Wednesday, January 13, 2016

Better whistleblower protection laws can end the “Code of Silence”

Lou Reiter is a former Deputy Chief of Police for Los Angeles. He recently spoke with NPR about the effects of the Code of Silence – in which police refuse to testify about wrongdoing by other police -- on the police force and its perception by the public.

NPR’s journalist, Renee Montagne, asked Reiter, “Recognizing it as a problem is a good start, and fixing it is, of course, an ideal. But specifically, how do you make that happen? Do you have an example of another police force that has done this?” Reiter answered, “You know, I really don't.”

I do. A “Code of Silence” is just a way of rationalizing retaliation against a whistleblower. Some law enforcement officers believe they have a bond with one another that arises from an implicit promise not to get other officers in trouble. That is, not to report their wrongdoing. In agencies where managers uphold the Code of Silence, officers with integrity can find their careers stunted, their duties curtailed and their work subject to close supervision.

Reiter is correct in saying that, “retaliation is real. It’s sinister. It normally hurts an officer so badly that he or she cannot stay with the agency anymore.” The case of Frank Serpico reveals how corrupt police officers can expose a whistleblower to violence just by failing to provide the normal backup officers depend on. Serpico’s case is well portrayed by Al Pacino in the famous 1973 film of the same name.

Since the Code of Silence is a form of retaliation against whistleblowers, the answer is to provide effective remedies to potential whistleblowers. Most federal law enforcement officers are covered by the Whistleblower Protection Act (WPA). (The WPA does not cover legislative agencies, uniformed military or Commissioned officers of NOAA or the Public Health Service, and USPS; the FBI has a separate, weaker, whistleblower protection.)

In 2012, Congress passed the Whistleblower Protection Enhancement Act (WPEA), which significantly strengthened WPA protections for federal employees, including most law enforcement officers. The WPA has no time limit for a whistleblower’s initial complaint to the Office of Special Counsel (OSC). (Although there are time limits for subsequent case processing.)

Our office has represented numerous federal law enforcement officers who reported misconduct by coworkers or superiors.

The complaint process can take longer than one would like. OSC and the MSPB are both clogged with more cases than they are funded to handle. Eventually, federal whistleblowers are entitled to a hearing to prove that their protected disclosures contributed to any adverse personnel action. If they prevail, they are entitled to equitable and compensatory remedies (with no cap).

For state and local law enforcement officers, the picture is more complicated. The First and Fourteenth Amendments guarantee state and local employees freedom to speak on matters of public concern and remedies against superiors who abuse their authority by interfering with this right.

In a controversial 2006 case, however, the Supreme Court said that the First Amendment does not protect disclosures that public employees make as part of their official duties. Garcetti v. Ceballos, 547 U.S. 410 (2006). In Garcetti, the Supreme Court initially heard the case with Justice O’Connor, but did not issue a decision before she retired. The Court then took the unusual step of rehearing the case with newly appointed Justice Alito. He cast the deciding vote to deny protection to an assistant prosecutor who reported an officer’s perjury to a court.

In Garcetti, the Court did give directions to those who believe Ceballos should have been protected. “The dictates of sound judgment are reinforced by the powerful network of legislative enactments—such as whistle-blower protection laws and labor codes—available to those who seek to expose wrongdoing,” the majority said. The Court was apparently unaware of the weaknesses and gaping holes in our web of whistleblower protections.

Many states have whistleblower protection laws, including California, Colorado and New Jersey . Some do not. In thirteen states, the  Law Enforcement Officers’ Bill of Rights (LEOBR) protects officers accused of misconduct, rather than the whistleblower. Maryland’s General Assembly may consider repealing its LEOBR law this year.

Many public employees have other protections. Those that belong to unions are likely to be protected from any discharge that is without “just cause.” Similarly, many state and local governments have civil service laws that promise continued employment during good behavior.

In sum, legal protections for law enforcement whistleblowers are uneven. The hole created by Garcetti in our web of whistleblower protections could be filled if Congress would pass a comprehensive whistleblower protection law to cover all American workers whenever they report any wrongdoing. With better whistleblower protections, better enforcement of our whistleblower protections, and time, we can end the Code of Silence.


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