PADM 700 Public Administration Ethics, Statesmanship, & Governance 3

Chad B. Newswander is assistant

professor in the Department of Political

Science at the University of South Dakota.

His research focuses on administrative

statesmanship, administrative law, admin-

istrative ethics, power and politics, and

constitutional governance.

E-mail: [email protected]

126 Public Administration Review • January | February 2015

Public Administration Review,

Vol. 75, Iss. 1, pp. 126–134. © 2014 by

The American Society for Public Administration.

DOI: 10.1111/puar.12293.

action resulted in another round of reprisal—his weekly days off were moved to Friday and Saturday instead of Saturday and Sunday.

Stemming from these retaliatory responses, Dill charged that his First Amendment rights had been violated. Th e free speech clause granted him both power to subvert his superiors’ wishes and protection from the ensuing retaliation. Th e Tenth Circuit Court of Appeals accepted Dill’s claim, arguing that his state- ments amounted to a matter of public concern. His actions in expressing these sentiments were not found to impede the ability of the district attorney’s offi ce or the police department to properly function, and no managerial harm was substantiated. As a result, Dill’s opposition to the direct recommendations of his bosses was vindicated.

Th is type of dissent, as described by Rosemary O’Leary, involves “the actions taken by career public servants who work against the wishes—either implic- itly or explicitly communicated—of their superiors” (2014, xi). Even though guerrilla government is

Abstract: According to judicial precedents, administrators informed by their expertise can speak on issues of public concern under First Amendment protections. In one sense, they could dissent by working against their employers in an attempt to direct issues of public concern through an educational function. Th e power to act like a statesman in raising such issues allows administrators to lead from behind and in front, as long as certain judicial thresholds are met. However, the U.S. Supreme Court recently moved to tighten the scope of such activity. Th is article assesses how an ethic of dissent has been translated into a constitutional perspective that at fi rst was moderately constrained and later became very restricted. While the move to limit an ethic of dissent provides necessary constraints, it also may have weakened administrators’ ability to perform necessary statesmanship acts rooted in guerrilla government to achieve the common good.

Practitioner Points • Employees must accept that their initial title or role is that of a citizen. • As citizens, administrators have the power to speak out, occasionally even following an ethic of dissent in

order to resist and reveal employer mandates. • Because the Supreme Court has granted employees with First Amendment protections, civil servants must

be aware of the nuances and protections granted to them. • Th e ability to speak out allows administrators to have the opportunity to elevate their vision and act like a

guerrilla statesman in educating the public about the common good.

Guerrilla Statesmanship: Constitutionalizing an Ethic of Dissent

Chad B. Newswander University of South Dakota

Jimmy Ray Slaughter was the prime suspect in a double homicide, accused of killing his daughter and her mother in their Oklahoma home.

Witnesses confi rmed that Slaughter was present near the residence during the time of the murders, which was further corroborated by the autopsy. Even with this evidence, Detective Dennis Dill of the Edmond Police Department had an alternative theory of the crime. He rejected the evidence that pointed to Slaughter and raised his theory about the crime to his superiors, who explicitly told him “not to pursue it further because it might ‘muddy the water’” (Dill v. City of Edmond Oklahoma, 155 F. 3d 1193, 1200 [10th Cir. 1998]). Dill, however, did not comply with this command.

His fi rst act of insubordination was his refusal to be cajoled into writing a police report that contained what he perceived to be false information. Th is failure to comply resulted in his demotion to patrol offi cer. His next act of defi ance was to write a letter to the chief of police regarding “exculpatory evidence” that the district attorney’s offi ce needed to possess. Th is

Guerrilla Statesmanship: Constitutionalizing an Ethic of Dissent 127

Tracing this development, this article addresses the theoretical and constitutional underpinnings of allowing public servants to perform miniature acts of guerrilla statesmanship in directing the ship of state by asserting their speech rights in contesting the wishes of their superiors. In order to ensure that action is done in a cogent and constitutional manner, administrators must exercise their agency carefully. By analyzing a proper way to execute discretionary respon- sibilities, this article fi rst theoretically examines how one can assume the role of a statesman by performing acts of guerrilla government. It then proceeds to assess how guerrilla activity was translated into a constitutional perspective that was fi rst moderately constrained and later became very restricted. Th e move to tighten the constitu- tional permissibility of working against one’s superiors has limited the ability of civil servants to act out in order to preserve managerial effi ciencies, but it also may have weakened their ability to perform necessary guerrilla statesmanship acts to achieve the public good.

Theoretical Underpinnings of Guerrilla Government in a U.S. Context Because the U.S. system is a government of law and men, adminis- trative discretion must be confi ned, structured, and checked (Davis 1969). However, discretion must also be granted a fair amount of agency that allows civil servants to be pragmatic and experiential in implementing public tasks (Wamsley 1990). Th e delegation of agential action gives administrators a sense of authority and responsibility. For Gary Wamsley, this makes them “special citizen[s]” (1990, 117). Th is does not mean they have a “special status or privileges” but “special skills and responsibilities” (Wamsley 1990, 117). Th is level of agency informed by expertise and duty also provides them political character.

