Looks like active Indiana blogger and attorney, Paul Ogden, suffered a set back from the 7th Circuit in the case of Odgen v. Atterholt (pdf).
In the course of his employment as manager of the title insurance division at the Indiana Department of Insurance, Mr. Ogden wrote a memo laying out criticisms of Chief Deputy Commissioner Carol Mihalik who had oversight of the the title insurance division by virtue of her responsibilities with the Consumer Protection Unit of which the division was part. The memo was submitted to James Atterholt, the director of the Department of Insurance and requested that the title insurance division be removed from the Consumer Protection Unit. Shortly thereafter Atterholt gave Mr. Ogden a choice between resigning or being terminated. A lawsuit followed.
The complaint apparently had a lot of state law claims as well as a federal claim that being forced out based on a whistle-blowing memo was a free speech violation. The district court and the 7th Circuit disagreed, holding that because this speech was in the course of government employment, the government as employer could terminate the employment without committing a First Amendment violation.
The federal claims having been resolved, the state law claims have been remanded to a state court.
We didn’t expect to win the free speech issue. I dont think we found a single a single case where the 7th Circuit has ruled for an employee on free speech post-Garcetti. The Garcetti rule is that if the speech is part of your job, then it’s not protected. If you have a duty to report something, then if you do, you’re not protected. It doesn’t make much sense but that’s Garcetti.
Much of my speech had nothing to do with my job – it had to do with other divisions of the Department of Insurnace where I was not a manager. Still though the Garcetti free speech analysis seems result driven. It seems like the facts are given a spin that supports a particular conclusion. That to me, having worked at the Indiana Court of Appeals, is weighing facts. The state system though has a different summary judgment standard. We probably reversed 50% of the summary judgments granted when I worked at the Court.
We were boxed in though, having to take the appeal because Magistrate Jane Magnus-Stinson wrote an opinion which, if you read closely, certainly appeared to dismiss the state due process claim which was based entirely on state law. (As additional proof that she did that, she even denied our summary judgment motion which was based entirely on state law. If she didn’t decide state due process, why not leave that issue to the state court?)
Judge Magnus-Stinson said she was dismissing all federal claims AND state law claims that depend on federal law. That was the problem. She proceeded to write several pages discussing my due process claim in which she said that in order to have the protection of state law providing due process to non-merit employees, I had to have a 14th Amendment property interest in my job. In other words, my state law due process rights were dependent on federal law. She even blasted us in her opinion for my never talking about having a property interest in the job.
The reason we never mentioned property interest in my job in our briefs at any level is because I didn’t have a property interest in my job …and I wasn’t making a federal due process claim. It was totally a state law due process claim. JMS is absolutely wrong – states can always give you more rights than what the federal government does. That’s exactly what the state did with the enactment of Executive Order 05-14 and the state rules giving non-merit employees with six months experience due process before a negative employment action. Those employees would NOT have a right to due process under the 14th Amendment, but they do have due process rights under state law. She never addressed the merits of the state due process…just merely said I couldn’t make a state due process claim because I didn’t have a 14th Amendment property interest in my job.
As a side note, despite pointing out numerous times that I wasn’t claiming that I had a property interest in my mob, the AG’s office continually argued that I didn’t have a 14th Amendment property interest in my job. Well, duh. I don’t need a property interest in my job to be protected by EO 05-14 and state personnel rules. It’s like the AG’s office just regurgitates legal arguments in old briefs without bothering to make them applicable to the facts at hand.
The state whistleblowing law claim remains alive, and thanks to the 7th Circuit, so does the state due process claim. Unfotunately the 7th Circuit got a little loose in its language and started talking interchangeably about “whistleblowing” and free speech. Those are two totally different standards. Whistleblowing relates to a state law protecting state employees and has lower standard that required for free speeech, especially post-Garcetti. For example, you can whistleblow about things directly related to your job that would be covered by the whistleblowing statute, but would not be protected speech under Free Speech Garcetti analysis.
When I first read the JMS opinion I thought she was just dismissing the federal claims. Then when I read it again and much closer I realized she was dismissing the state due process claim because of her belief I couldn’t make it without a 14th Amendment foundation. (At that point, we had no choice but to appearl.) At the oral argument the AG tried to have it both ways. First, they conceded to the 7th Circuit that my state due process was not decided by JMS (I don’t think the AG’s office wanted to adopt JMS’s flawed legal conclusion that state due process depended on a 14th Amendment foundation.) Then the DAG told Judge Tinder at teh 7th Circuit that they may still argue at the state level that JMS opinion disposed of the state due process claim. Hopefully the 7th Circuit opinion will put a stop to that disingenous strategy.
I am not sure the 7th Circuit fully realized that JMS opinion had actually decided the state due process claim. Regardless, it’s a moot point as the 7th Cirucit says it is still alive.
I feel for you Paul — I have read on your blog about your termination from DOI and it was similar to my termination from DWD. I am lucky enough to have merit laws and am still currently fighting those folks through that process. DWD canned six of my friends and I at once, and we are trying to ensure they regret every last bit of their decision through legal means. And it all started because they did not like my friends and I (especially me) criticizing them for having a corrupt, nepotistic, incompetent and one of the seriously worst-run state unemployment programs in the country.
Keep up the good fight and good luck — this state needs more whistleblowers, regardless of party, to expose problems and corruption in our state government.
Especially as a former administrative law judge for DWD, I hope any firing for criticisms of its management stops. Like Louis says, Indiana needs MORE whistleblowers. I hope you continue your crusades, Paul, with fervor.
Thanks for the kind comments, Louis and MCB. The problem supervisor at the DOI who was causing all the problems and doing the illegal stuff was fired by Carol Cutter her first day on the job of the new Commissioner.. Cutter knew the things I said in my memo were 100% correct. If it were just the DOI, I’d probably have my job back today.
Quite honestly at this point,, the problem is the Attorney General’s Office is driving the litigation bus, not the Department of Insurance. There are some people over there who have a real vendetta against me. Awhile back I published a story on my blog in which I referred to how a DAG lied about evidence I had provided to their office, falsely told the federal court my ex-client was subject of a federal grand jury investigation for “wiretapping” and that my client’s recording of her termination hearing was needed for that. She proceeded to obtain and and published a subpoena for the recording to take it out of her office’s hands when the federal court ordered her to give it back to my client. The FBI got the recording and was wondering why in the heck it was being sent to them since there was no grand jury investigation. They did find out thout the recording of the meeting had been erased. What was immediately before and after the 1 1/2 meeting was intact. Just the meeting had been erased.
What that DAG did was at best unethical, very probably illegal. Neither Steve Carter nor Greg Zoeller investigated the matter. After she pulled this stunt, you know what happened? She got promoted, almost doubling her salary. She is now a high-level supervisor at the AG’s office.
Oh, my client was also a whistleblower pointing out ghost employment in the Lake County Prosecutor’s Office. You should have seen the number of attorneys the AG’s office turned on my client and how they bombared her (me) with abusive discovery. You would have thought she accused the AG himself of misconduct given how they handled the case. Did the AG’s office once ask any questions about the ghost employment evidnece my client offered? Nope. Like my whistleblowing case, the AG’s office wasn’t interested in the illegal activity of the public official. They were interested in going after the whistleblower.
So, the new superintendent of public instruction had no authority to fire all those doe employees who fit : Executive Order 05-14 and the state rules giving non-merit employees with six months experience due process before a negative employment action: ?????
We were just told we were no longer needed and were terminated that day. Most of us had more than 5 years of experience. Or is it because, when it is convenient, the doe is not a state agency and the employees are not state employees? Did mitch and tony break the law?