county employee, and we're 
discussing it here under a Federal framework. And so it might 
be something that we could address by having States look at 
these laws and see if there is an application to their own 
employees.
    Mr. Goldberg. That's certainly correct. And of course 
Federal money to flow down through the States and to the 
municipalities, and that may be a method of using Federal 
authority to grant certain statutory rights that the Supreme 
Court did not feel emanated from the Constitution, but that the 
Federal Congress believes are in the best interests of the 
citizens of the United States to grant to State or municipal 
employees.
    Mr. Issa [presiding]. The gentlelady's time is up.
    Mr. Bransford, you seem to want to weigh in.
    Mr. Bransford. Yes, I wanted to address Ms. Watson's 
question.
    If S. 494 or H.R. 1317 were to pass and if Mr. Ceballos was 
a Federal employee, he would be protected, in my opinion. And 
if the Congress were to pass either version of those laws, I 
think it would serve as a good leadership example to the States 
to pass similar whistleblower protections.
    Ms. Watson. But he is not a Federal employee.
    Mr. Bransford. It wouldn't protect him, but it would 
protect Federal employees engaged in similar behavior who are 
not now protected.
    Ms. Watson. And I'm trying to get to how--we're discussing 
this case, which is local to the State of California and the 
county of Los Angeles.
    Mr. Bransford. I think it is mostly up to the State of 
California.
    Mr. Issa. The gentlelady did a great job. I would have let 
you go on longer.
    I've got just a couple of questions, and if you'd like a 
second round, we can come back until the bell rings for the 
vote.
    I think, Mr. Ceballos, I'd like to sort of set one thing 
straight. You're presently working for the county of Los 
Angeles?
    Mr. Ceballos. Yes.
    Mr. Issa. You're continuing to pursue your case?
    Mr. Ceballos. Yes.
    Mr. Issa. Although you've gone a long way, you're here 
today testifying before Congress, your own time, your own dime, 
as I understand?
    Mr. Ceballos. Correct.
    Mr. Issa. I guess the question is why? Many people in your 
situation, with your education, your talents, your capability, 
very portable, would have simply moved on. Why do you stay 
there doing the job you're doing?
    Mr. Ceballos. Well, I ask myself that question I think 
almost every day. I think simply because I know I'm doing the 
right thing. Back then I knew I was doing the right thing, and 
I continue to believe I'm doing the right thing. And I think 
it's important that public employees feel that when they are 
acting in the best interests of their employer and the public, 
that they be afforded the protection to act in that best 
interest. And even though there is nothing that this panel can 
do that will change what has already occurred to me or change 
this decision, if it helps future government employees then I 
will do everything I can to help in that regard.
    Mr. Issa. Well, sir, often in Washington we quote this, you 
know, where do I go to get my reputation back. You don't have 
that problem. Your reputation is intact inspite of all the 
trials and tribulations that you've gone through. So I would 
certainly--this committee supports and continues to promote the 
ability of people to break through the bureaucracy and report 
wrongdoing for the benefit of all the people of the United 
States. So I commend you for staying with it. Like I said, I 
had to ask why you did it. As a Californian, we're both 
Californians, you know, I applaud that you are staying on the 
job. Now I'm San Diego. And if you ever decide to move to 
another county, you know, we could use some good people.
    Sorry, my ranking member here and I constantly try to 
figure out whether in fact Los Angeles--San Diego is what Los 
Angeles was when people went there.
    I do have one more sort of critical question. Why did you 
decide to raise this as a first amendment claim rather than a 
claim under statutory whistleblowers? That, to a great extent, 
is what elevated you to the Supreme Court.
    Mr. Ceballos. Right. I think at the time myself and my 
lawyers felt that the first amendment provided us with the 
means and the protections to address our grievances and pursue 
our remedies. At the time we did not believe that the 
California law--which is, frankly, better than most other 
States--provided the means and the protection. And it's still 
not clear if it does that.
    Mr. Issa. Well, let me explore a slightly different line 
that probably broadens the question a little bit. As we look at 
conferencing our legislation and trying to have the best--and 
particularly for Mr. Goldberg--it is unlikely that this 
Congress is going to try to reach down and usurp all States 
rights on the whistleblower. It hasn't been a tendency and I 
don't think it should be. I don't think the ranking gentlelady 
would think that we should preempt because when you start 
preempting, you never know when it will end. However, so many 
actions in States do involve moneys of the Federal Government 
and in effect on Federal moneys being spent.
