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NY. Whistleblower Uncovers Fraud and NYS’ gulog fires him for speaking

April 28, 2011

In an action that it completely typical for NYS and NYC agencies, anyone speaking out against the agency or the fraud and corruption at the state level by appointed, not elected officials is immediately retaliated against and fired.

In the latest NYS Gulog account

A New York transit official sued his former employer after it fired him. He suspected corruption in the agency, he said, and when he investigated it and talked to the press about it, he was fired. He felt he had spoken about a matter of public, not private, concern, meaning that his speech was protected. The NYS MTA did not agree

 
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April 27, 2011

Were His Free Speech Rights Violated?

A New York transit official sued his former employer after it fired him. He suspected corruption in the agency, he said, and when he investigated it and talked to the press about it, he was fired. He felt he had spoken about a matter of public, not private, concern, meaning that his speech was protected. The agency did not agree.

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What happened. “Agnello” was hired by the Metropolitan Transit Authority (MTA) in December 2001 as chief security officer and deputy executive director—new positions. He had served with the New York Police Department for 35 years and soon hired into MTA the man who had been his deputy in the past. The two began a series of investigations that turned up significant corruption, initially of three contractors who were overbilling the agency, with help from two MTA employees, who were fired when the fraud came to light.

Agnello and his deputy then began trying to investigate a railroad executive who they believed was similarly in league with a greedy contractor. But in the meantime, several high-ranking officials had complained to the agency’s executive director that Agnello’s deputy was behaving offensively toward most people with whom he came in contact. For example, the New York district attorney’s office, which had agreed to take over one large investigation, complained that the deputy was investigating it, too—in competition and opposition to the DA’s office. After several more complaints, the executive director told Agnello to rein in his deputy.

But Agnello sided with his deputy. In investigating the suspected railroad executive and contractor collusion, he deliberately disobeyed the executive director. And then he told the New York Times that corruption in the agency was rampant and was putting its customers in danger. He was fired, sued, and lost his case in federal district court. He appealed to the 2nd Circuit, which covers Connecticut, New York, and Vermont.

What the court said.

Whether speech is of public or private concern is now done governed by a Supreme Court ruling, Garcetti v. Ceballos, in 2006. It narrowed the free-speech protections of public employees, saying that if complaints are made in the course of an employee’s job, they are not protected, even if they might involve public concerns. Judges said that even Agnello’s comments to the Times, which was outside his chain of command, were potentially so disruptive to the agency that firing him was justified. Anemone v. MTA, U.S. Court of Appeals for the 2nd Circuit, No. 08-2646-cv (2011).

The Supreme Court really needs to get a job in government and find out how corrupt it really is.  The Court should have left the law at a balancing test where there was leeway to rule that a public employee was acting as a private citizen by exposing corruption.  Now the Supreme Court simply reinforced government power at the expense of the people which has a silencing effect on all public whistleblowers.

http://hr.blr.com/HR-news/Performance-Termination/Employee-Termination-with-Discharge/Were-His-Free-Speech-Rights-Violated/

In a telephone interview with the San Francisco Chronicle Ceballos said “it puts your average government employee in one heck of a predicament … I think government employees will be more inclined to keep quiet.”[11]

At the blog Balkinization, guest writer Marty Lederman had an extensive review of the decision, followed by a general analysis by blog owner Jack Balkin.

The outcry among whistle-blower advocates and First Amendment advocates was particularly extensive. Whistleblower lawyer Stephen M. Kohn called the ruling “the single biggest setback for whistleblowers in the courts in the past 25 years.” Under the ruling, Kohn says, public employees—all 22 million of them—have no First Amendment rights when they are acting in an official capacity, and in many cases are not protected against retaliation. Kohn estimates that “no less than 90 percent of all whistleblowers will lose their cases on the basis of this decision

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