On May 30, the Supremes declared that public employees have no constitutional protection against retaliation for what they might say or write in the course of their job duties. The 5-4 decision came in the case of a Los Angeles prosecutor who'd been transferred and denied promotion after writing a memo disagreeing with his bosses' efforts to pursue a criminal case based on a flawed search warrant. Writing for the majority, Justice Anthony Kennedy held that statements made by public employees "pursuant to their official duties" don't have the same free-speech guarantees as statements they might make as citizens.
"It's a terrible decision," says Denver civil liberties attorney David Lane, who's embroiled in several First Amendment cases. "The bottom line is, if the terms of your job require you to do something that looks like whistleblowing, then you don't have First Amendment protection."
Six days before the ruling, Lane had filed a case in Denver's federal court on behalf of Lisa Rohrbough, a nurse who claims she was fired by University Hospital because she made numerous reports about improper procedures and substandard care, including an alleged coverup of a violation of heart-transplant rules. The plaintiff is married to Brian Rohrbough, father of Columbine victim Daniel Rohrbough, and the couple has been among the most active of the Columbine families in waging legal battles with Jefferson County authorities over what really happened before, during and after the 1999 shootings at the high school ("Anatomy of a Cover-up," September 30, 2004).
Lisa Rohrbough worked at University Hospital for almost twelve years before she was fired in 2004. In 1999 she moved from intensive care to transplant operations. After the move, she continued to receive strong performance evaluations, she claims -- until she started to express her concerns about short staffing, poor patient outcomes and a doctor's decision to transplant a heart designated for a "Status 1" patient into another patient.
This last incident occurred in the fall of 2002, Rohrbough's suit alleges. Status 1 patients are those considered to be facing death if they don't receive an immediate transplant. According to federal regulations administered by the United Network for Organ Sharing (UNOS), an available organ goes to a Status 2 patient (a less-urgent transplant case) only if no Status 1 match is available. But Rohrbough claims authorities at the hospital decided to use the heart for a less critical patient without proper clearance and then misrepresented the circumstances to UNOS.
Such maneuvers, if they can be proven in court, are serious violations of transplant policy. Three months ago, UNOS declared St. Vincent Medical Center in Los Angeles a "member not in good standing" after a similar switch involving a liver transplant bypassed fifty higher-priority candidates and revealed a widespread practice of falsifying the relevant paperwork. University of Colorado officials have declined to comment on Rohrbough's allegations. But UNOS sanctions would be a serious blow to CU's reputation in medicine, which has already suffered from an exodus of top researchers during the Health Sciences Center's move to a new campus at Fitzsimons ("Throwing Fitz," September 2, 2004).
Rohrbough took her concerns to hospital president Dennis Brimhall and to UNOS. A risk-management director instructed her to write "occurrence reports" documenting inadequate testing or followup of transplant patients. The reports and her other whistleblowing activities became the basis for her supervisors to fire her for creating a "hostile work environment," she claims.
Lane acknowledges that the Supreme Court decision could neutralize Rohrbough's ability to claim First Amendment rights for her report-writing. By Kennedy's logic, the reports are part of her job and have no constitutional protection. "But what isn't thrown out, and what is the crux of the case, is her protesting this transplant fraud," Lane says. "She called UNOS and blew the whistle, and that's nowhere in her job description. She was acting as a citizen at that point. And if you're acting as a citizen, you have First Amendment protection."
Lane says the high court ruling will simply encourage government agencies to produce "wildly broad" job descriptions in an effort to muzzle whistleblowers. "They'll now include a statement that if you ever detect fraud, you're required to report it," he says. "And when you blow the whistle and you're fired for it, you've got no First Amendment protection."
There are, of course, other protections against retaliation for whistleblowers besides the First Amendment, including a range of state and federal statutes. But as the dissenting justices in last week's opinion note, those laws aren't as strong as the Constitution. "They're meaningless, really," Lane says. "They put very severe constraints on when and how you have to do your reporting."
Last week's decision should have no effect on another of Lane's celebrated retaliation-for-free-speech cases. That case also involves the University of Colorado -- and a certain loudmouthed Boulder professor named Ward Churchill. "The majority carves out of this case the notion of academic freedom," Lane notes. "So the Churchill case isn't affected at all."
