A federal appeals court ruled Friday that two Baltimore City workers who spoke out against improper contracting in the city’s Department of Public Works could sue the bosses who demoted them.
A three-judge panel of the U.S. 4th Circuit Court of Appeals ruled that the supervisors are not immune from charges that they retaliated against workers who were exercising their free speech rights by speaking out.
The court said it “should have been evident to any reasonable government official” that the statements by the workers — who were asked by authorities to come forward — regarded a matter of public concern.
Jeanne Robinson and David J. Marc charged that a DPW contract was awarded as a payback to a firm that had contributed to Mayor Kurt Schmoke’s re-election campaign. Their attorney said they were pleased that the court cleared the way for them to sue.
“We plan to bring the case to court as soon as possible,” said Howard J. Schulman.
“This case has always been about protection,” he said. “They protected the environment, now we hope the courts will protect them.”
DPW spokesman Kurt Koucher said in a prepared statement that the ruling “does not address the merits or facts of the case, but is merely about the legal issue of the immunity of the defendants.”
“Our lawyers firmly believe that we will prevail in this matter, which amounts to a series of unsubstantiated allegations brought about by two disgruntled employees out of 6,000,” he said.
Robinson and Marc were supervisors in the DPW’s Bureau of Solid Waste in 1995 when L.F. Mahoney Inc. won a contract to repair a leachate pond at the Quarantine Road Landfill.
Mahoney was not the original low bidder and was primarily a paving contractor with no experience in leachate pond repair, said Robinson and Marc. They charged that the bids were reworked to favor the company for its support of Schmoke.
They later resisted refilling the pond, claiming the work had not been done properly.
For their efforts, Robinson and Marc said they were warned by their superiors, George G. Balog and Robert Guston, to stay away from the issue.
Balog claimed that any problems with the pond were not Mahoney’s fault but were caused by Robinson’s “error in engineering judgment” in not promptly refilling the pond. In December 1995, he sought an additional $41,000 to pay Mahoney for repairs.
When the request was presented to the Baltimore Board of Estimates, board member Lawrence Bell asked Robinson and Marc to testify.
Later that month, federal prosecutors asked the two if they would agree to be interviewed by the FBI on both the pond and potential racketeering in the DPW. Both agreed and did so.
Robinson and Marc claim that the defendants — Balog, Guston and Leonard H. Addison, who was named head of the Bureau of Solid Waste in November 1995 — learned of their statements and retaliated.
After the board meeting, Robinson and Marc were excluded from staff meetings and from overtime snow duty, costing them $10,000 and $3,000 in overtime pay respectively.
Robinson was transferred from a job supervising 64 employees in the engineering division, with its budget of $18 million, to the three-man, $150,000 collections division.
Marc’s city car, parking permit and laptop computer were taken away. When he applied for an early retirement program, he was turned down, even though requests from employees in similar situations were granted.
Robinson and Marc sued Balog, Guston, Addison, the mayor and city council.
The federal district court in Baltimore ruled that, because Robinson and Marc were speaking in their capacity as city employees, their speech was not protected by the First Amendment. Because it was not protected speech, city officials could not be sued for acting against them, the lower court ruled.
The appeals court agreed that the city could not be sued, since there was no evidence of a formal system-wide retaliation against the plaintiffs.
But it said the two were speaking as citizens protected by the First Amendment when they testified about the contract and that, as such, Balog, Guston and Addison could be sued for retaliating against them.
The appeals court ruled that Robinson and Marc’s testimony to the board was a matter of public importance. It noted that they were called by the board to testify and approached by the FBI agent, not the other way around.
Schulman said his clients are satisfied with the partial victory. “They feel vindicated, before they felt helpless,” he said.
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