Office of Special Counsel weighs in on gag orders allegedly imposed on federal employees

Filed under: News |

By Joy Waltemath

By Pamela Wolf, J.D.

Amidst widespread reports that under the Trump Administration federal employees have been ordered not to make outward-facing statements for public consumption, including through blogs and twitter accounts, the U.S. Office of Special Counsel (OSC) on January 25 released a statement detailing its enforcement of the anti-gag order provision in the Whistleblower Protection Enhancement Act (WPEA).

Since President Trump took up residence in the White House last week, media reports have pointed to gag orders imposed at federal agencies, including at the Environmental Protection Agency particularly with regard to research, which immediately drew criticism. At some agencies, rogue twitter accounts have cropped up in a dramatic display of resistance to the apparent gag orders—and they are reportedly drawing more followers than official agency twitter accounts, at least initially.

The OSC is an independent federal investigative and prosecutorial agency. Its authority arises from the Civil Service Reform Act, the Whistleblower Protection Act, the Hatch Act, and the Uniformed Services Employment & Reemployment Rights Act. The OSC’s primary mission is to protect federal employees and applicants from prohibited personnel practices, especially from reprisal for whistleblowing.

Whistleblower fears. And there are mounting concerns about retaliation against whistleblowers. In a January 25 interview on “Morning Joe,” House Committee on Oversight and Government Reform Ranking Member Elijah Cummings (D-Md.) expressed concern over the purported gag order imposed on federal employees at the direction of the Trump Administration. Cummings said that the Committee relies on whistleblowers. He also noted that there has been some confusion over whether whistleblowers can talk to Congress. Cummings assured federal employees that they can in fact talk to Congress and that the law protects then when they do so.

“Under the anti-gag provision, 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,” according to the OSC release. The agency pointed out that absent the WPEA’s required language, federal employees may wrongly believe that a nondisclosure policy, form, or agreement negates their whistleblower rights.

The OSC noted that to date, it as has obtained 33 corrective actions addressing violations of the anti-gag provision. In 2013, the OSC issued guidance to agencies on the anti-gag provision and it trains agencies on that provision. The OSC said it also trains agencies on other prohibited personnel practices, including one that “explicitly shields 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 federal government must foster an environment where employee disclosures are welcomed,” Special Counsel Carolyn Lerner said in the release. “This makes our government work better and protects taxpayer dollars through disclosures of waste, fraud, and abuse. Nondisclosure agreements and policies can chill would-be whistleblowers from coming forward. These orders must clearly state that federal employees have a right to make disclosures of wrongdoing.”

Source:: Office of Special Counsel weighs in on gag orders allegedly imposed on federal employees


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