Th is administrative power at the individual level is compounded by the expression of agency through bureaucracies, organizations, and institutions, or what Wamsley calls normatively the “Agency” (1990, 117). In this regard, public agencies have the capacity to be stewards over the creation of such an ethos as they forge their own autonomy (Carpenter 2001; Terry 2003). Th ey often accomplish this through diff erentiation, capacity, and legitimacy (Carpenter 2001) or through institutional, legal, and managerial means (Terry 2003). Th e achievement of these conditions provides agencies the means to “alter the preferences of the public” (Carpenter 2001, 354, 355). As

a result of these formative conditions, agencies become polities that use their discretion to “allocate values and to generate purposes and commitment” (Hult and Walcott 1990, 24).

Th e autonomous attributes of administrators and agencies establish the political character of the civil servant and of the civil service. Although administrators are granted agency

to achieve public ends, Charles Goodsell off ers a stark reminder about the limitations of such discretion: “Bureaucracy was initially installed in the world’s fi rst modern republics as a tool to carry out the public needs identifi ed by the people’s representatives” (2004, 130). Close review of what the law is designed to do should shape administrative action in a careful and circumscribed manner. In fact, Brian Cook (1996) notes that this ministerial obligation to carry out public duties in an instrumental fashion is still a core compo- nent of administrative life. Although both Goodsell and Cook see a tremendous amount of value in this dimension of administration,

recognized as part of the intricacies of administration, legitimiz- ing such a discretionary act poses a risk to administrative integrity (Dobel 1999; Lewis and Gilman 2005; Menzel 2005). Because of the gravity of such behavior, O’Leary acknowledges that justifying the rightness or wrongness of guerrilla action is “the most important lens through which to view guerrilla government, even though it is perhaps the most diffi cult to think about in a concrete fashion” (2014, 16). In confronting this problem, she appropriates Dwight Waldo’s 12-point map of ethical obligations, which includes but is not limited to professional norms, bureaucratic expectations, per- sonal convictions, the law, and constitutional protections.

Although each of these points off ers a method for considering the ethical soundness of guerrilla activities, the constitutional point off ers a sense of legitimacy and direction in making appropriate decisions (Lee 2004; Morgan et al. 2010; Newbold 2010; Potter 2012; Rohr 1986; Rosenbloom 2000). Th e ability to justify guerrilla action on grounds that refl ect back to regime values strengthens the viability of proper dissent. In particular, reliance on judicial reason- ing aids administrators in prudently weighing how constitutional considerations can be applied in practice (Rohr 1998; Spicer 2010). However, this form of reasoning must not be isolated from other administrative concerns, especially managerial ones. Because of this, Daniel Feldman (2015) recommends fi nding a balance between constitutional concerns and managerial necessities. Weighing such priorities establishes certain opportunities and constraints that legitimizes administrative discretion in a constitutional regime.

Relating this tension to the First Amendment, the U.S. Supreme Court has affi rmed that administrative speech, such as Dill’s com- ments in the Slaughter case, can be sanctioned and secured by the U.S. Constitution as long as administrators satisfy certain judicial thresholds. According to the precedent established in Pickering v. Board of Education (391 U.S. 563 [1968]) and Connick v. Myers (461 U.S. 138 [1983]), administrators are constitutionally permitted and protected in making statements that could undermine the com- mands of their direct superiors. However, this type of speech is only allowable under certain circumstances. Namely, such speech must address a public concern and satisfy a balancing test that weighs an employee’s rights against an employer’s managerial responsibilities. By taking this route, the Court essentially constitutionalized and gave meaning to a specifi c type of guerrilla government activ- ity by providing administrators with a guide for how to speak out safely. In doing so, administrators could perform statesmanship acts or direct “matters to promote the public interest” (Ceaser 2007, 267). Th e power to act like a statesman in raising issues of public concern potentially allowed administrators to lead both from behind and in front. Th ey could share in the governing process in a very broad manner by educating from within and outside their agencies. However, recent Supreme Court decisions, most notably in Garcetti v. Ceballos (547 U.S. 410 [2006]), have drastically altered this for- mula and challenged the scope of permissible constitutional guerrilla government activity. Still, the Court allowed citizens informed by their administrative expertise to assume a bold role and educate the people while rejecting the ability of administrators to draw upon First Amendment protections when performing their offi cial duties.

Th e power to act like a states- man in raising issues of public

concern potentially allowed administrators to lead both from behind and in front.

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128 Public Administration Review • January | February 2015

the regime level. Th is is problematic because guerrilla activity occurs at the street level in a more day-to-day fashion (Lipsky 2010).

Although pursuing such models of statesmanship is important, Richard Green (1998) off ers a tempered route that applies to more routine matters in administrative aff airs. Statesmen do not necessar- ily have to perform bold acts that are transformative in nature; they also perform small acts that are educational in nature. Th is range of action fi ts in with James Ceaser’s statesman (2007), Gary Wamsley’s agential administrator (1990), and Herbert Storing’s statesman- ship perspective (Bessette 1995), all of which tie statesmanship to education, with Ceaser going so far as to include it in his defi nition of statesmanship. A central role of the statesman is not just directing and achieving the public interest but also “educating or ennobling the public” (Ceaser 2007, 267). Th ese researchers also embrace a nonpopulist understanding of the role of a statesman; Wamsley and Storing include the administrator as part of this function. Although these perspectives often refl ect the needs of the community and citizens in a civic-minded manner, Wamsley (1990) notes that they are not bound by popular opinion. In fact, Storing argues that the populist ties to statesmanship have led to its decay. Th is is partly because “majority foolishness or tyranny” is diffi cult to check and contain in a democratic republic (Bessette 1995, 407).

