Freedom to Speak

By Tom Shoop

December 1, 1999

tshoop@govexec.com

This fall brought a cautionary tale about the relationship between government, its employees, the media and the First Amendment-involving the very magazine you're reading.

The story starts in April 1996, when Government Executive published an article called "The Great Divide" about race relations in government and efforts to increase diversity in the federal workforce. The story and an accompanying sidebar included several statements by Denise Meridith, director of Arizona operations for the Interior Department's Bureau of Land Management, about the difficulties she had experienced in rising through the ranks of a largely white and male agency.

Later that month, Deane Zeller, a district manager in BLM's Salt Lake City field office, who was then on detail to the agency's Utah state office as a special assistant, wrote a letter to the editor of Government Executive about the story. Zeller identified himself as a white male who had worked at BLM for 33 years, and included his official title in signing the letter.

In his letter, Zeller insisted he was "not a prejudiced person," and acknowledged that "affirmative action and preferential hiring of women and minorities has had some positive effect on this agency." But he went on to argue that "slam-dunking underqualified women and minorities (and political appointees) into critical, executive positions is proving to be a disaster," leading to "a downward spiral of morale and productivity" at BLM. Government Executive published the letter in July 1996.

Several BLM managers took exception to Zeller's statements and complained to top agency officials. The agency's response was swift. In August, Zeller received a letter of reprimand from the acting Utah state director "for using your official title in your private capacity and in so doing, making statements contrary to bureau policy." Several months later, Zeller was reassigned to a position he describes as "a meaningless, dead-end job and a waste to taxpayers."

In September, then-BLM Director Michael Dombeck sent a memo to agency employees saying Zeller's opinions did not represent official agency policy. He also sent a response to Government Executive, which was published in our December 1996 issue.

To BLM officials, the case against Zeller was simple: He had violated a section of the agency's ethics code that directs employees not to use their official titles "in your private capacity, such as in a letter to the editor." Readers of the letter "may naturally assume" that Zeller's opinions were "those of all or most of the management officials in BLM-Utah," Zeller's manager wrote in his letter of reprimand.

Zeller fought the letter and the reassignment by filing grievances with the agency and then taking his case to the Office of Special Counsel, which investigates allegations of prohibited personnel practices in government. In October of this year, OSC filed a petition with the Merit Systems Protection Board seeking a retraction of the reprimand and the restoration of Zeller to his old job or an equivalent one. Contrary to BLM's statements, OSC argued, both Zeller's letter of reprimand and his reassignment were issued not because he included his title in his letter but because of the opinions he expressed-a violation of his rights under the First Amendment.

In its petition, OSC said Zeller's actions did not violate governmentwide ethics regulations, which only state that an employee may not "use his government position or title or any authority associated with his public office in a manner that could reasonably be construed to imply that his agency or the government sanctions or endorses his personal activities." BLM's assertion that Zeller's letter could have been interpreted as official agency policy stretches credulity. After all, Zeller characterized his agency's approach to affirmative action as "a joke." Besides, OSC noted, "the people who read Government Executive should be sophisticated enough to know that a district manager does not speak for the agency and that Mr. Zeller could only have been speaking in his private capacity."

In addition, OSC noted, BLM's enforcement of its own ban on using official titles when communicating with the media was clearly selectively enforced. Denise Meridith, for example, wasn't disciplined for giving her name and title to Government Executive.

In response to OSC's actions, BLM officials noted that Zeller's letter of reprimand had already been removed from his personnel file in July 1997, and offered to create for him a new position-science adviser for the Utah state office. But as of early November, Zeller was still seeking a complete retraction of the letter and a job similar to the one he had when he was reassigned.

In an era when federal agencies routinely bemoan the lack of respect they get from the media, it's hard to understand the treatment Zeller has received. After all, the relationship between agencies, their employees and the press is based on mutual trust and the free exchange of ideas that the First Amendment guarantees. Agencies should remember that it is in their own interest to foster an open dialogue in which their employees are encouraged to express a wide range of viewpoints on important issues of public concern.

Tom Shoop is executive editor of Government
Executive.


By Tom Shoop

December 1, 1999

http://www.govexec.com/magazine/1999/12/freedom-to-speak/6243/