Donald Trump is no longer president, but Washington’s problems with nondisclosure agreements remain.
The Office of Special Counsel (OSC) is forcefully instructing federal agencies and employees that NDAs do not supersede whistleblower rights.
But first, when writing about the OSC, an agency with a confusing name that’s led by special counsel Hampton Dellinger, it’s important to note that this is not a Justice Department special counsel, like Jack Smith, who is prosecuting Trump’s classified documents case. OSC says its “primary mission is to safeguard the merit system by protecting federal employees and applicants from prohibited personnel practices … especially reprisal for whistleblowing.”
That’s why OSC, an independent investigative and prosecutorial agency, is keen to let government folks know what NDAs can’t do. In the past 12 months, the office has secured more than 25 actions from agencies to correct anti-gag order violations.
The Whistleblower Protection Enhancement Act is clear. “No agency can seek, through an NDA or otherwise, to chill such communications,” according to an OSC statement last week. The headline on the statement was emphatic: “OSC Strongly Enforces the Prohibition Against Employee Gag Orders that Chill Whistleblowing.”
NDAs are not prohibited, but agencies must inform employees that those 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 OSC,” the OSC statement said.
Agencies use gag orders because “controlling the flow of information is the key to avoiding accountability that’s unwanted,” said Tom Devine, legal director of the nonprofit Government Accountability Project that works with whistleblowers. Gag orders are “more destructive than retaliation [against whistleblowers],” he added, “because the information never gets out in the first place.”
Gag orders also have “huge consequences for the public, who need to know that our government is … serving in the people’s best interest above all,” said Joe Spielberger, policy council for POGO, the Project on Government Oversight. Among several Trump administration examples, Spielberger cited the 2019 “Sharpie-gate” controversy, when federal weather officials “were pressured by political appointees to undermine their own forecasters after Trump doctored the Hurricane Dorian map.”
One of the cases cited by OSC involves a Justice Department agency that gagged National Association of Immigration Judges (NAIJ) union leaders.
In a February email to New York-based immigration Judge Mimi Tsankov, the union president, and Judge Samuel Cole, the union’s executive vice president in Chicago, Sheila McNulty, the chief immigration judge in the department’s Executive Office for Immigration Review (EOIR), said they are prohibited from making public statements “without supervisory approval and any Speaking Engagement Team review your supervisor believes necessary.”
That warning came after Tsankov in October told a Senate Judiciary immigration subcommittee hearing that “Democrat and Republican administrations share the failure of the DOJ’s immigration court management,” saying “immigration courts have faced structural deficiencies, crushing caseloads, and unacceptable backlogs for many years.” Matt Biggs, president of the International Federation of Professional and Technical Engineers (IFPTE), NAIJ’s parent union, cited Tsankov’s congressional testimony as an example of giving “judges a voice” that’s now silenced.
McNulty referred to a controversial and hotly contested Trump administration action that led to the decertification of the immigration judges’ union, when she wrote “any bargaining agreement … that may have existed previously is not valid at present.”
On Nov. 2, 2020, the day before Trump, who waged war on federal unions, lost his reelection bid, the Federal Labor Relations Authority ruled that immigration judges are management employees precluded from union representation. That means, according to McNulty, they cannot speak out as union leaders because she considers their association to be a “group” and not a recognized labor organization. IFPTE has asked the Biden administration to reverse the immigration review office’s “inappropriate and misguided application of the agency speaking engagement policy.”
This must be an embarrassment to proudly pro-union President Biden, who reversed other anti-federal labor organization policies put in place under Trump.
McNulty’s action drew heated reaction from three Republicans who often vote against union interests. “The Committee takes seriously the Department’s effort to silence immigration judges,” wrote Reps. Jim Jordan (R-Ohio) and Tom McClintock (R-Calif.), chairmen of the House Judiciary Committee and its immigration subcommittee, respectively. 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 “failed to include the anti-gag provision as required by law.”
That’s a key point in the Office of Special Counsel’s notice.
“One of the bright lines,” Dellinger said during a telephone interview, “is that no federal workplace policy, including a nondisclosure agreement, can run afoul of an employee’s right to report wrongdoing or public safety threats to Congress, inspectors general or my office.” To that list of reporting venues, an OSC video adds “and the media.”
Without naming any individual or the immigration judges’ union, Dellinger’s press release criticized Justice’s immigration review office for “violations of the anti-gag provision.” Following the OSC recommendations, the office agreed to email employees a revised policy that clarifies that they are not restricted from whistleblowing and to hold training sessions by the special counsel’s office.
Nonetheless, during separate phone calls, Tsankov and Cole refused to discuss their situations. “I’m just not allowed to speak to you,” said Cole, echoing Tsankov.
In recent months, the OSC has also successfully pressed other agencies to back down from NDA policies hampering employees.
OSC said the Defense Commissary Agency, which operates military groceries, agreed to withdraw “a policy requiring all employees to channel ‘any and all’ workplace issues through their supervisor and forbidding any contact with upper management without use of 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 the mandated language concerning whistleblower rights and improperly penalized the employee for not using official channels when he questioned agency practices.”
Although the VA has a history of complaints from whistleblowers, VA press secretary Terrence Hayes said in response that a “top department priority is … building a culture where every employee feels empowered and unafraid to raise concerns without fear of reprisal. We welcome feedback here at VA — it makes us better — and we encourage employees to come forward with their concerns without fear of reprisal.”
He also said the “number of VA whistleblower retaliation cases reviewed by the Office of the Special Counsel has decreased by 42 percent since 2018.”
Justice Department and Defense Commissary Agency officials did not respond to requests for comment.
Biggs called the Justice Department office’s policy “an outrageous act of censure and an attack on freedom of the press and transparency.”
“Intentionally or not,” he added, the directive “resulted in a not-so-subtle message to rank-and-file immigration judges to think carefully before talking to congressional lawmakers as whistleblowers or otherwise.”