The U.S. Supreme Court has denied a petition to hear a whistleblowing case brought by a former West Chester University employee who was terminated from her position after reporting alleged manipulations of university budgets to get more state dollars in their coffers.
The high court announced Monday the denial of a writ of certiorari filed in the case Bradley v. West Chester University et al. on appeal from the U.S Court of Appeals for the Third Circuit which ruled that former university employee Colleen Bradley did not have First Amendment protection when she alerted school officials that funds were being manipulated in budget proposals made in 2012 and 2014 that showed the school being millions in the red as opposed to having tens of millions in surplus. The Third Circuit ruled Bradley was acting within her employment duties as the director of budget and financial planning to bring about such a concern.
Bradley’s lawyers, including Ridley Park-based attorney Daniel Kearney, argued that bringing up the discrepancies in budget finances was speech made as a private citizen and was granted First Amendment protection because making such declarations were not part of her job description.
The lawyers were asking the Supreme Court whether her speech in exposing her public employer’s “false, illegal and corrupt” accounting practices unrelated to her job duties were protected.
Kearney said he was “obviously, very disappointed” in their final appeal effort being shot down by the high court.
“In a nutshell, we have put a lot of time and effort into a case that we thought merited a different result based on the facts and what happened here,” he said Monday afternoon. “They’re (the Supreme Court) not saying your position is right or wrong. For whatever reason … they don’t think the case has enough applicable to a broad audience.”
Bradley was surprised when she first heard Monday morning that the court would not hear the case, calling it a big loss.
“The outcome of this decision is very unfortunate because it opens the doors to further corruption,” she said. "The Supreme Court's decision also does not mean the fraudulent accounting practices were not taking place.
"I have no regrets and I sympathize with victims who are experiencing similar circumstances and don't have any hope for protection or justice."
Spokespersons for West Chester University and the Pennsylvania State System of Higher Education, which oversees the university, released similar statements Monday rebuking the claims made by Bradley and expressing content with the court’s decision to end further legal proceedings.
Bradley’s case starts in 2012 when she was starting to compile her first BUD report – a budget document submitted annually to PASSHE that lists revenue and expenditure streams for the prior, current and the requested fiscal years to determine appropriations for each of PASSHE’s 14 schools – under the tutelage of her supervisor, former Vice President of Finance and Administration Mark Mixner. She was allegedly told by PASSHE Associate Vice Chancellor Lois Johnson to increase the “transfer to plant” line item so that a projected surplus of $18 million would become a projected deficit of over $2 million.
“I was completely blown away by what I was asked to do,” said Bradley, who has a master’s degree in finance and over 20 years’ experience in the banking and finance business before coming to West Chester in 2011. She was allegedly told by Johnson and Mixner that the BUD report was “just a political document” that “no one looks at.” Bradley also claims that then-University President Greg Weisenstein asked to inflate enrollment numbers to keep state money coming in.
Bradley addressed her concerns to the university’s Administrative Budget Committee (ABC) on Sept. 20, and on Sept. 27, Mixner allegedly told the ABC that he had made the line item transfer himself, according to the petition filed with the Supreme Court. She would also bring her concerns to her mentor in then-dean and current university President Chris Fiorentino, who allegedly told her that it wasn’t right what she was asked to do with the manipulation of numbers.
That report with the fabricated $2 million deficit was sent to PASSHE in Bradley’s name, and the school received the appropriations it asked for based on the fixed numbers, according to Bradley.
After this incident, Bradley said she was a “trapped rat” at the university.
“What transpired is I was getting removed from meetings and the responsibilities were taken away from me,” she said. “They started to exclude me and I was like a clerk at these meetings. They started to demean my position.”
In 2014, Bradley presented to the university’s Enrollment Management Committee a reality budget that would help them with budgetary projections. At this meeting, Mixner allegedly wanted Bradley to report his “sky is falling” budget showing a projected $15 million deficit in one year when there was a projected $11 million in surplus. Bradley showed both budgets and the committee is said to have questioned why a deficit was being reported.
Another presentation was set for the “opinion leaders” group the next day and Bradley asked to show the reality budget. Mixner denied the request and showed the budget with the $15 million shortfall to the committee.
Despite continued pleas to Fiorentino for help, Bradley was ultimately terminated by Mixner for not being a “good cultural fit” for the university despite years of glowing reviews by him.
“As a result of this false and misleading budget information,” read a portion of the writ of cert petition, “WCU received more than $146 million in taxpayer-funded appropriations when during the same time (2012-2014) its general and education fund net assets increased by $56.6 million or over 100 percent.”
Bradley initiated a suit in the U.S. District Court for the Eastern District of Pennsylvania before appealing to the Third Circuit, both ruling in favor of Mixner on summary judgment and WCU and PASSHE on Eleventh Amendment immunity grounds.
On her First Amendment claim, “undisputed evidence shows that Ms. Bradley was not speaking ‘outside her chain of command’ when she was reporting to the EMC on Oct. 29, 2014; rather, she was responding, in her official capacity, to a direct question by a member of that committee,” ruled the Third Circuit.
According to Kearney, Mixner was asked a handful of times during a deposition if reporting discrepancies in the budget was part of Bradley’s job duties or performance, and each time he said no.
Although the courts did not dispute the legality or practices that were called upon to report deficits to yield more money from the state, the third circuit said “we take seriously Ms. Bradley’s concerns about WCU’s budgeting practices,” but her claims were made as a state employee and not a “private citizen.”
West Chester and PASSHE spokespersons did not respond to questions about the alleged practices of Mixner and Lois Johnson as reported by Bradley. Mixner could not be reached for comment directly by email or telephone.
Kearney said he was hoping the Supreme Court would take this case considering it had not taken a First Amendment at work case in over 10 years.
In Garcetti v. Ceballos (2006) the Supreme Court ruled 5-4 that a district attorney who was denied a promotion after raising concerns of a search warrant was not granted First Amendment protection because his statements were made in his position as a public employee, not a private citizen.
Additionally, in 2012 the Third Circuit ruled that a School District of Philadelphia employee did have First Amendment protections after being terminated for reporting to a newspaper that the superintendent was steering a prime contract to a minority-owned business.
“As a government employee you’re risking your job and breaching confidentiality,” Kearney said about public employee whistleblowers exposing wrongdoing. “Colleen’s own boss testified that reporting false information was not part of her job. The court put its own job description on Colleen.”
When asked if the Third Circuit’s uncontested decision enhances bad workplace practices while not giving whistleblowers protection to expose it, he said it did.
“From a government perspective, this case is essentially saying it’s really hard for a whistleblower to enforce First Amendment rights,” he said.
If Bradley went to the press, as the Third Circuit suggested in the 2012 case, she could have been fired, but then she was fired for reporting wrongdoing to administrators and other state and university officials.
“It’s a long uphill battle to pursue a first amendment whistleblower claim,” said Kearney. “The way the law shook out it was worth the effort and I believe that.”
In the end, Bradley never saw herself as a whistleblower.
“From the standpoint of never going to the newspapers, I wanted to be in a position to go to work, do my job and add value to the higher education system,” she said. “For anybody who has walked in my shoes to do the right thing, there was nothing I could do.”
After Monday’s decision she said she vows to keep advocating for whistleblowers at the state level.