Special Counsel Issues Reminder That Agencies Cannot Gag Whistleblowers

With many federal employees chafing at new Trump administration clampdowns on unauthorized communications, the Office of Special Counsel on Wednesday issued a reminder of the anti-gag order provision in the 2012 Whistleblower Protection Enhancement Act.

That law says agencies “cannot impose nondisclosure agreements and policies that fail to include required language that informs employees that their statutory right to blow the whistle supersedes the terms and conditions of the nondisclosure agreement or policy,” the agency noted.

“We’ve been getting a lot of questions in the last few days about the anti-gag provision,” OSC spokesman Nick Schwellenbach told Government Executive. “Federal employees are protected for making disclosures of wrongdoing, including threats to public health and safety.”

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As U.S. Code Title 5, Section 2302 (b) states, anti-retaliation protections explicitly shield employees for blowing the whistle on any effort to “distort, misrepresent, suppress” or otherwise censor any government “research, analysis or technical information” that the employee reasonably believes could, among other things, pose a substantial and significant threat to public health or safety or constitute a violation of law, rule or regulation.”

The Trump orders--which the White House has downplayed—include a memo from managers at the Environmental Protection Agency freezing contracts and grants, but also instructing employees not to discuss the issue. The directive reportedly added that the agency would no longer issue press releases, post blog entries, and review external speaking engagements and webinars, and would block any new information from being published on its website.

Democratic House members blasted Trump’s alleged directives Thursday in a letter to White House Counsel Donald McGahn, demanding that they be corrected. “For more than a century, Congress has protected the rights of federal employees to communicate with Congress about waste, fraud and abuse in the executive branch,” wrote Reps. Elijah Cummings, D-Md., and Frank Pallone Jr., D-N.J., ranking members of the Oversight and Government Reform and the Energy and Commerce panels.

“Because of the magnitude of these problematic directives, we request that the president issue an official statement making clear to all federal employees that they have the right to communicate with Congress and that he and his administration will not silence or retaliate against whistleblowers,” the lawmakers said.

In addition to the 2012 whistleblower law, the letter cited the 2016 Consolidated Appropriations Act, and U.S. Code Title 5, Section 7211, “which was enacted in 1912 to protect the rights of federal employees to communicate with Congress.” 

Whistleblower advocates acknowledged that all transitions require temporary changes in communications procedures, but warned that efforts to suppress hard information on health and safety are illegal. “Blanket bans on communication with Congress or the public are crude, clumsy policies that threaten to keep us all in the dark,” wrote Project on Government Oversight program manager Sean Moulton and POGO policy associate Emily Manna in a Thursday blog post, in which they admitted that the gag-rule reports are based on unconfirmed leaks. “New communication policies should be issued in the light of day and carefully crafted to acknowledge the vital information agencies provide and comply with legal requirements.”

The Special Counsel’s statement said, “Federal employees may erroneously believe that a nondisclosure policy, form or agreement nullifies their whistleblower rights.” Since 2013, the agency has issued 33 corrective actions in agency communications to require mention of the whistleblower protections.

Examples of violations from 2016 that OSC remedied included:

  • A supervisor in the Homeland Security Department’s Office of Professional Responsibility emailed his staff and directed them not to communicate with inspector general auditors, stating that “We need to have one voice.”           
  • A high-level engineer at the Energy Department’s Hanford Site disclosed that a contractor’s shoddy work created a significant threat to public health and substantial cost overruns. He also disclosed inadequate Energy Department oversight of that contractor. During OSC’s investigation, OSC learned that employees on certain projects were being forced to sign nondisclosure agreements, many of which lacked the required WPEA language.         
  • Two police officers with the Federal Emergency Management Agency disclosed alleged misconduct by a supervisor to a Justice Department investigator. FEMA disciplined both officers based on a FEMA directive, which prohibited employees from disclosing information related to certain types of misconduct to any individual or office other than the DHS inspector general.          

Correction: The initial version of this story failed to identify Emily Manna as a co-author of the blog post with Sean Moulton. The story has been updated to reflect that.

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