This is why the OSC, an independent investigation and prosecution agency, is keen to let civil servants know what NDAs cannot do. Over the past 12 months, the office has obtained more than 25 actions from agencies to correct violations of anti-SLAPP orders.
The law aimed at strengthening the protection of whistleblowers is clear. “No agency may seek, through an NDA or otherwise, to deter such communications,” according to an OSC statement last week. The headline of the statement was emphatic: “The OSC firmly enforces the ban on employee gag orders that chill whistleblowing.” »
NDAs are not prohibited, but agencies must inform their employees that these agreements do not prevent them from reporting waste, fraud, and abuse. “NDAs must inform federal employees of their overriding right to communicate with Congress, inspectors general, and the OSC,” the OSC statement said.
Agencies use hush orders because “controlling the flow of information is the key to avoiding unwanted liability,” said Tom Devine, legal director of the nonprofit Government Accountability Project which works with whistleblowers. alert. Gag orders are “more destructive than retaliation (against whistleblowers),” he added, “because the information is never released.”
Gag orders also have “huge consequences for the public, who need to know that our government… serves the best interests of the people above all else,” said Joe Spielberger, policy counsel for POGO, the Project on Government Oversight . Among several examples from the Trump administration, Spielberger cited the 2019 “Sharpie-gate” controversy, when federal weather officials “were pressured by political appointees to undermine their own forecasters after Trump falsified Hurricane Dorian map.
One of the cases cited by the OSC involves a Justice Department agency that gagged union leaders of the National Association of Immigration Judges (NAIJ).
In a February email to New York Immigration Judge Mimi Tsankov, president of the union, and Judge Samuel Cole, executive vice president of the union in Chicago, Sheila McNulty, chief immigration judge at the Executive Office for Immigration Review ( EOIR) of the ministry, declared that they were prohibited from making public statements. without supervisory approval and any review by the speaking assignment team that your supervisor deems necessary.
The warning came after Tsankov told a Senate Immigration Judiciary Subcommittee hearing in October that “both Democratic and Republican administrations share the failure of the Department of Justice’s management of the immigration courts.” Justice,” asserting that “immigration courts have faced structural deficiencies, overwhelming caseloads, and unacceptable backlogs for many years. » Matt Biggs, president of the International Federation of Professional and Technical Engineers (IFPTE), the NAIJ’s parent union, cited Tsankov’s congressional testimony as an example of how to give “a voice to judges” that is now diminished to silence.
McNulty referenced a controversial and hotly contested action by the Trump administration that led to the decertification of the immigration judges’ union, when she wrote that “any bargaining agreement…that may have existed previously does not is not currently valid.
On November 2, 2020, the day before Trump, who waged a war on federal unions, lost his re-election bid, the Federal Labor Relations Authority ruled that immigration judges were executive employees excluded from any union representation. This means, according to McNulty, that they cannot speak out as union leaders because she considers their association a “group” and not a recognized labor organization. IFPTE called on the Biden administration to reverse the Office of Immigration Review’s “inappropriate and misguided application of the agency’s speaker engagement policy.”
This must be embarrassing for the proudly pro-union President Biden, who has rolled back other anti-federal union organizing policies put in place under Trump.
McNulty’s action drew strong reactions from three Republicans who often vote against union interests. “The Committee takes seriously the Department’s efforts to silence immigration judges,” wrote Representatives Jim Jordan (R-Ohio) and Tom McClintock (R-Calif.), respectively chairs of the Judiciary Committee of the House and its Immigration Subcommittee. In a letter to the attorney general, Sen. Chuck Grassley (R-Iowa) said any effort “to silence immigration judges…is absolutely unacceptable.”
Grassley also noted that McNulty’s order “did not include the anti-SLAPP provision required by law.”
This is a key point of the Office of Special Counsel’s opinion.
“One of the bright lines,” Dellinger said in a telephone interview, “is that no federal workplace policy, including a nondisclosure agreement, can go against the law an employee to report wrongdoing or a threat to public safety to Congress, the inspectors general, or my office.” To this list of reporting locations, an OSC video adds “and the media”.
Without naming anyone or the immigration judges’ union, Dellinger’s press release criticized the Justice Department’s Office of Immigration Review for “violations of the anti-SLAPP provision.” Following the In accordance with the OSC’s recommendations, the office agreed to email employees a revised policy that clarifies that they are not restricted from whistleblowing and to hold training sessions through the office of special counsel.
Nonetheless, in separate phone calls, Tsankov and Cole declined to discuss their situation. “I’m just not allowed to talk to you,” Cole said, echoing Tsankov.
Over the past few months, the OSC has also successfully pressured other agencies to abandon NDA policies that inconvenience employees.
The OSC said the Defense Commissioners Agency, which runs military grocery stores, agreed to withdraw “a policy requiring all employees to refer ‘all workplace concerns’ to their supervisor and prohibiting any contact with senior management without resorting to the chain of command.
And The Department of Veterans Affairs, according to Dellinger’s office, agreed to rescind an employee’s letter of reprimand that “did not contain required language regarding whistleblower rights and unduly penalized the employee for not used official channels when questioning agency practices.”
Although the VA has a history of whistleblower complaints, VA Press Secretary Terrence Hayes stated in response that a “top priority of the department is… to build a culture in which every employee feels empowered and is not afraid to raise concerns without fear of retaliation.” We value feedback here at VA – it makes us better – and we encourage employees to raise concerns without fear of retaliation.
He also said that “the number of VA whistleblower retaliation cases reviewed by the Office of Special Counsel has decreased by 42% since 2018.”
Officials at the Justice Department and Defense Agency did not respond to requests for comment.
Biggs called the Justice Department’s policy “an outrageous act of censorship and an attack on press freedom and transparency.”
“Intentionally or not,” he added, the directive “resulted in a not-so-subtle message to rank-and-file immigration judges, urging them to think carefully before speaking to congressional lawmakers as whistleblowers or otherwise.”
washingtonpost
