Whistleblower Laws Violated by Gag Orders at Federal Agencies

Agencies can’t bar speech without reminding workers of their rights

In December, The Washington Post revealed that the Centers for Disease Control and Prevention (CDC) had recommended employees not use certain words, including “diversity” and “entitlement,” when preparing budget documents for Congress. According to a federal watchdog, which verified parts of The Post’s reporting, this was one of several questionable decisions the CDC and its parent agency, the Department of Health and Human Services (HHS), made last year that undermined whistleblower rights.

Federal law prohibits the government from placing restrictions on employees’ free speech without making it clear those restrictions don’t remove their rights to disclose wrongdoing. But many government agencies haven’t taken these laws seriously — whistleblower protections are just words, and agencies won’t even put them on paper.

After a request by a coalition of organizations including the Government Accountability Project, where we both work, the Office of Special Counsel (OSC), an independent agency that enforces government employees’ free speech rights, launched an investigation into the word ban and other HHS gag orders.

In a May 14 letter, the OSC reported that while the CDC policy wasn’t technically a violation of law, CDC staff were instructed to avoid using words and because of that, they may “believe that their rights to blow the whistle are being chilled.” The OSC also reported that HHS explicitly violated the Whistleblower Protection and Enhancement Act with three other gag orders since January 2017, including bans on unapproved communication with members of Congress and the media.

In response to the OSC’s findings, HHS and the Justice Department, which the OSC also caught violating whistleblower laws, have agreed to rewrite their gag-order policies and send out emails to their employees explaining their rights.

These two agencies are now doing the right thing, but they aren’t the only ones who have restricted their employees’ free speech.

We have been collecting other federal agencies’ policies on employees’ speech through Freedom of Information Act requests. So far, we have found restrictions on employee free speech by agencies including the Energy Department, the Department of Housing and Urban Development, the Agriculture Department and the Drug Enforcement Administration. None of these agencies outlined their employees’ whistleblower protections in their communication policies.

These are just the ones that have answered our requests so far. When it comes to other agencies, despite clear direction from the OSC and Congress to inform employees of their whistleblower protections, the evidence suggests this pattern of lawbreaking is continuing across the government.

This dispute might seem like bureaucratic wrangling to some, but it matters. Few federal employees are aware of their whistleblower rights.

Federal (and corporate) employees who are not part of the intelligence community have a legal right to publicly expose evidence they reasonably believe shows a violation of law, rule or regulation, gross mismanagement or a gross waste of funds, abuse of authority, or a substantial and specific danger to public health or safety. And they have a right to do this free of retaliation.

But government employees, reading their agencies’ rules, will not know they have the right to contact Congress or the media to expose misconduct. Even if they know their rights, they may be too frightened to speak out, believing they will face punishment for violating a gag order.

This will stop people from speaking out about abuses from sexual assault to the theft of government funds. Some whistleblowers make public disclosures only after they have left their positions. Like Joel Clement, a former scientist from the Interior Department who publicly resigned after contesting the politicization of science. Or Heath Philips, a Navy sailor who reported sexual assault nearly 30 years ago and was vindicated only last month.

Potential whistleblowers like these two could be tricked by a vindictive agency into believing that exercising their legal rights violates agency rules. Worse, some agencies aren’t just ignoring whistleblower protections; they are actively trying to write them out of the law.

In March, the New York Times exposed a plot by the Education Department’s leadership that could restrict whistleblower protections during union contract negotiations. The department tried to eliminate a guarantee against retaliation for employees who brought up grievances. Anti-retaliation measures are a cornerstone of whistleblower protection and are vital to creating a functioning workplace.

The Office of Special Counsel has now held two major departments of government accountable for restricting whistleblower rights. As a result, federal civil servants are more likely to expose problems, and the public will benefit from a more efficient and effective government.

The trend of undercutting whistleblower rights with these policies needs to stop here.

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