The last thing Colleen Bradley thought she would be doing at this point in her life was preparing a writ of certiorari to the U.S. Supreme Court. But that’s exactly what she’s doing and there is a lot at stake. If the U.S. Supreme Court allows the Third Circuit Court ruling in her case to stand, First Amendment rights at work and whistleblower protections for nearly 30 million public employees will be dramatically narrowed. For the public, that means cutting off one of the primary means through which we learn of government corruption.
In 2014, Bradley, the former Director of Budget and Financial Planning at West Chester University in Pennsylvania, was fired for exposing deceptive – if not fraudulent – budgeting practices at WCU and across the entire Pennsylvania State System of Higher Education [see our exclusive interview with Colleen Bradley here]. One of her lawyers, Dan Kearney of Adams Kearney Law in Ridley Park, PA, said that he and his co-counsel in the case – Ed Mazurek of Mazurek Law Firm in Philadelphia – were optimistic about Bradley’s case from the beginning.
We thought that the case was really unusual in the sense that Colleen had done a very good job of documenting what had transpired here. So, in assessing the case we had a very optimistic view of how the courts would view her case primarily because we weren’t dealing with a “he-said, she-said” sort of situation. We had a black and white paper trail of emails other correspondence, in memorandums, which really set forth in a very clear way factually what had happened here.
In ruling on a Motion for Summary Judgment filed by a defendant in the case, the U.S. District Court for the Eastern District of Pennsylvania found that Bradley’s First Amendment rights had indeed been violated. However, that Court granted the defendant’s motion, which would foreclose Bradley’s right to present her case to a jury, and ruled that the case could not proceed because PASSHE and administrators named in the suit had “qualified immunity.” “Qualified immunity,” “shields public officials from damages for civil liability so long as they did not violate an individual’s ‘clearly established’ statutory or constitutional rights,” according to FindLaw.
Kearney and Mazurek appealed the grant of summary judgement to the U.S. Third Circuit Court of Appeals, challenging the ruling of qualified immunity. They argued that Bradley’s First Amendment Constitutional rights had indeed been clearly established under prior decisions. On motions for summary judgement, “the court is obligated to give all factual inferences to the ‘non-movant’ party, which, in this case, is Colleen,” according to Kearney. On motions of summary judgement, “that means, in a legal sense, that we’re just trying to get the case to a jury.”
Then the unexpected happened. Where the lower Court had found Ms. Bradley’s speech was entitled to protection, but granted summary judgment based on its view that those rights had not been clearly established (which shielded defendants with qualified immunity), the Third Circuit Court found Bradley’s speech was not entitled to First Amendment protection at all. The Third Circuit Court quoted the 2006 Supreme Court case Garcetti v. Ceballos, which held that
“When public employees make statements pursuant to their official duties, the employees are not speaking as citizens for First Amendment purposes” and that, therefore, “the Constitution does not insulate their communications from employer discipline.”
Before the Garcetti decision, First Amendment rights of whistleblowers were judged based upon a 1968 Supreme Court decision in Pickering v. Board of Education. Paul M. Secunda, Professor of Law and Director, Labor and Employment Law Program at Marquette University, described the Pickering decision this way:
In an 8-1 decision, written by Justice Thurgood Marshall, the U.S. Supreme Court held that Pickering had a First Amendment right to free speech that could not be forfeited because of the “best interests” of the school district. Although Justice Marshall recognized that the government’s relationship to individuals was necessarily different in the employment context, he nevertheless firmly stated that public employees have constitutional rights, including rights to free speech.
In any such dispute between a public school teacher and the school board, a court must balance the conflicting interests of the parties. Justice Marshall described the balance this way: “The problem in any case is to arrive at a balance between the interests of the [public employee], as citizen, in commenting upon matters of public concern and the interest of the State, as an employer, in promoting the efficiency of the public services it performs through its employees.”
The Garcetti ruling significantly narrowed the First Amendment rights of employees, according to Kearney, by adding an additional question to the Pickering balancing test: “was the employee speaking within the ordinary course of their duties or responsibilities?” At the time, “it was definitely viewed as a blow to the rights of whistleblowers,” Kearney explained.
Kearney and Mazurek felt confident about Bradley’s case from a Garcetti standpoint
primarily because this is the counterpoint to Garcetti in the sense that not only was Colleen not asked to speak out on the issue that she spoke about, she was directed not to speak out against it almost to the point where her supervisor might say she was insubordinate in speaking out and exposing these misrepresentations and this fraud.
In a unanimous 2014 decision in Lane v. Franks, the Supreme Court found that public employees are granted First Amendment protection in some circumstances when speaking about government corruption, even if they gained knowledge of the corruption as part of their official job positions. The decision tempered and clarified aspects of the Garcetti ruling. In the Lane decision, according to Kearney, “the Court found that giving public testimony about work related matters was not within an employee’s ordinary duties and therefore entitled to First Amendment protection.”
In the Lane case, Edward Lane, a director of a youth program at Central Alabama Community College was fired in retaliation for testifying against another former employee in two criminal inquires. A lower court found, following Garcetti, that Lane did not have First Amendment protection because he testified about things that he learned as part of his employment at the community college. This time, however, the U.S. Supreme Court disagreed. Heidi Kitrosser, writing in Supreme Court Review, explains further.
The Court rejected the lower court’s view that, because the testimony consisted of information that Lane had learned in the course of performing his job, his employer should be free to sanction him for his speech. The lower court’s approach, the Supreme Court explained, is in tension with one of the core reasons that it accords public employees some First Amendment protection. That is, “speech by public employees on subject matter related to their employment holds special value precisely because those employees gain knowledge of matters of public concern through their employment” [emphasis added].