Th us, Storing makes the case for the restraint of excesses in democratic leadership by call- ing for the revitalization of statesmanship. Even though constitutional masters should serve in this role, “the distinctive attributes of the national bureaucracy [qualify them] to serve the moderating function” (Morgan et al. 2010, 626). By fulfi lling the original role of the Senate, administration comes to exhibit the moderating attributes of duration, due sense of national character, expertise,

and stability (Rohr 1986). Storing refers to administrators who exhibit these traits as being “closet statesmen” (Bessette 1995, 321). However, the term “closet” refers to a certain secrecy. In many ways, some guerrilla administrators fi t this mold, as they may conduct action in opposition to their superiors anonymously. Douglas Morgan and his colleagues (2010) make the point that administra- tors are often obscure when acting in such a manner, which does not equate with conducting public business in a hidden manner. Th is type of closet statesmanship amounts to “‘leading from behind,’ taking initiatory leadership without engaging in partisan political advocacy” (Morgan et al. 2010, 626). However, there is a signifi cant diff erence between “leading from behind” and acting in secret. Th e former allows for administrators to push forward issues related to public concern. Th ey can express their statesmanship standpoint in the polity, “namely to bring to bear on public policy its distinctive view of the common good” (Bessette 1995, 322).

Th e challenge to clarify a version of the public interest requires administrators to assume an alternative role beyond a managerial function. Th is is why Green’s (1998) defi nition of an educational statesman adds an important element and modifi er to Storing’s statesmanship perspective. Green maintains Storing’s insight that administrative statesmanship is not merely a tool to be used by the public or an elected demagogue to achieve certain ends.

they are also aware of its limitations. Cook (1996) points out that the constitutive nature of administrative practice coexists with its instrumental orientation, while Goodsell adds that “bureaucracy is by no means a puppet to its master” (2004, 130). Th e latter point could also be extended to include that the administrator is not a puppet to his or her agency. At times, individual agency must coun- ter organizational Agency, especially if it fails to live up to its own normative standards.

Th e ability to push back, however, lies in undermining the ethic of neutrality (Th ompson 1985). Under this logic, administrators are required to execute stipulations without wavering. In order to make administrative ethics a viable enterprise, Dennis Th ompson (1985) shows that the expectation of neutrality prevents administrators from making moral choices. Instead, he argues, they are actually in a proper position to make such choices. Th is is because administra- tors recognize that carrying out tasks in the midst of complexity necessitates the need for discretionary authority (Goodsell 2004; Newswander and Newswander 2013; Spicer 2010). Furthermore, they must also be responsive to democratic concerns, ethical per- spectives, and regime values (Bryer 2007; Newswander, forthcom- ing; Overeem 2013; Rohr 2002; Stivers 1994).

Th is perspective, although heavily con- strained, still forges new avenues. Once civil servants consider themselves special citizens, having an active role in sustaining the regime or making ethical decisions, they may develop justifi cations to act against the wishes of their superiors. Such a function requires possession not only of political poignancy in contexts driven by organizational polities and regime considerations but also of the ability to act appropriately. According to O’Leary (2014), this is why political, organizational, and ethi- cal lenses are critical to understanding the undertaking of guerrilla activities. Each of these components provides leverage for adminis- trators to act in a manner that can be justifi ed.

Administrators have the autonomy and agency to navigate matters to achieve the common good, which leads some to act like statesmen as they pursue guerrilla activities. Th ey are then obligated to make decisions to maintain democratic decorum. Newbold (2005) asserts that these choices may involve getting one’s hands dirty for the common good. In previous research (Newswander 2012), I have argued that administrators may also choose a suspect but not morally wrong course of action, as long as their actions are narrowly tailored to achieve a compelling state interest. Both of these approaches grant administrators a robust degree of discretion in transcending and/or undermining the wishes of their superiors. In pursuing such action, they also accept the consequences of their choices, becoming what Weber (1958) terms a “suff ering servant.”

However, these approaches may limit administrators’ ability to push back in a more regular manner. Situations that require dirtying hands or making suspect choices can be rare, and these approaches to administrative statesmanship confi ne the legitimacy of guerrilla government activity to infrequent occurrences that often happen at

Once civil servants consider themselves special citizens, hav- ing an active role in sustaining the regime or making ethical decisions, they may develop

justifi cations to act against the wishes of their superiors.

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Guerrilla Statesmanship: Constitutionalizing an Ethic of Dissent 129

subordinate status requires that they execute public mandates in an expected fashion. Because of this tension between citizen responsi- bilities and employee compliance with managerial mandates, Rohr argues that the ability to bring together these dual roles “is not always easy” (2002, 118).In dealing with this confl ict, the Supreme Court has ruled in a series of cases that attempt to handle this tension. Most notably, it was able to pull these two threads together and provide the foundation for constraining such guerilla activity in Pickering v. Board of Education. Although its ruling was not seamless, the Court came up with a rudimentary test that allowed the roles of citizen and employee to exist in a mutual and reciprocal manner. It did so by establishing that Marvin Pickering’s guerrilla speech was constitu- tionally protected after his superiors fi red him for publishing a letter in the local newspaper in which he critiqued how offi cials were allo- cating public funds. Pickering decided to no longer lead from behind but to come forth and educate in a public setting.

