How A Public Corruption Scandal Became A Fight Over Free Speech
NPR News
April 28, 2014
Monday the Supreme Court hears the case concerning what kind of speech is protected for public employees.
The current conservative Supreme Court majority has a well-earned reputation for protecting the First Amendment right to free speech, whether in the form of campaign spending or protests at military funerals.
But in one area — the first amendment rights of public employees — the conservative majority has been far less protective of the right to speak out. Now the court is revisiting the issue, and the result could have far-reaching consequences for public corruption investigations.
Edward Lane was fired because he testified truthfully that an Alabama state legislator was a no-show employee, being paid by the taxpayers for no work.
He was hired in 2006 to head a program for juvenile offenders, providing counseling and education as an alternative to incarceration. The program was run out of Central Alabama Community College and received substantial federal funds.
After he was hired, Lane conducted an audit and learned that one of the program's best paid employees, a state representative named Suzanne Schmitz, was not showing up for work. After Schmitz refused to change her ways, Lane had what he describes as an "ugly" meeting with the state legislator.
"She began to tell me who she was, and did I know who she was for real," said Lane.
Lane says that people in his office warned him not to tangle with Schmitz because of her influence, but, as he puts it, "To me, it's like being president of the bank. If I know one of my tellers is stealing from the bank, and I allow it to go on, I'm complicit."
And so he fired Schmitz.
About that time, the FBI came calling, Lane says. The bureau was conducting an investigation of public corruption in Alabama and subpoenaed Lane to testify first before the grand jury, and later at Schmitz's two trials. She was subsequently convicted in federal court of fraudulently obtaining $177,000 in public funds.
Lane, however, was not rewarded for his conduct. He was fired just before the community college was to request additional money from the state Legislature for the program he headed.
"I was the only one who was terminated," Lane said. "And to me, it made it look like I had done something wrong. You know, I was the one who was doing what was right."
And so he sued, contending that he was fired in retaliation for his testimony and that such retaliation violates the First Amendment guarantee of free speech.
While the Supreme Court in 1968 extended to public employees protection for statements made as a matter of public concern, the court has since narrowly defined what constitutes a matter of public concern.
In 2006, the court upheld disciplinary actions against a Los Angeles deputy district attorney after he testified in a trial that an affidavit to obtain a critical search warrant was false. By a 5-to-4 vote, the conservative Supreme Court majority ruled that the First Amendment offers no protection for speech that public employees engage in "pursuant to their official duties."
The court said that a public employee's speech is only protected when he speaks as a citizen on a matter of public concern, not as an employee.
In Edward Lane's case, the federal court of appeals based in Atlanta ruled that Lane was not protected because he was testifying about information he had learned as an employee.
Lane appealed to the Supreme Court. Monday his lawyers will argue that public employees have a duty to testify truthfully when subpoenaed, and that the First Amendment protects public employees from retaliation for performing that duty. If there is no such protection, say Lane's lawyers, employees who know about fraud, waste and abuse in government will be afraid to come forward, and public corruption will thrive.
A decision in the case is expected by summer.
Showing posts with label subpoenas. Show all posts
Showing posts with label subpoenas. Show all posts
Monday, April 28, 2014
Wednesday, April 9, 2014
Christie Aides Don’t Have to Turn Over Bridge Scandal Documents, Judge Rules
A judge appointed by a Republican says emails of public officials must be kept out of investigation.
Christie Aides Don’t Have to Turn Over Bridge Scandal Documents, Judge Rules
By KATE ZERNIKE
APRIL 9, 2014
NYT Now
In a major setback to the legislative investigation into the George Washington Bridge lane closings scandal, a New Jersey judge ruled on Wednesday that two of Gov. Chris Christie’s former aides do not have to comply with subpoenas seeking emails and other communications about the closings and attempts to cover them up.
In the ruling, Judge Mary C. Jacobson of State Superior Court in Mercer County criticized the subpoenas as “a fishing expedition” by the State Legislature, controlled by Democrats, which is investigating why Mr. Christie’s allies closed two access lanes at the bridge in September — and what the governor, a Republican, knew.
Judge Jacobson agreed with lawyers for the two aides, Bridget Anne Kelly and Bill Stepien, saying the subpoenas “clearly violate” federal and state protections against self-incrimination and unlawful search and seizure. She disagreed with lawyers for the legislative panel who had argued that Ms. Kelly and Mr. Stepien were required, as public employees, to turn over their records.
“The fundamental problem with the subpoenas is that they are overbroad,” she wrote.
Judge Jacobson left open the possibility that the Legislature could compel the aides to testify by offering them immunity from prosecution. But that could significantly tie the hands of the United States attorney who is conducting a separate inquiry into the closings and allegations that emerged in the wake of the scandal — about misuse of Hurricane Sandy funds and the politicization of the Port Authority of New York and New Jersey, which runs the bridge.
The court’s decision is likely to renew calls, among even Democrats in the Legislature, to shut down the investigation and defer to the United States attorney, Paul J. Fishman.
Judge Jacobson, who was appointed by a Republican governor, Christie Whitman, is widely praised for her evenhandedness, and ruled against Mr. Christie last summer in a case that established a right to same-sex marriage in New Jersey. But in this case, she was harsh on the investigators in the Legislature, repeatedly emphasizing that the subpoenas had overreached.
“A blanket subpoena calling for a fishing expedition without the promise of immunity calls for a blanket response,” she wrote.
Ms. Kelly, a former deputy chief of staff to Mr. Christie, sent an email calling for “some traffic problems in Fort Lee,” the town at the end of the bridge that was gridlocked for four days as a result of the closed lanes. Mr. Stepien held the job before her, and managed Mr. Christie’s campaigns for governor.