The Court explained that because of their unique role, public employees are entitled to the highest level of First Amendment protection when it comes to exposing government corruption. In addition, a 2014 decision in Dougherty v. School District of Philadelphia – another Third Circuit case – a public employee who blew the whistle by going to the Philadelphia Inquirer with charges of corruption, was granted First Amendment protection by the court.
Given the Lane and Dougherty decisions, Kearney and Mazurek believe that Bradley’s case presents an opportunity to further clarify First Amendment protections in the workplace.
We view this as an opportunity to add further clarification to Garcetti. Garcetti did not lay out a framework for how to decide whether the employee is speaking within their job duties. That’s going to be a question of fact that and there are a million different factual circumstances that are going to come up in that context. What’s significant about Colleen’s case for whistleblowers is that her speech was made in the least disruptive way, taking it up the chain of command, taking it outside of the chain of command internally but not running to the press right away. This is an opportunity for the Court to give more instruction. In this case, even though Colleen is speaking to a committee within her workplace, there’s First Amendment protection. Why? Because she’s not speaking within her ordinary job duties.
The Third Circuit Court of Appeals did not see things this way, however. In their January 26, 2018 ruling, the Third Circuit seemed to want to rollback or restrict First Amendment protections for public employees and even further narrow First Amendment protections for whistleblowers.
In Colleen Bradley’s case, she exposed fraudulent budget practices to a non-budgetary committee who had influence within the University. The committee was made up of administrators who were independent of the sphere of administrators with which Bradley normally worked. She had hoped that exposing the fraud she uncovered to that broader constituency, she could help bring an end to the fraud. In sworn depositions, Bradley’s boss, Mark Mixner, explicitly stated that when Bradley chose to expose the fraud to that university committee, she was not doing so as part of her normal job duties. Because of that, the U.S. District Court for the Eastern District of Pennsylvania ruled that her First Amendment rights had, indeed, been violated. According to Kearney, the U.S. District Court was able to distinguish between the content of Bradley’s job – i.e. that she worked with budgets – from the actions she took to expose the fraud. Exposing fraud was not within her normal duties as Director of Budget and Financial Planning.
The Third Circuit, by contrast, refused to make a distinction, relying upon an interpretation – their own, novel interpretation I would argue – of Colleen Bradley’s job description that contradicts her boss’s sworn testimony about what was and what was not part of her normal job duties. This may seem like a fine point, but the implications are enormous. Those implications include depriving the public, including taxpayers, voters and other citizens of the special value speech highlighted by the Court in Lane that can bring to light impropriety and corruption by government officials.
Colleen Bradley is now preparing a writ of certiorari to the U.S. Supreme Court. Kearney and Mazurek say they are hopeful that the U.S. Supreme Court will be interested in hearing the case because there are important splits in the U.S. Circuit Courts regarding the scope and application of the Garcetti decision – specifically how one determines the line between when a public employee is speaking as a citizen and when she is speaking within her assigned job duties. The Third Circuit makes direct reference to this split in their decision in the Bradley case, stating:
Some courts have predicted that bypassing a government bureaucracy’s normal pecking order would be outside a public employee’s ordinary job responsibilities. This Court, however, has not done so, and need not do so in this case.
Here’s the Third Circuit is referring to the case Dahlia v. Rodriquez, in which the Ninth Circuit Court of Appeals found that “when a public employee communicates with individuals or entities outside of his [sic.] chain of command, it is unlikely that he is speaking pursuant to his duties.” Under Dahlia, Colleen Bradley would be much more likely to have First Amendment protections for her actions exposing budget fraud at West Chester University and PASSHE. But because she lives in Pennsylvania, her rights are limited by the Third Circuit decision. This kind of differential application of the law – citizens having more Constitutional protections in one part of the country as opposed to another – makes the case a strong contender to get a hearing before the U.S. Supreme Court. However, as Kearney and Mazurek told me, the Court only hears a small percentage of cases, so there are no guarantees.
If the Third Circuit Court of Appeals decision is allowed to stand, we will be witnessing a double tragedy. First, no one who was responsible for manipulating and falsifying budgets at West Chester University and PASSHE will be held accountable for their actions. Indeed, our reporting on a recent financial analysis of Kutztown University’s financial situation – the “Bunsis Report” – shows that the deceptive budgeting practices identified by Colleen Bradley continue unabated. And PASSHE administrators continue to use deceptive budgeting to justify the elimination of academic programs, significantly increase student tuition and fees, and fire faculty and staff. All the while expanding the ranks of administration.
The second, national tragedy would be that we will see a further narrowing of our First Amendment rights in the workplace. The “special value speech” of public sector workers will be devalued and our ability to ferret out government corruption will be further limited. The fact that this is happening at a time of unparalleled corruption at the very highest offices in our government only adds insult to injury.
Colleen Bradley is well aware of what it takes to do the right thing, even when there are significant personal costs. Not only was she fired from her job, but her health has suffered as a result of the experience. One of the reasons she decided to file a First Amendment suit in this case is that she doesn’t want other whistleblowers to face what she had to face.
“When you think about actually trying to do the right thing if my case doesn’t go further and I don’t have protection, your affecting 30 million government workers,” she explained to me. “I thought, ‘My, gosh, how many people get put in this kind of position and have no protection’?”
And, it comes down to the kind of examples we set for and the impacts of our decisions have on future generations. “For the sake of my kids and my children’s kids and everybody else, it is about doing the right thing,” she said. “And, if I didn’t do the right thing, how do I ever live with myself?”
Colleen Bradley will submit her writ of certiorari to the U.S. Supreme Court in the upcoming weeks. We will not know if the Court decides to hear her case for at least several months after that. In the meantime, we will continue to help tell her story. Stay tuned.