In dealing with Pickering’s insubordinate but educational role, the Court saw value in the fact that a citizen’s right could bolster an employee’s function by disagreeing with his superiors and being a critical player in the direction of policy. Th e ability to make “statements by public offi cials on matters of public concern must be accorded First Amendment protection despite the fact that the statements are directed at their nominal superiors” (Pickering, 391 U.S. at 574). Th e Court enabled administrators to speak out on the premise that the roles of citizen and employee are closely linked. However, the right to speak out was not unqualifi ed. Th e Court reasoned that speech had to undergo a balancing test. In particular, the obligation of the employer to ensure an effi cient operation also had to be considered. Th e Court determined that administrative concerns had to be weighed against the constitutional right to speak out on matters of public importance.

Th e gravity of allowing such speech had to be balanced for both employers and employees. In dealing with the management side, the Court ruled in Mt. Healthy City Board of Education v. Doyle (429 U.S. 274, 275 [1977]) that an employer could terminate an employee involved in a constitutional dispute as long as “it would have reached the same decision” regardless of the ongoing quarrel about “protected conduct.” Th e cause of removing a public servant must be on grounds that are independent from any employee accu- sation that an employer violated his or her rights. On the employee side, the Court ruled in Givhan v. Western Line Consolidated School District (439 U.S. 410 [1979]) that private speech was protected.

Despite these clarifi cations, the Supreme Court continued the process of elaborating speech that could be deemed constitutional. Management needed to be protected from speech that usurped its authority and employ- ees needed to be protected in speaking out. Th e Court then ruled in Connick v. Myers that Assistant District Attorney Shelia Myers’s

speech was deemed inappropriate after she attempted to lead from behind. She could not use her guerrilla speech to steer managerial aff airs by creating a “mini-insurrection within the offi ce” (Connick, 461 U.S. at 141). Th e rejection of equating this type of speech with First Amendment protections was done by establishing a threshold question. Before the Pickering balancing test could be applied, an

Administrators serve as a buff er and barrier to democratic impulses, and thus they have a responsibility to educate those from within their context. Attempts to stop or make internal changes require some degree of obscurity from the public. Th e lack of notoriety allows administrators to educate, if not openly vocalize dissent, within an agency in the name of public importance without placing undue burdens on the agency from the outside. Contrarian voices such as these expose the struggles of how practices are constituted and changed (Cowell, Downe, and Morgan 2014). Th is reality also enables managers to justify these emerging realties within an organi- zation (Oldenhof, Postma, and Putters 2014). Playing such a role allows administrative guerrillas to “become creative assets to public organizations” (O’Leary 2014, 3) and ensures that institutions “will remain vital over time and not descend into an ingrown, phlegmatic bureaucracy” (Goodsell 2011, 487).

Th is educational function must also, at times, transcend internal issues within the agency. Th is is important because an internal form of dissent that is not carried into the implementation process “can be ‘eff ectively neutralized’” (Th ompson 1985, 558). Although the opportunity to express internal protest is necessary, the ability to achieve the public good often must come from without. Th ompson (1985) adds that this can involve a form of external protest while still carrying out internal duties and open or covert obstruction. Th is is why a broad understanding of administrative statesmanship cannot be limited to only leading from behind. However, statesmen should usually not act in secret when conducting their educational eff ort. Instead, they must have the courage to step from the shadows and elevate state action by discussing information openly with the public.

Although Green (1998) raises this educational dimension, he does not address the role of an ethic of dissent in terms of statesmanship acts. Th is omission raises concern, especially because administra- tors may need to incorporate elements of guerilla government to educate. In taking such action, administrators do not forgo moder- ating action but carefully pursue and perform guerrilla statesman- ship acts or direct issues of public concern by educating the public, even if that means working against their employers. To ensure that such statesmanship acts are proper, Green off ers a solution: judicial restraint rooted in constitutional ideals.

A Constitutional Underpinning for Guerrilla Activities Encouraging acts of statesmanship rooted in restraint is diffi cult, as civil servants are not merely confi ned to the role of employee. Th ey are also citizens with rights that may extend beyond organizational reach. Th is puts administrators in a unique position. According to John Rohr, “as citizens . . . they are the superiors of elected offi cials and, like all citizens, have a civic duty to see to it that elected offi cials serve the people faithfully” (2002, 118). In essence, they have rights and responsibilities to be assertive in checking their government. Th is rights-based context often requires administrators to express what is happening (Hirschman 1970). Although there is a strong expectation for administrators to be loyal or leave, they also have an ability to serve the public interest by acting against bureau- cratic tendencies (DeHart-Davis 2007). Yet these same administra- tors are also civil servants who work as employees of the state. Th is

Encouraging acts of states- manship rooted in restraint is

diffi cult, as civil servants are not merely confi ned to the role of

employee.

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130 Public Administration Review • January | February 2015

how much citizen rights and responsibilities could interfere with employee speech conducted in a workplace environment. When the Supreme Court decided whether employee speech was protected in Garcetti v. Ceballos, it ruled that “when public employees make statements pursuant to their offi cials duties, the employees are not speaking as citizens for First Amendment purposes” (Garcetti, 547 U.S. at 421). In writing for the majority, Justice Anthony Kennedy determined that the public interest is best served “when employ- ees speak as citizens on matters of public concern and to respect the needs of government employers attempting to perform their important public functions” (420). While civil servants retain the ability to speak out as citizens on matters of public concern, they no longer have the capacity to speak out on matters of public concern in relation to their work product, because managerial considerations are paramount.

