Desire for consistent message to Congress could gag those disclosing waste or fraud.
The General Services Administration’s communications policies are confusing, lack transparency and risk violating whistleblower protection laws by requiring centralized approval, a watchdog found.
The agency’s efforts to respond to congressional inquiries in an “official” and consistent way appear to go against the intent of the 2012 Whistleblower Protection Enhancement Act, GSA’s inspector general said in a report released on Thursday.
Whistleblower advocates have said Trump administration employee nondisclosure policies they see as “gag orders” could impede legitimate whistleblowing to Congress or the press. The Office of Special Counsel, which investigates whistleblower retaliation complaints, has warned against such gag rules.
GSA’s responses to Congress on such controversies as President Trump’s GSA lease on Washington’s Old Post Office Building that became a Trump hotel have prompted frustration among some lawmakers, who have said GSA ignores information requests that don’t come from majority-party chairmen.
From 2015 through 2017, the IG noted, GSA implemented several published and unpublished policies governing responses to congressional inquiries. “These policies should have contained, but did not contain, the whistleblower protection language that the WPEA requires be included in nondisclosure policies,” the IG said. That failure “increases the risk of confusion and may chill the willingness of potential whistleblowers to come forward.”
The nondisclosure policies, which originated under both the Obama and Trump administrations, “did not comply with internal directives and created opportunities for confusion, misinterpretation, and inconsistent application among its officials and employees,” the report said. Employees told IG interviewers that many employees were not properly informed about the policies and maintained differing understandings about when they were applicable.
Finally, GSA’s most recent communications order, issued in July 2017, did not effectively remove previous policies and did not “clarify whether GSA is continuing its prohibition of employees from responding to individual member inquiries deemed to be oversight or investigative in nature, or limiting the response to such inquiries to agency records identified through GSA’s” Freedom of Information Act process.
The WPEA language that GSA failed to factor into its directives requires that all federal government “nondisclosure policies, forms, and agreements” implemented after its effective date include “specific language clarifying that the policy, form, or agreement in question does not impact statutory whistleblower protections.”
GSA’s written policies stressed that “GSA must speak with one voice,” and direct employees to forward all congressional inquiries to and coordinate any response with the Office of Congressional and Intergovernmental Affairs.
As a remedy, the IG recommended that GSA leaders include the anti-gag provision required by the WPEA and clarify GSA’s policy on communications with members of Congress.
In response, P. Brennan Hart III, associate administrator in the Office of Congressional and Intergovernmental Affairs, promised improvements but disagreed with the IG’s interpretation of WPEA’s text and legislative history. GSA’s order is designed to “ensure that all official responses to congressionally initiated requests are vetted to provide the agency’s official position on particular matters,” the administrator wrote. The agency did revise its order, however, to provide more certainty and timeliness on responses to individual members of Congress and promised to do better using practices “allowable under the law and consistent with longstanding agency and executive policies.”
The agency said in a statement on Friday: "GSA values transparency and the oversight provided by the Office of Inspector General, Congress and whistleblowers, and has updated the order referenced in the inspector general's evaluation. The agency encourages a diversity of opinions and actively supports employees who report misconduct through a variety of trainings and by circulating information reminding employees of their whistleblower rights and protections."
Rep. Elijah Cummings, D-Md., the ranking member of the House Oversight and Government Reform Committee who has battled GSA for documents, said the report "makes clear that political appointees at the White House ordered civil servants at GSA to stop complying with requests from Congress, despite the fact that some of these orders violated federal law....Unfortunately, it does not say who at the White House issued these orders or whether President Trump was involved." In Cummings' view, the report also explains that, "in their rush to silence career employees, Trump administration officials also violated federal laws that protect the rights of whistleblowers to communicate directly with Congress.”
Liz Hempowicz, director of public policy for the nonprofit Project on Government Oversight, which focuses on enforcement of whistleblower protections, told Government Executive that the GSA’s policies as the report describes are “yet another example of agencies either being unclear about what requirements are in place to ensure employees know about their rights to make protected disclosures about wrongdoing or just not caring about those requirements. Agency actions that can chill speech and deter whistleblowers from coming forward should make all taxpayers uneasy.”