    Would you say that a narrowly crafted statute that would 
apply Federal whistleblowers, if that specific action had a 
direct link to the prosecution of Federal dollars--and I'll 
just give you an example so that at least we can work in that 
rhetorical sense. If, for example, a law enforcement officer, 
State law enforcement officer like yourself or a policeman were 
prosecuting using Federal dollars on a State case--let's say 
gang violence--and that in fact it was going to lead to a waste 
of those dollars, do you think it would be appropriate for us 
to include that in our legislation such that the Federal 
interest would occur in the sense that a State whistleblower 
would be in fact effectively reporting the loss of Federal 
dollars or the misspending of specifically Federal dollars? If 
that link can be made, do you think that would be appropriate 
and effective in helping to bring some common denominator that 
other States may choose to follow?
    Mr. Goldberg. Certainly that could be an approach. I would 
not recommend--I don't think my organization would recommend a 
preemption of State law, but--as we have the 50 States as a 
laboratory--but certainly the Federal law could provide a floor 
and an independent cause of action regardless of an individual 
State's law, especially if it involved Federal dollars. But 
preemption of State law, I understand, is probably not at the 
forefront of this committee's intent at this time, but it's not 
required either and we're not suggesting it.
    Mr. Issa. OK. One final question, and I'd like to make sure 
the gentlelady has time before we trot to our vote.
    Mr. Bergstrom, in light of the Supreme Court decision, how 
would you advise a client to pursue a similar claim today? In 
other words, same facts, Supreme Court decision there, what 
remedies would you choose based on what's available, and then 
you can hypothecate whether some of this becomes law.
    Briefly, so the gentlelady gets her question.
    Mr. Bergstrom. Absolutely. I will just be direct and to the 
point. It would depend, of course, on which category the 
employee falls into, because as we've discussed, the framework 
of laws that protect whistleblower activities depend on whether 
you're Federal, State or private sector. Assuming that you are 
a California State public sector employee, you could take 
advantage of California Labor Code, section 1102.5, which 
protects both private and public sector employees for reporting 
violations of Federal or State law. That claim in and of itself 
also specifically protects reports that are made by a 
government employee internally to his or her supervisor, which 
is one of the suggestions that was made earlier today.
    So I would suggest that, as to California, it's well on its 
way, as many other States are, with adequate whistleblower 
protections. California also has its own independent 
Whistleblower Protection Act, which protects State employees, 
and then it has a separate procedure which protects city and 
county employees under Government Code, section 53298.
    And last, the employee certainly, if they were demoted, as 
Mr. Ceballos has asserted that he was, or if they were 
terminated, as some employees assert that they are, in response 
to making a whistleblower complaint, then they would have a 
common law claim for wrongful termination or wrongful demotion 
in violation of public policy.
    Mr. Issa. Now as a San Diego non-lawyer to a San Diego 
lawyer, you didn't mention the fact that when Mr. Ceballos 
protected or attempted to protect somebody from an 
incarceration when in fact they should not have been 
incarcerated, in his opinion, he was protecting somebody from a 
wrongful imprisonment, from a denial of federally protected 
civil rights. Would you consider that in fact in this case, 
because it was law enforcement trying to prevent a wrongful 
breach of somebody's federally protected civil rights--we have 
a right not to be wrongfully imprisoned-- that had any merit 
that would have brought it to the Supreme Court with a 
different outcome?
    Mr. Bergstrom. That may be a question better asked to Mr. 
Ceballos' counsel at the time. Honestly it is not an issue that 
I had considered previously.
    Mr. Issa. Thank you.
    The gentlelady.
    Ms. Watson. Thank you very much, Mr. Chairman.
    I just wanted to say to Mr. Ceballos, it was courageous of 
you to come here, and I commend you, because what we would like 
to have is more honesty in government. And I'm very familiar 
with the case that you reference. We watched it very closely. 
It wasn't in my district, but at one time it was in my school 
district--I was on the school board then. I was very interested 
in the comments of the two people representing educational 
organizations. And I would say to you, I think it's been 
remanded down to another court.
    Mr. Ceballo. Ninth Circuit.
    Ms. Watson. What are you seeking? What kind of relief and 
remedy are you seeking?
    Mr. Ceballos. I think we're waiting to hear from the Ninth 
Circuit to see what they want us to do.
    Ms. Watson. If you will leave your card here with the 
staff, I would appreciate it. I'd like to get in touch with you 
privately.
    Mr. Ceballos. I will.
    Ms. Watson. Thank you very much, panelists.
    Mr. Issa. And I would like to thank, once again, all the 
panelists.
    The record will stay open for 5 legislative days so that 
you may include additional extraneous materials. And if you 
don't mind, if there are any questions from people who were not 
able to be here, they'll be submitted to you in writing. And 
with that, we stand adjourned.
    [Whereupon, at 2:17 p.m., the committee was adjourned.]
    [The prepared statement of Hon. Jon C. Porter and 
additional information submitted for the hearing record 
follow:]

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