Th e initial aspect of this formulation has been clear since Pickering and Connick. Th e right to speak as a citizen is not undermined because one is a public employee. Th is permits a form of adminis- trative statesmanship exercised through the role of citizen. However, even though the Court was moving in the direction of increasingly granting employers the power to regulate employee speech, it had not decided that societal interests are best served by managerial credence trumping the work product that an employer does not like. With this line of logic fi rmly established, the Court created a screening test: the role of the speaker must be determined. A citizen retained his or her ability to speak out, while an employee who is engaged with producing offi cial work content lost this right.

Th is ruling eff ectively nullifi ed guerrilla speech within an organi- zational setting in two ways. First, it established that performing offi cial duties in the form of work product strips away any citizen- ship status rooted in rights, at least in regard to free speech matters. Th is was justifi ed on the grounds of avoiding turning managerial disputes into constitutional questions. Supervisors must be given the leeway to ensure that government product is in alignment with managerial expectations. Second, internal policy measures could be developed as a way to secure unprotected speech. Building on the logic in Connick, the majority opinion suggested that an employer “encourage its employees to voice concerns privately” by either creating or retaining “the option of instituting internal policies and procedures that are receptive to employee criticism” (Garcetti, 547 U.S. at 424). However, this reasoning ran counter to common sense. A lack of protection inside the workplace would not encour- age public employees to engage with their superiors. In dissent, Stevens pointed out that “it seems perverse to fashion a new rule that provides employees with an incentive to voice their concerns publicly before talking frankly to their superiors” (427).

To provide some protection for offi cial duties while also recogniz- ing the importance of managerial control, Justice David Souter off ered an alternative modifi cation to Pickering. He argued that “an employee commenting on subjects in the course of duties should not prevail on balance unless he speaks on a matter of unusual importance and satisfi es high standards of responsibility in the way he does it” (Garcetti, 547 U.S. at 435). For further clarifi cation, a matter of unusual importance entailed “offi cial dishonesty, deliber- ately unconstitutional action, other serious wrongdoing, or threats to health and safety” (435). Only by meeting these conditions,

employee’s speech had to be deemed related to an issue of public concern. Th is guideline confi ned guerrilla speech to appropriate issues directly related to the public good—speech had to serve an educational role.1

Th e containment of guerrilla speech by creating a threshold inquiry was also occurring with the balancing test. Th e Connick ruling provided additional clarifi cation to the Pickering ruling, especially with regard to whether the person was speaking as an employee or citizen. Justice Byron White established that role matters by pointing out that it “was not accidental” that the Pickering major- ity focused so much on the fact that he was a citizen (Connick, 461 U.S. at 143). Th e effi cient operation of the state “does not require a public offi ce to be run as a roundtable for employee complaints over internal offi ce aff airs” (149). Although White conceded that agen- cies should allow administrators to lead from behind through an ethic of dissent, he argued that it is not constitutionally mandated.

Even though White favored the fact that citizens speaking out on issues of public concern would receive greater protection, he did not rule out the possibility that employee speech would never be deemed as such. In Rankin v. McPherson (483 U.S. 378 [1987]), the Court established that informal speech done in an unoffi cial capac- ity was protected under limited circumstances. Despite this move, Justice Th urgood Marshall in writing for the majority was clear that interference caused by employee speech had to overcome a “strong state interest” in maintaining an eff ective workplace. One could only lead from behind in exceptional cases by meeting a rather high standard.

Th e decision rendered in Waters v. Churchill (511 U.S. 661 [1994]) continued this trend of protecting managerial concerns. In deter- mining the content of speech, Justice Sandra Day O’Connor in her plurality opinion noted that employers only need to determine what was reasonably thought to be said. Although this requirement included a procedural component, this still placed guerrilla states- men at a disadvantage. According to Justice John Paul Stevens, this ruling “invites discipline rather than further discussion.” In essence, it challenged the scope of the didactic role of administrators by weakening the very premise that allows “deliberation within govern- ment, like deliberation about it” (Waters, 511 U.S. at 699).

O’Connor recognized this point, noting that the government must act in “good faith, rather than as a pretext” (Waters, 511 U.S. at 677). She also placed value on the educational role of administra- tive statesmanship in vocalizing issues of public concern without displacing the link between citizen rights and employee expertise established in Pickering. Administrators may act like statesmen in directing the aff airs of public enterprises. O’Connor reasoned that “government employees are often in the best position to know what ails the agencies for which they work; public debate may gain much from their informed opinions” (674). Even with this concession, O’Connor affi rmed that the managerial interests of employers must be protected. Th e Court justifi ed this on the grounds that “the government as employer indeed has far broader powers than does government as sovereign” (679).

Although these rulings clarifi ed and restricted discretionary speech, ambiguity still remained. Most notably, precedents were unclear in

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Guerrilla Statesmanship: Constitutionalizing an Ethic of Dissent 131

a protest perspective as long as the Pickering, Connick, and now Garcetti standards were met. A civil servant could steer the direction of public aff airs, even if that meant causing managerial disruption under very certain and limited circumstances. As a whole, guerrilla statesmanship is affi rmed at one level and doubted at another.