The bipartisan investigative committee was formed in January after legislators learned that Ms. Kelly and the governor’s allies at the Port Authority had worked to shut down the lanes soon after the mayor of Fort Lee declined to endorse Mr. Christie for re-election.
Republicans have criticized the investigation as a partisan witch hunt against the governor, whose overwhelming re-election victory last year had put him among the expected leading candidates for the Republican presidential nomination in 2016.
In recent weeks, Democrats have begun to worry they are overplaying their hand against a weakened governor — and trying the patience of taxpayers, who are paying Mr. Christie’s lawyers ($650 an hour) as well as the special legislative counsel ($350 an hour).
Mr. Christie’s popularity has dropped significantly since the scandal. He has told allies that he can rebuild his national prospects by isolating the bridge scandal as the work of rogue aides.
State Assemblyman John Wisniewski, a Democrat who is co-chairman of the legislative committee, said on Wednesday that he was confident the committee could continue its work despite the judge’s ruling.
“There is more than one method for the committee to pursue the information that it seeks,” he said. “We’re going to continue to explore all those resources to get to the fundamental question of why Bridget Kelly sent the email she did and who authorized her and how this abuse of power could have happened in the first place.”
Kevin Marino, a lawyer for Mr. Stepien, said the judge’s ruling was “a complete vindication of Bill Stepien” and called into question Mr. Christie’s decision to sever ties with him.
Ms. Kelly’s lawyer, Michael Critchley, said, “To all those naysayers who doubted our position and our desire to protect our client’s constitutional rights, I suggest Judge Jacobson’s opinion as a free tutorial on what the Fifth Amendment means.”
Christie Aides Don’t Have to Turn Over Bridge Scandal Documents, Judge Rules
By KATE ZERNIKE
APRIL 9, 2014
NYT Now
In a major setback to the legislative investigation into the George Washington Bridge lane closings scandal, a New Jersey judge ruled on Wednesday that two of Gov. Chris Christie’s former aides do not have to comply with subpoenas seeking emails and other communications about the closings and attempts to cover them up.
In the ruling, Judge Mary C. Jacobson of State Superior Court in Mercer County criticized the subpoenas as “a fishing expedition” by the State Legislature, controlled by Democrats, which is investigating why Mr. Christie’s allies closed two access lanes at the bridge in September — and what the governor, a Republican, knew.
Judge Jacobson agreed with lawyers for the two aides, Bridget Anne Kelly and Bill Stepien, saying the subpoenas “clearly violate” federal and state protections against self-incrimination and unlawful search and seizure. She disagreed with lawyers for the legislative panel who had argued that Ms. Kelly and Mr. Stepien were required, as public employees, to turn over their records.
“The fundamental problem with the subpoenas is that they are overbroad,” she wrote.
Judge Jacobson left open the possibility that the Legislature could compel the aides to testify by offering them immunity from prosecution. But that could significantly tie the hands of the United States attorney who is conducting a separate inquiry into the closings and allegations that emerged in the wake of the scandal — about misuse of Hurricane Sandy funds and the politicization of the Port Authority of New York and New Jersey, which runs the bridge.
The court’s decision is likely to renew calls, among even Democrats in the Legislature, to shut down the investigation and defer to the United States attorney, Paul J. Fishman.
Judge Jacobson, who was appointed by a Republican governor, Christie Whitman, is widely praised for her evenhandedness, and ruled against Mr. Christie last summer in a case that established a right to same-sex marriage in New Jersey. But in this case, she was harsh on the investigators in the Legislature, repeatedly emphasizing that the subpoenas had overreached.
“A blanket subpoena calling for a fishing expedition without the promise of immunity calls for a blanket response,” she wrote.
Ms. Kelly, a former deputy chief of staff to Mr. Christie, sent an email calling for “some traffic problems in Fort Lee,” the town at the end of the bridge that was gridlocked for four days as a result of the closed lanes. Mr. Stepien held the job before her, and managed Mr. Christie’s campaigns for governor.
The bipartisan investigative committee was formed in January after legislators learned that Ms. Kelly and the governor’s allies at the Port Authority had worked to shut down the lanes soon after the mayor of Fort Lee declined to endorse Mr. Christie for re-election.
Republicans have criticized the investigation as a partisan witch hunt against the governor, whose overwhelming re-election victory last year had put him among the expected leading candidates for the Republican presidential nomination in 2016.
In recent weeks, Democrats have begun to worry they are overplaying their hand against a weakened governor — and trying the patience of taxpayers, who are paying Mr. Christie’s lawyers ($650 an hour) as well as the special legislative counsel ($350 an hour).
Mr. Christie’s popularity has dropped significantly since the scandal. He has told allies that he can rebuild his national prospects by isolating the bridge scandal as the work of rogue aides.
State Assemblyman John Wisniewski, a Democrat who is co-chairman of the legislative committee, said on Wednesday that he was confident the committee could continue its work despite the judge’s ruling.
“There is more than one method for the committee to pursue the information that it seeks,” he said. “We’re going to continue to explore all those resources to get to the fundamental question of why Bridget Kelly sent the email she did and who authorized her and how this abuse of power could have happened in the first place.”
Kevin Marino, a lawyer for Mr. Stepien, said the judge’s ruling was “a complete vindication of Bill Stepien” and called into question Mr. Christie’s decision to sever ties with him.
Ms. Kelly’s lawyer, Michael Critchley, said, “To all those naysayers who doubted our position and our desire to protect our client’s constitutional rights, I suggest Judge Jacobson’s opinion as a free tutorial on what the Fifth Amendment means.”
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