U.S. District Court Judge James Boasberg ruled today (PDF) that union representatives, along with union leaders, can be protected in bringing First Amendment claims against alleged whistleblower retaliation.
The ruling extends a protection previously afforded to union leaders speaking out to other union representatives.
The purported whistleblower in the underlying case is a Metropolitan Police Department detective, William Hawkins. Hawkins was disciplined for speaking critically of a police department initiative in a July 2009 Washington Post article. In suing the city alleging violations of the D.C. Whistleblower Protection Act and his First Amendment rights, Hawkins is claiming (PDF), among other things, that he was speaking as a union representative, even though the article didn’t identify him as such.
In a written opinion released this afternoon, Boasberg dismissed the claims brought under the whistleblower law, stating that the law’s protections are designed to protect speech made to supervisors or a public body; in this case, Hawkins was disciplined for talking to a newspaper reporter, which would not be considered protected.
Boasberg noted, however, that the city has since revised its whistleblower law to cover speech made “to any person.” He wrote that the claim would still fail if the law was applied retroactively because Hawkins was not blowing the whistle on previously unknown information, but was rather commenting on a topic that was already controversial and being publicly discussed.
In affirming Hawkins’ right to pursue his First Amendment claim, Boasberg wrote that while Hawkins wasn’t identified in the Post article as a union representative, at this stage of the litigation his claim that such was the case was enough to survive the motion to dismiss.
The city has disputed (PDF) Hawkins’ argument that he was talking on behalf of the union, claiming instead that he was speaking in his official capacity as a police detective about his work. But Boasberg wrote that those arguments would be resolved at a later stage of the case.
“These factors may make Hawkins’s ultimate triumph difficult, but on a motion to dismiss, it is enough that Hawkins has pled with some plausibility and specificity that he was acting as a union representative when he gave the interview,” Boasberg wrote.
A representative for the city attorney general’s office and the police department could not immediately be reached for comment. Hawkins’ attorney, Anthony Conti of Baltimore’s Conti Fenn & Lawrence, also could not immediately be reached for comment.
In a written statement, police union head Kristopher Baumann said that the ruling “is an important, but small, step forward in creating a system that encourages transparency and honest conversations.”
“Unfortunately, only police officers protected by a union can avail themselves of that freedom,” he said.