The Future of Constitutional Guerrilla Statesmanship Th e immediate aftermath of the Garcetti opinion resulted in court after court using its screening test “as a bludgeon against public employee speech,” whether it had guerrilla overtones or not (Norton 2009, 30). Appellate courts have done this by drawing on the broad language used in Garcetti to determine the role of the speaker. Specifi cally, they have analyzed the audience of employee speech and examined the responsibilities tied to a particular job (Keenan 2011). In relation to audience, the Sixth Circuit found that passing infor- mation along the chain of command was directly tied to an offi cial function and therefore was unprotected (Haynes v. City of Circleville, Ohio, 474 F. 3d 357 [2007]). A memo drafted by David Haynes that raised concerns about public safety if canine training was cut was not considered to be protected speech because his primary audience was his boss. Th e Fifth Circuit also took audience into account in Williams v. Dallas Independent School District (480 F. 3d 689 [2007]). In that case, an athletic director’s memo to a principal about the management of funds constituted unprotected speech. Th e Eleventh Circuit a year earlier used this method to determine the role of the speaker when an employee reported fi nancial aid fraud in a university setting (Battle v. Board of Regents for State of Georgia, 468 F. 3d 755 [2006]). Contact with superiors amounted to fulfi lling an employee’s offi cial duties. Th e Ninth Circuit also concluded that communications with a supervisor and reports writ- ten about “inmate sexual misconduct and documentation of the prison’s failure to respond” constituted the fulfi llment of employee responsibilities (Freitag v. Ayers, 468 F. 3d 528, 546 [2006]).

In relation to duties that correspond to work product, the Seventh Circuit found that responsibilities are a key indicator to determine the role of the speaker. It did so by linking a memo that nurse Tonya Davis wrote about ensuring a “smooth functioning of the ER and to advocate for the well-being of the patients under her care” with her job responsibilities (Davis v. Cook County, 534 F. 3d 650, 653 [2008]). Th e court recognized that penning the memo was not part of her key functions as a nurse. However, a functional analysis was too narrow; what mattered was that her speech was directly related to her responsibilities. As a result, her speech was unprotected. In perhaps the most notable and extreme example, the Eleventh Circuit upheld the decision by the president of Central Alabama Community College to fi re Edward Lane on the grounds that his speech was not tied to his role as a citizen (Lane v. Central Alabama Community College, 523 Fed. Appx. 709 [2013]). Lane learned critical details on the job that stemmed from his responsibilities and divulged them. However, his comments were made in grand jury testimony and at a criminal trial. In each setting, Lane testifi ed about his fi ring of Suzanne Schmitz, who also happened to be a state representative. Her refusal to come to work resulted in Lane’s decision to terminate her employment, even though he was told by his superiors that there could be “negative repercussions” for making such a decision. Despite the expectation to bear honest witness, the court declared that his speech was tied to his offi cial duties, and therefore his statements were unprotected.

coupled with acting in a responsible manner, could the weights balance in favor of employees performing offi cial duties of the state. Th is test permitted the nuance of matters related to public concern while also recognizing the expectations of managerial authority.

Th e notion of a matter of unusual importance was complemented by an argument that whistle-blower protection often did not broadly encompass all forms of speech that addressed “offi cial wrongdoing” (Garcetti, 547 U.S. at 440). However, the majority argued that statutory enactments in the form of whistle-blower protections were adequate; this was partly correct. Th e codifi ca- tion of whistle-blower provisions into law with the Civil Service Reform Act of 1978 and the Whistleblower Protection Act of 1989 refl ected the growing acceptance of the need to protect those that divulge unpleasant truths about government activity (Vaughn 2012). Although these acts provided certain safeguards, the way they were carried out by the Merit Systems Protection Board and interpreted by the Federal Circuit Court of Appeals often prevented whistle-blowers from receiving adequate protections (Fisher 1991; McCarthy 2012). Th is sentiment of beefi ng up and extending statu- tory safeguards has only been heightened in the past 15 years. As a result, Congress passed the Sarbanes-Oxley Act of 2002, the Dodd- Frank Wall Street Reform and Consumer Protection Act of 2010, and the Whistleblower Protection Enhancement Act of 2012. Most notably, the Whistleblower Protection Enhancement Act provided federal employees with additional protections against retaliation, enhanced procedural safeguards, and allowed for compensatory damages.

Even with these safeguards that have been granted since Garcetti, Souter’s point that protection is not consistent enough across the levels of governmental still rings true. In particular, he noted how “individuals doing the same sorts of governmental jobs and saying the same sorts of things addressed to civic concerns will get diff er- ent protection depending on the local, state, or federal jurisdictions that happened to employ them” (Garcetti, 547 U.S. at 441). Despite the fact that statutory protections are important and should not be minimized, they still did not eliminate the basis for rights, which is to off er protection against governmental acts that are arbitrary, wrong, or misguided and the power to confront such actions. In these ways, Souter recognized the full breadth of guerrilla states- manship while simultaneously narrowing its scope. In essence, the range of allowing administrative statesmanship to either lead from behind or in front was preserved under the proper circumstances. Th is allowed civil servants to retain the ability to educate from both within and without.

