April 23, 2007

Loss for Whistle Blowers

When the U.S. Supreme Court considered a case last year over the free speech rights of public employees, some academics watched nervously. The case involved a dispute in the Los Angeles district attorney’s office, but faculty groups worried that any limits on public employees’ free speech might restrict their freedoms.

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In the end, the Supreme Court voted 5-4 to significantly narrow the First Amendment protections of public employees, ruling that “when public employees make statements pursuant to their official duties, the employees are not speaking as citizens for First Amendment purposes, and the Constitution does not insulate their communications from employer discipline.” The decision stated that it was not a statement about public college professors’ teaching and scholarship — although the dissent expressed fears that the ruling could affect public higher education.

On Friday, a federal appeals court applied the ruling in precisely the way some free speech advocates feared — but the decision came not in a professor’s case, but in a suit by a lawyer who lost a job as a vice president at Miami Dade College. A three-judge panel of the U.S. Court of Appeals for the 11th Circuit ruled that Adis M. Vila could not bring a suit against Eduardo J. Padrón, president at Miami Dade.

Vila’s suit charged that Padrón’s treatment amounted to retaliation for her whistle blowing, and was a violation of her First Amendment rights. But in its ruling, citing last year’s Supreme Court ruling among other cases, the appeals court said that Vila’s statements to Padrón about various issues at Miami Dade were not covered by the First Amendment because she spoke only to college officials, as opposed to speaking out in public.

Several experts on higher education law said that the ruling could create serious problems for college lawyers and other administrators who have to regularly risk offending their bosses by pointing out legal or ethical vulnerabilities at their institutions. “The determination in effect says ‘don’t be a pain and if you are, you can be fired,’ ” said Sheldon E. Steinbach, a lawyer in the higher education practice at the Washington firm Dow Lohnes.

Vila served at Miami Dade as vice president for external affairs, a position in which she was in charge of college units dealing with legal issues, government relations, grants and various other areas. During 2002 and 2003, the period when she worked at the college and reported to Padrón, she had a series of conflicts with the president and others in which she believed she was performing a whistle-blowing function, saving the college from future legal problems.

Among the areas where the appeals court said she pointed out problems: the awarding of a no-bid contract to an advertising company in apparent violation of state law and then a draft of a board agenda that might have incorrectly implied that a request for proposals had been used; the hiring of an outside lawyer at rates that were too high and in which the lawyer may have had a conflict of interest; the transfer of funds from one account to another to purchase a building with “private funds” when the money’s original source was a bond vote by taxpapers; and a plan to use college funds to finance the illustration of the poetry book of the daughter of a college trustee.

The appeals court ruling did not comment specifically on these college decisions, but reviewed them only in the context of the factual history of Vila’s actions while she was employed at the college. E-mails and phone messages to various Miami Dade officials asking for comment both on the ruling (which favored the college) and the policies Vila objected to were not returned. Padrón has been praised by many for his role in promoting growth at the college, which added four-year programs and dropped “Community” from its name under his leadership. But Padrón has also clashed with faculty groups and was rebuked by the American Association of University Professors for abolishing the system of shared governance after the faculty voted to unionize.

Michael Olivas, director of the Institute for Higher Education Law and Governance at the University of Houston Law Center, said that he was concerned about the ruling because it backed a president who “dismissed this lawyer for her doing a good job.”

“College counsel are in a unique position to be whipsawed when their boards or superiors engage in dubious behavior, as news reports strongly indicate have happened here,” Olivas said. He said that Florida should bring in a neutral fact finder to go over the situation, as well as the concerns raised by Vila about decisions and contracts “which have the smell of week-old fish to them.”

Steinbach — who in his current position and his previous work at the American Council on Education is in constant contact with college lawyers — said that the decision could undercut those at public institutions.

“The role of the college attorney is to keep the college out of trouble — and that includes senior administrators,” he said. “In that capacity, one is constantly pointing out deficiencies covering the entire campus.” For both college lawyers and other would-be whistle blowers, “this could have a dramatically chilling impact on the desire of people to report unlawful and unethical behavior and that could leave the schools vulnerable to suit by others.”

As for Vila, she said via e-mail that she was disappointed by the ruling. She noted that in a dissent to last year’s Supreme Court ruling, Justice John Paul Stevens “predicted this would result in
retaliation for speech that reveals simply what supervisors would rather not have made public.”

Added Vila: “The appellate decision in my case mirrors exactly what Justice Stevens and the other dissenters feared would happen — namely, it appears to leave a public employee responsibly bringing concerns to the attention of her superiors and colleagues internally constitutionally unprotected for her efforts at trying to be a good citizen and a faithful steward of the public trust.... Unfortunately, as Justice Stevens highlights, those who value public integrity and have the courage to raise legitimate public concerns in a responsible way about possible public wrongdoing on the job cannot depend on the First Amendment.”

— Scott Jaschik

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