Connecticut Supreme Court Grants Constitutional Protection to Whistleblowers in the Public and Private Sectors

In a recent opinion from the Supreme Court of the State of Connecticut, Trusz v. UBS Realty Investors, LLC, __ A.3d __, 319 Conn. 175 (Conn. 2015), the Court held that First Amendment protection “applies to speech in a public workplace under the state constitution and that [the state’s whistleblower protection law] extends the same protection to employee speech in a private workplace for claims involving the state constitution.” This ruling from Connecticut’s highest court comes a little more than a year after the U.S. Supreme Court’s ruling in Lane v. Franks, 134 S. Ct. 2369 (2014), which narrowed the strict holding of Garcetti v. Ceballos, 547 U.S. 410 (2006), and allows for First Amendment protection for government employees who testify truthfully under oath about matters related to their employment. This expansion of constitutional protection to public employees by the Connecticut Supreme Court is a hopeful sign for enhancing the protection of whistleblowers nationwide.

In Garcetti v. Ceballos, the U.S. Supreme Court held that First Amendment protection applied to the speech of government employees only when those employees spoke about non-job related duties. But last year, in Lane v. Franks, the Supreme Court opened the door to First Amendment protection for public employees’ speech related to job duties by considering both the employee’s “obligation to the court and society at large [to tell the truth in testimony]” and whether an absence of such protection “would place public employees who witness corruption in an impossible position, torn between the obligation to testify truthfully and the desire to avoid retaliation and keep their jobs.” Ultimately, in Lane, the Supreme Court held that the First Amendment affords protection to public employees who testify truthfully about job-related duties.

In Trusz, the Connecticut Supreme Court took the Supreme Court’s reconsideration of Garcetti a step further in in answering a certified question from the U.S. District Court for the District of Connecticut: whether Garcetti preempts Connecticut’s law prohibiting employers, public or private, from terminating employees for engaging in speech protected by the First Amendment of the U.S. Constitution or Article I of Connecticut’s state constitution. Connecticut’s highest court answered that it did not.

Richard Trusz worked for UBS Realty, a publicly traded real estate management services firm, as managing director and the head of its valuation unit. In 2008, Trusz reported to management what he believed to be serious errors in the valuation of a number of properties. Trusz also reported that he believed the errors and corrected statements should be reported to UBS’s investors. Trusz also disclosed that the problems resulted from understaffing and inadequate resources in UBS’s valuation department, and insufficient internal controls for valuation. Trusz told management that he felt these serious lapses caused UBS to violate its fiduciary duties to its investors. UBS audited the valuations, found errors, but ultimately found the errors were not significant enough to warrant corrected statements. Thereafter, UBS fired Trusz. Trusz alleged unlawful reprisal. UBS moved for summary judgment.

The Connecticut Supreme Court held that “if an employee’s job related speech reflects a mere policy difference with the employer, it is not protected. It is only when the employee’s speech is on a matter of public concern and implicates an employer’s ‘official dishonesty … other serious wrongdoing, or threats to health and safety’ that the speech trumps the employer’s right to control its own employees and policies.” In other words, if an employee speaks about a serious threat to the public, that employee enjoys constitutional protections for doing so, even when the speech relates to his official duties. Holding otherwise, the Connecticut Supreme Court said, “[would] remove the incentive for an employee to raise concerns publicly without first raising them internally.” Additionally, the Trusz Court held that employees both in the public and private spheres enjoy this protection.

This holding, though limited to Connecticut, is important because it demonstrates a move toward providing whistleblowers constitutional protection for disclosures they make regarding matters of grave public concern, even when those matters are related to official job duties. Holdings like this one, which build on the U.S. Supreme Court’s recent clarification of Garcetti in Lane, represent a move toward broader protections for whistleblowers who protect the health and safety of the American public and economy by disclosing violations of law.

Tagged: First Amendment, U.S. Constitution