A House Oversight and Government Reform subcommittee hearing called attention to gag orders issued by President Donald Trump’s administration against federal government employees, which run afoul of the Whistleblower Protection Enhancement Act (WPEA) and other laws.
The hearing was convened around the fifth anniversary of the WPEA in order to consider progress made on whistleblower protection and reforms that are sorely needed. The WPEA was an expansion of the Whistleblower Protection Act passed in 1989.
Democratic Representative Gerald E. Connolly raised the issue of gag orders noting the acting secretary of the Department of Health and Human Services sent a memo on the very first day in office that read, “No correspondence to public officials, that is members of Congress, governors and the like, unless specifically authorized by me or my designee, shall be sent between now and February 3.”
“That language, which ostensibly prevents an employee from speaking with members of Congress on his own, appears to violate” a “number of federal laws,” including the WPEA itself,” Connolly stated. “And it certainly sends a chilling message to our federal employees.”
Democratic Representative Elijah Cummings said the HHS memo violated the WPEA because it did not include “mandatory language” Congress required to “protect whistleblowers, who want to report waste, fraud, or abuse. ”
“We required ‘any disclosure policy, form, or agreement’ to include a mandatory statement that it does not supersede the rights of employees, including specifically to “members of Congress.” And we passed this unanimously,” Cummings added.
According to Cummings, “The Trump administration first tried to deny that memo was sent to employees. Then they sent out some kind of clarification. My understanding is even the clarifying statement still failed to include the mandatory statement we required in the Whistleblower Protection Enhancement Act.”
Cummings requested the committee seek and obtain all emails and other communications in the possession of anyone at HHS related to the directive, its drafting, circulation, and the clarification that was later issued. He also sought records of any other communications prohibiting federal employees from Congress. Republican Mark Meadows, the subcommittee chairman, was hesitant but agreed to requesting “clarifications” from agencies.
Robert P. Storch, deputy inspector general and whistleblower ombudsman for the Office of Inspector General at the Justice Department, Eric Bachman, deputy special counsel for litigation and legal affairs at the Office of Special Counsel, Thomas Devine, legal director for the Government Accountability Project, and Elizabeth Hempowicz, policy counsel for the Project on Government Oversight, each testified at the hearing.
Connolly asked each of them how the memos from agencies like HHS comported with the anti-gag rule.
Devine said they “cancel the rule of law,” and argued they violated three provisions in the Whistleblower Protection Enhancement Act, two appropriations riders, the Lloyd LaFollette Act of 1912, and the First Amendment.
While Storch and Bachman refused to cosign that exact statement, they both agreed it was crucial to ensure employees were not deterred from speaking to members of Congress because that would violate the law.
“Even if these guidance documents are reissued with the disclaimer they are required to have [under the WPEA], they’ve already had a chilling effect,” Hempowicz asserted.
She also said, “If you don’t have whistleblowers feeling like they can come forward through protected channels, you’ll see more and more increased leaks to the media, to the press.” Employees will not “go through those channels if they don’t find that they’re meaningful channels, if they don’t see that the complaints that they’re making through those proper channels are being taken seriously and addressed within the agency.”
After 1,000 or more State Department employees used a dissent channel to voice their concerns about Trump’s ban on Muslim refugees and immigrants, White House press secretary Sean Spicer slurred them as “career bureaucrats” and declared, “I think that they should either get with the program or they can go.”
While Spicer cannot technically violate the WPEA because he is not able to take an action against personnel, Devine said he was speaking on behalf of the Trump White House. The people he was speaking on behalf were in violation of the WPEA when Spicer delivered his remark against State Department employees.
Devine suggested the dissent channel is the type of channel that posters on the walls at agencies direct employees to use if they want to blow the whistle. “This is the proper channel that you’re supposed to use if you’re a public servant, who is following and respecting the code of ethics. It is incompatible with the Whistleblower Protection Enhancement Act to threaten them with termination or ask them to leave because they’re doing what the code of ethics says they’re supposed to [do].”
Moreover, it is “legally-protected speech,” Devine argued. “There should be discipline against those who try to cancel the flow of information to Congress.”
Democratic Representative Brenda Lawrence asked about the Republican move to revive the antiquated Holman Rule so they can slash the salaries of federal employees to $1 if they so choose. “Imagine a federal employee, who is considering blowing the whistle on wrongdoing. Even if that disclosure is protected, meaning the agency cannot retaliatory action, nothing prevents Congress from slashing that employee’s salary.”
Lawrence wondered if the revived rule could have a chilling effect on a whistleblower.
“It should have a chilling effect because it creates a deep vulnerability,” Devine stated. “It allows members of Congress to engage in the same actions that would be illegal if taken by an Executive Branch employee, who actually is familiar with the whistleblower’s performance or work. So it’s a serious new loophole that should be addressed.”
Bachman said anything like the Holman Rule or a non-disclosure agreement that might create a chilling effect and give somebody more than pause about coming forward is something that would not be helpful to whistleblower protection. Storch agreed.
Earlier in the hearing, Cummings highlighted the request by the Department of Energy for the names of employees, who worked on climate change initiatives. He also noted the State Department requested information on staffing and positions “related to gender equity and violence against women.”
Both Hempowicz and Devine also focused on “retaliatory investigations” against whistleblowers because the WPEA does not offer whistleblowers much protection against such misconduct by officials.
“We call them the weapons of choice for retaliation against whistleblowers because it’s a win-win situation for the agency. Either they find something and then they can take whatever action they want to against the whistleblower and have a reason for it, or they don’t find something and it just looks like they were doing their due diligence,” Hempowicz said.
Such “discretionary” investigations are very common, and to Devine, they are far more chilling than any personnel action, especially when they lead to criminal prosecutions. They can even enable “witch hunts” later in an employee’s career.
Devine insisted Congress could resolve the issue by allowing employees to challenge retaliatory investigations as violations of the WPEA.
“This is the start of almost every case of retaliation, to shift the spotlight from the message to the messenger and try to destroy their credibility, ruin them, and make an example,” Devine contended. “You can do that without ever touching the Whistleblower Protection Act because they’re defenseless until the other shoe drops, a formal personnel action. And if the other shoe is a prosecution referral, the act never becomes relevant. The whistleblower is defenseless.”