SB Sun, Jason Pesick, Staff Writer 092206
RIALTO -- A former city engineer says he was terminated from his job for exercising his First Amendment rights when he acted as a whistle-blower.
Fuad Modiri, who had complained that the city and his former superior were incompetent and mismanaged public funds, is suing the city and his former boss, Robert Harary, saying his civil rights were violated when he lost his job.
The question the lawsuit presents: Does a whistle-blower have the right to say his employers are incompetent and wasting public funds without being fired, even if he is correct?
Modiri filed his suit in July. He wants his job back and is seeking damages, saying the city and Harary violated his rights of free speech, association and assembly under the First and Fourteenth amendments of the Constitution.
The city says that Modiri was terminated because his work was unsatisfactory.
The case, which will not go to trial for months, raises questions related to the extent of an employees's First Amendment right to speak out about issues of public concern.
Modiri's suit cites four major policy decisions Rialto officials made as examples of incompetence and mismanagement:
* Ignored his concerns that it was not safe to open the Alder Avenue exit of the Interstate 210 extension.
* Failed to comply with the National Pollutant Discharge Elimination System, which requires cities to meet certain environmental guidelines.
* Bungled an agreement with a contractor, which cost the city $320,131.
* Lost a $2.5 million federal grant by failing to meet grant guidelines.
Ed Zappia, who is defending the city and the former public works director Harary, said Modiri was a well-liked guy, but a marginal-to-poor employee.
In each case, Modiri says he spoke out to other government employees inside and outside Rialto and sometimes to private citizens.
His attorneys claim his speech is constitutionally protected because as a private citizen he spoke out about issues important to the public.
Peter Scheer, the executive director of the California First Amendment Coalition, said the case law on these types of cases is not settled.
"It's notclear just where the line is," Scheer said.
He said speech that stays within the office about an internal matter is not protected. He said even if speech is about public money or incompetence it probably wouldn't qualify as protected.
Scheer said the more people outside the office Modiri went to, the stronger his case, because public speech is protected. The speech not only has to be about a subject that affects the community, but it must also interest a typical resident, he said. Speaking out about the war in Iraq serves as a good example of protected speech.
Mike McGill, Modiri's attorney, said the First Amendment protects his client as a whistle-blower on a matter of public concern. McGill said the public needs to be able to expect that people knowledgeable about issues of public concern will inform them of those issues.
Zappia said Modiri is trying to portray discussions he had with other employees and officials in the regular course of his work as protected speech. For example, he said what Modiri claims to be whistle-blowing about the Alder Avenue off-ramp of the I-210 extension was actually typical of discussions government employees have about a new project.
He cited the Supreme Court's 2006 Garcetti v. Ceballos opinion, arguing that discussions between engineers about an off-ramp do not count as protected speech because they are discussions that take place in the normal course of work.
He said that even if Modiri talked to nongovernment employees about these issues, his speech is not protected because he was talking about issues related to his job.
Scheer said the Supreme court only made the issue more confusing with its recent opinion.
"We'll just have to see where it goes," he said.
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BSRanch Perspective:
This is an interesting case now isn't it. The employee that is let go because they are a "poor employee" right about the time that they are pointing out serious safety issues that ultimately had to be addressed by them because they were in a heated rush to get that intersection opened up, so that they were driving their Trucks to the County Dump Facility!
However when you have an employee that is the one that points out a safety issue to you doesn't seem to be the one that is trying to slow you down, but the one that is concerned for the public Safety!! I always thought.
This is that Bait Switch and slander. position that is going to be taken in court. He was a great employee, and I suppose that all his work evaluations all show that he is a meets or exceeds employee, but then when he suddenly pointed out the opening of Alder Ave, then he suddenly didn't get such a great millage.
I guess then he was let go, but then all he will have to do is get the evaluations in court and show that there is an inconsistency in what they are reporting even to the press.
We here at the BSRanch will keep him in our prayers!!
BSRanch
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