However, the majority opinion refused to recognize the employee as a container of rights, at least in relation to work product speech. Th is curtailment brought into sharper focus Th ompson’s (1985) consideration for civil servants who conduct dissent on an internal or external protest level.2 Employees could still vocalize dissent within an agency but could not exercise that speech regarding work product. Acting as an employee with citizenship status, an individual was now determined to be constitutionally unprotected in his or her work product speech, ensuring that he or she would have a harder time at leading from behind. Yet by acting as a citizen with special knowledge gained from public employment, an individual could legitimately act outside the organization from

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132 Public Administration Review • January | February 2015

Because Jackler did not lose his citizenship role when he became a probationary police offi cer, his offi cial work product speech was protected because there is “a clear civilian analogue” (242). Th e employee energized by citizen rights and responsibilities could be authorized in offi cial speech to act against the wishes of his or her superior, as long as there was a direct link between a specifi c citizen right and employee duty. Legitimate guerrilla activity was allowable but restrained.

Th e Ninth Circuit also made guerrilla activity allowable but without extensive constraints. It built on Garcetti’s insight about not curbing citizen speech through excessively broad job descriptions (Dahlia v. Rodriguez, 689 F. 3d 1094 [2013]). Instead of focusing on creat- ing exceptions to offi cial discourse, it recognized an employee’s job description as the vehicle to gauge whether the speech was offi cial. It established that speech that was taken outside of the chain of command, unusual speech that was not routine, or speech that was directed against one’s superior was an act of citizen behavior. Th is generous reading of Garcetti not only went beyond what any other appellate court had done but also sought to reaffi rm the importance of dissent within a workplace environment.

As a whole, each of these cases attempted to carve out a way for employees to reclaim some degree of power and protection. Th e Ninth Circuit favored a broader understanding of administrative assertiveness. However, the Ninth Circuit covered a wide range of subversive behavior without also providing a strong limiting principle. In order to justify an ethic of dissent, guerrilla activity must be more closely limited and constrained. Th is was what the Second Circuit tried to do with its civilian analogue allowance. It considered Garcetti’s concern about the damage that can be infl icted by guerrilla employees while also acknowledging certain exceptions that allow administrators to act like statesmen within the work environment. Th e Th ird and Seventh Circuit courts also saw value in speaking out, even in matters related to offi cial duties. It allowed employees to be protected regarding their testimonies in court.

Instead of tackling all of these ways to broaden aspects of Garcetti, the Supreme Court looked for a more precise way to proceed. In particular, it reviewed the Eleventh Circuit’s decision in Lane v. Central Alabama Community College regarding the removal of Lane for testimony he provided in judicial settings. In reversing the appellate court, Justice Sonia Sotomayor declared in a unanimous Supreme Court decision in Lane v. Franks (134 S. Ct. 2369, 2379 [2014]) that his speech was protected on the grounds that speech must be “ordinarily within the scope of an employee’s duties, not whether it merely concerns those duties.” Lane’s ordinary duties did not involve court testimony. Also, it was not enough that his actions were related to his offi cial activities or that he spoke about what he learned on the job. Under these circumstances, truthful testimony would amount to citizen speech, even if that information were learned on the job—this last point was critical. While Garcetti weak- ened the link between citizen speech and employee knowledge, the Lane case strengthened it. Sotomayor pointed out, “Speech by pub- lic employees on subject matter related to their employment holds special value precisely because those employees gain knowledge of matters of public concern through their employment” (2379). She added that such testimony is critical for the government to root out corruption, since it relies on the knowledge that offi cials learned in

Th e accumulation of these types of rulings signaled the intent of Garcetti, which was to weaken “the power of public employees” (Rosenbloom 2010, 472). Appellate courts determined that infor- mation passed along to one’s superiors and an expanded use of job duties resulted in an employee being unprotected within a work setting. Th is was done in part to make public management resemble private management (Roberts 2007b). Th e relegation of the role of citizen to outside the agency was designed to ensure managerial authority and mandate employee loyalty, but it may also uninten- tionally prevent the uncovering of managerial mismanagement and fraud (Roberts 2007a). Th is is a problem in following an ethos of at-will employment. Without concrete protections within the workplace, the arbitrary power of employers may prove problematic (Bowman and West 2007).

Although work product speech appeared at fi rst to have limited constitutional grounding, some appellate courts have begun to gradually fl esh out the Garcetti ruling in distinct ways that allow for constitutional dissent within the workplace. Th e Seventh Circuit did so by not taking the path of the Eleventh Circuit in regard to speech in a judicial context (Morales v. Jones, 494 F. 3d 590 [2007]). Th is fi nding came about after Detective Alfonso Morales of the Milwaukee Police Department provided depositional testimony in a civil suit against the chief of police and the deputy chief. Even though it was not part of his offi cial responsibilities to testify in civil court, his testimony was directly tied to work product speech, which is protected.

Th e Th ird Circuit affi rmed the principle behind protecting employee speech that is tied to court proceedings (Reilly v. City of Atlantic City, 532 F. 3d 216 [2008]). Like Morales, Robert Reilly of the Atlantic City Police Department claimed that he faced retali- ation from his superiors. His decision of choosing between forced retirement or demotion was an alleged result of the testimony he provided at a criminal trial. Even though the appellate court recognized that Garcetti is designed to ensure employer control over work product, this type of employment security does not trump the importance of protecting the judicial process. Th e content of court testimony, even if it is tied to one’s work duty, amounts to citizen- ship speech; “all citizens owe an independent duty to testify in court proceedings” (Reilly, 532 F. 3d at 229). Judicial integrity coincides with a citizen’s duty to provide honest testimony.

