Bradley v. West Chester University: College Administrators Can Be Fired For Raising Ethical Concerns In the Workplace
by Richard Fossey — June 08, 2018
What can happen if a university budget director expresses ethical concerns about how the university’s budget is reported? Can she be fired?
Most public universities hold their administrators to a high standard of integrity, particularly administrators who have budget responsibilities. Financial officers are expected to be competent stewards of university revenues and to report any financial improprieties they discover. And, it goes without saying, college budget officers are responsible for constructing accurate budgets and not to cook the books.
But what can happen if a university budget director expresses ethical concerns about how the universitys budget is reported? Can she be fired? A recent federal appellate court says she can.
COLLEEN BRADLEY, WEST CHESTER UNIVERSITYS BUDGET DIRECTOR, IS FIRED FOR EXPRESSING CONCERNS ABOUT HOW THE UNIVERSITY BUDGET IS REPORTED
Colleen Bradley was the Director of Budget and Financial Planning at West Chester University (WCU), a public university in Pennsylvania. This job required her to review the universitys budget creation process and recommend improvements.
As budget director, Bradley regularly helped prepare WCUs budget (called the BUD Report), which WCU submitted to the Pennsylvania State System of Higher Education (PASSHE). While working on WCUs BUD Report, a PASSHE administrator instructed Bradley to increase the Transfer to Plant line item by several million dollars. Before this transfer, WCU showed a surplus of several million dollars. After the transfer, WCUs budget report showed a multi-million dollar deficit. Bradley questioned this transfer, but the System administrator assured her that the BUD Report was a political document and urged Bradley to cooperate (Bradley v. West Chester University, 2018, p. 647).
Bradley regularly attended weekly meetings of WCUs Administrative Budget Committee. At one of these meetings in 2012, Bradley expressed her belief that the line item transfer that the PASSHE administrator requested was unethical and quite frankly [possibly] illegal. Mark Mixner, WCUs Vice President of Finance and Administration and Bradleys supervisor, was displeased by Bradleys comments; and he later said that she had put her credibility as well as [her] future was at risk (p. 648).
Bradley, however, continued to press her concerns about WCUs budget process. At the next budget meeting, she circulated a memorandum expressing her views. In this memorandum, she stated her objections to submitting a BUD Report showing a deficit and to the entire reporting process (p. 648).
Bradleys memorandum went on to state:
I am an employee of the State and the University and it is my responsibility to report data that I can support and explain. Currently, I cannot explain or justify this budgeting technique and the implications make me very uncomfortable. I have openly and cooperatively been seeking answers to authenticate the data, but have not received any response. In the meantime, it has been explained to me that my actions last week have endangered my credibility and I find this hugely disappointing due to [sic] I am seeking truth and trying to perform my job with integrity and honesty. (p. 648).
Apparently, Bradleys remarks did not change WCUs budget reporting process, and the budget-preparation controversy surfaced again two years later. At a meeting of WCUs Enrollment Management Committee (EMC), Bradley submitted budget information showing a budget deficit of $15 million. This was the budget that Vice President Mixner preferred, but which, in Bradleys opinion, inflated university expenses.
An EMC committee member asked how it was possible that WCU was running a deficit in light of the fact that student enrollment had gone up. Bradley expressed amusement at this question and presented the committee with an alternate budget, one that showed a surplus.
Perhaps not surprisingly, Mixner was angered by Bradleys decision to present her preferred budget to the EMC. A few weeks later, Mixner held a meeting with Bradley, where he told her she was not a cultural fit for the university and her contract would not be renewed. Mixner followed up with a letter stating he no longer ha[d] confidence that [she] can provide the leadership the University needs (p. 649). Bradleys contract expired on June 30, 2015, leaving her out of a job.
Bradley sued Mixner, WCU, and PASSHE, alleging a violation of her First Amendment rights. She also brought a claim under Pennsylvanias Whistleblower Law, and a tort claim for infliction of emotional distress. A few months later, however, a federal trial court dismissed all of Bradleys claims, although the judge allowed Bradley to refile her tort claim and whistleblower claim in state court. Bradley then appealed to the Third Circuit Court of Appeals.
THE THIRD CIRCUIT RULES THAT BRADLEYS FIRST AMENDMENT RIGHTS WERE NOT VIOLATED
On appeal, the Third Circuit upheld the trial courts decision. The appellate court ruled that WCU and PASSHE, as arms of Pennsylvania state government, were immune from suit under the Eleventh Amendment. But the most interesting part of the Third Circuits decision was its conclusion that Colleen Bradley had criticized her universitys budget process in her official capacity as a university employee and not as a citizen. Therefore, she had no constitutional protection against being fired.
Speech by government employees is constitutionally protected when the employee is speaking as a citizen, not as an employee, and when the speech involves a matter of public concern, the Third Circuit ruled. If these two prerequisites are not met, a public employee has no First Amendment cause of action based on his or her employers reaction to the speech (pp. 650-651, internal quotations and citations omitted).
Bradley argued that she was speaking as a citizen when she raised her budget concerns at the Enrollment Management Committee meeting, but the court disagreed. On the contrary, the court pointed out, Bradley attended the EMC meeting at the behest of Mr. Mixner, her direct supervisor, and the record contains no indication that the meeting was open to the public. Moreover, Bradley recommended her alternate budget, the one she felt presents reality,' directly in response to a question from one of the EMCs members. In short, Bradley spoke because that is part of what she was employed to do, in a mode and manner that were possible only as an ordinary corollary to her position (pp. 652653, internal quotations and citations omitted).
The Third Circuit panel concluded its First Amendment analysis by acknowledging that speech involving government impropriety occupies the highest rung of First Amendment protection. And, the court emphasized, we take seriously Ms. Bradleys concerns about WCUs budgeting practices (p. 654). Nevertheless, the court asserted that it was bound by the jurisprudence of the U.S. Supreme Court, which had ruled in the seminal case of Garcetti v. Ceballos (2006) that public employees enjoy no First Amendment protection for speech uttered as part of their job responsibilities.
CONCLUSION: SEE SOMETHING, SAY SOMETHING" (UNLESS YOU ARE A PUBLIC EMPLOYEE)
Government officials constantly admonish the public to alert the proper authorities about suspicious conduct. See something, say something, is the watchword of the day. Indeed, public officials cannot effectively combat crime, violence, or financial misconduct unless individual citizens exercise their civic duty to report their suspicions of wrongdoing and misbehavior.
Unfortunately, public employees who report ethical concerns as part of their official duties are not constitutionally protected from being disciplined or even fired. Thus, for people in Ms. Bradleys position, the watchword is not See something, say something, rather, it is Keep your mouth shut if you want to keep your job.
Bradley v. West Chester University, 880 F.3d 643 (3d Cir. 2018).
Garcetti v. Ceballos, 547 U.S. 410 (2006).
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