Terra Extraneus

The New York Times reported on January 28, 2009 that JP Morgan conducted a “wide ranging review” of its hedge fund exposure. JP Morgan asked Bernard L. Madoff’s funds questions and did not like the answers. JP Morgan withdrew the money it invested in 2008, prior to the implosion caused by the discovery that Madoff was the greatest Ponzi-scheme offeror in history. But, JP Morgan did not tell its own customers about its experience with the Madoff-linked funds.

No doubt the personnel at JP Morgan that conducted the review, got the answers from the Madoff-linked funds, decided the answers were insufficient, and recommended fund withdrawals, rather than being given a corporate gold star by JP Morgan, will end up being used as cannon fodder while JP Morgan management tries to defend itself against its own unhappy customers that believe JP Morgan should have alerted them, too. JP Morgan will no doubt claim that there was a Chinese wall between its internal corporate investment advisors and its external fund managers. The managers of the funds of JP Morgan customers will no doubt claim they did not get the word from the internal corporate advisors.

The New York Times reported that JP Morgan got itself out of the Madoff-linked funds when the funds were reported to be up five percent while the broad market was down thirty percent. Also, the news report indicated that Madoff accounts were held at JP Morgan, in other words, Madoff was a bank customer, too. Was JP Morgan able to use what it learned from those accounts to protect itself but unwilling, or unable, to use that information to protect all of its customers?

It will be interesting to see whether JP Morgan gets sued in a claw back claim by the regulators. After all, the money JP Morgan withdrew was arguably not their money, but the money of some other dupe.

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In Oklahoma, on a slow news day, you can be sure each local television news broadcaster will have a story about a dog complete with video footage. Movie industry executives also seem to have concluded that movies about dogs sell tickets.

But, it now appears that human civil rights can be curtailed in the face of dog rights. The United States Court of Appeals for the Tenth Circuit reversed the federal district court sitting in Oklahoma City, in a published opinion no less, in a case styled Rajeanna Dixon v Oklahoma Board of Veterinary Medical Examiners. It took thirty pages for the Tenth Circuit to explain this. Indeed, the challenge we are now faced with is to explain why it took thirty pages for the Tenth Circuit to reduce the civil rights of a state employee to zero, elevate dog rights to greater than constitutional importance, and zero out the First Amendment in the absence of a national security consideration. Oh, and the Central Intelligence Agency is involved, so keep reading.

Ms. Dixon was fired from her secretarial job at the Veterinary Board because she allegedly discussed an ongoing investigation into dog fighting and dog doping with her own veterinarian, who happened to be a veterinary association member responsible for legislative over sight of the Veterinary Board and its budgets and powers, largely because she was concerned the agency, which only had four employees, including her, was stepping out side of its mandate. Also, she allegedly told the veterinarian that the board’s investigator was now carrying a gun even when he went to meet with veterinarians.

The federal district court denied the summary judgment motions asserting qualified immunity presented by the board and the board appealed. Thus, this opinion by the Tenth Circuit was doubly weird because normally the mere denial of a summary judgment motion is interlocutory and not appealable.

It has to be noted that the investigation of the Veterinary Board into dog fighting and dog doping resulted in an arrest, probably by another law enforcement agency, that was reported in the news media. It has to be noted that Ms. Dixon comments on the investigation, if they occurred, were made after the news media report made the investigation, at least in part, public. Indeed, the news media report suggests it had become a matter of public concern, at least on a slow news day, and thus Ms. Dixon’s comment upon on it should have been presumptively protected, and not used as a pretext for firing her.

But, the Tenth Circuit concluded that there were “unprotected” statements, in addition to protected ones. In other words, as soon as the Tenth Circuit found that the First Amendment did not reach these statements, then Ms. Dixon could be fired for speaking about the Veterinary Board if the interests of the Veterinary Board, as a government employer, outweighed Ms. Dixon’s right to free speech. The Tenth Circuit concluded that Ms. Dixon’s other comments were “trivial in nature.” (“Serious complaints about discrimination can certainly be a matter of public concern, but the record reveals discussion of nothing more than a few stray comments.”) The right of the state government agency not to have a secretary discuss agency business, public or non-public, was deemed greater than the First Amendment protection.

Comically, the Tenth Circuit put the Veterinary Board of Oklahoma on a high investigatory pedestal when it parenthetically stated: “That is why the CIA regularly responds to inquiries by saying it can “neither confirm nor deny.” Admittedly, sitting in Denver, the Tenth Circuit might not be completely aware that the Central Intelligence Agency of the United States and the Oklahoma Veterinary Board are not handling matters of equal importance. That might explain the lack of a sense of perspective in the opinion and may be the loss of perspective in government generally. Apparently, we dare not have transparency in any government agency, even one that abandoned its mission to regulate veterinarians in favor of investigating dog fighting rings. Apparently, our society will come crashing down around us if we have First Amendment rights about state agency veterinarian medicine regulation.

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