Th e Second Circuit took this line of reasoning concerning citizen rights and obligations a step further. It did so by establishing a civil- ian analogue allowance that would permit employee speech to be protected under narrow circumstances (Jackler v. Byrne, 658 F. 3d 225 [2011]). After probationary police offi cer Jason Jackler issued a police report informing his superiors of police misconduct by a fellow offi cer, he was let go. His superiors asked him to recant his report and issue a new one that was based on false information; he refused. According to the Second Circuit, this refusal was consti- tutionally permissible because “the First Amendment protects the rights of a citizen to refuse to retract a report to the police that he believes is true, to refuse to make a statement that the believes is false, and to refuse to engage in unlawful conduct by fi ling a false report with the police” (Jackler, 658 F. 3d at 241). Th ese conditions were strengthened by the fact that citizens not only have a right but also sometimes a duty “to give evidence to investigators” (239).

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Guerrilla Statesmanship: Constitutionalizing an Ethic of Dissent 133

citizen of the state. Th is makes an individual more visible and open, which discloses the role of statesmanship: directing the aff airs of the state in an educational capacity. By taking this route, the Court has constitutionalized an ethic of dissent in a very precise manner. Even though confi ning such activity to merely the status of citizen is per- haps too restrictive, it does provide strong limiting principles in the form of screenings, thresholds, and balancing tests. Th ese restraints provide administrators the chance to openly tutor and inform others on issues of public importance while also observing careful restric- tions. In this regard, they have the potential to act like guerrilla statesmen who can justify their endeavors on constitutional grounds.

Notes 1. Th e Court later refi ned the scope of the threshold inquiry, noting that public

concern amounted to “something that is a subject of legitimate news interest” (City of San Diego v. John Roe, 543 U.S. 77 [2004]).

2. Th ompson’s other two forms of dissent are also important to consider. Open obstruction can be tied to speech issues on an external or internal front, which

means that the tests laid out by the court would apply. However, it can also encompass issues beyond speech, such as refusing to use one’s expertise. Covert methods of dissent are more often tied to speech, especially in rela- tion to leaks. However, these methods are also designed to conceal the employee’s identity. Th us, Th ompson recommends some element of publicity for these covert operators. Th is reinforces the point that it is problematic for guerrilla statesman to operate in the shadows.

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their workplaces to pursue such cases. While such logic was used in justifying the Pickering balancing test, it could now be used in the Garcetti screen to determine the exact role of a speaker.

Although this ruling limited a reading of Garcetti that was overzeal- ous, it did not fully protect employees who engage in guerrilla activ- ity in order to promote the public good. It failed on this account in one very important aspect: this case did not settle whether ordinary speech done in a judicial context would amount to citizenship sta- tus. As noted by Justice Clarence Th omas in his concurring opinion, this ruling did not cover those public servants such as police offi cers who testify “in the course of [their] ordinary job responsibilities” (Lane v. Franks, 134 S. Ct. at 2384). Because there are certain jobs that require this action, Sotomayor’s example of employees who assist in corruption cases with their testimonies fell fl at to a certain extent. Even though this ruling tried to overcome the ten- sion “between the obligation to testify truthfully and the desire to avoid retaliation” (2380), it failed to totally resolve this confl ict. In essence, the power and reach of Garcetti prohibited a ruling for now that would grant employees engaging in their ordinary duties some degree of constitutional protection, even when testifying in court.

Th e general ethos established by such rulings creates an expectation that administrators will not have protection over their guerilla statesmanship acts while performing offi cial and ordinary job functions. Th us, the scope of leading from behind is narrowed, if not diminished. Although this type of statesman- ship should not be simply confl ated to an ethic of dissent, guer- rilla actions are often critical in attempting to steer issues of public interest within an organizational polity. Th ese acts do not have to be grand overtures seeking to fundamentally change a governmental entity or policy. Statesmanship acts can be small in scope, directing issues of public importance on the micro level, like fi nding justice for someone who was abused by public offi cials. Leading from behind by guiding issues of public importance is often necessary.

When the court takes such a route, the constitutional confi nes limit the scope of this type of administrative statesmanship. Th is real- ity pushes administrators to pursue legitimacy on a diff erent front when conducting offi cial business, which can include other provi- sions in the constitution, legal protection, philosophical grounding, or other points on Waldo’s map. In pursuing these later courses of action, the ability to act like a guerrilla statesman requires courage and sacrifi ce. Th e ability to speak out in order to achieve a higher purpose may require one to assume the role of suff ering servant. Administrators, at times, must be willing to be penalized, demoted, fi red, and professionally ostracized in order to promote issues of public importance.

Despite establishing a context that makes closet statesmanship vulnerable in a workplace environment, the Supreme Court does recognize that citizens may be protected when they draw on their public expertise to raise issues of public concern. In this way, a strain of guerrilla statesmanship is both privileged and vindicated through the First Amendment. Th e achievement of public ends occasion- ally requires an employee of the state to embrace his or her role as a

Statesmanship acts can be small in scope, directing issues of

public importance on the micro level, like fi nding justice for someone who was abused by

public offi cials.

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