Donald Trump is no longer president, but Washington\u2019s problems with nondisclosure agreements remain.<\/p>\n
The Office of Special Counsel (OSC) is forcefully instructing federal agencies and employees that NDAs do not supersede whistleblower rights.<\/p>\n
But first, when writing about the OSC, an agency with a confusing name that\u2019s led by special counsel Hampton Dellinger, it\u2019s important to note that this is not a Justice Department special counsel, like Jack Smith, who is prosecuting Trump\u2019s classified documents case. OSC says its \u201cprimary mission is to safeguard the merit system by protecting federal employees and applicants from prohibited personnel practices \u2026 especially reprisal for whistleblowing.\u201d<\/p>\n
That\u2019s why OSC, an independent investigative and prosecutorial agency, is keen to let government folks know what NDAs can\u2019t do. In the past 12 months, the office has secured more than 25 actions from agencies to correct anti-gag order violations.<\/p>\n
The Whistleblower Protection Enhancement Act is clear. \u201cNo agency can seek, through an NDA or otherwise, to chill such communications,\u201d according to an OSC statement last week. The headline on the statement was emphatic: \u201cOSC Strongly Enforces the Prohibition Against Employee Gag Orders that Chill Whistleblowing.\u201d<\/p>\n
NDAs are not prohibited, but agencies must inform employees that those agreements do not prevent them from reporting waste, fraud and abuse. \u201cNDAs must inform federal employees of their overriding right to communicate with Congress, Inspectors General, and OSC,\u201d the OSC statement said.<\/p>\n
Agencies use gag orders because \u201ccontrolling the flow of information is the key to avoiding accountability that\u2019s unwanted,\u201d said Tom Devine, legal director of the nonprofit Government Accountability Project that works with whistleblowers. Gag orders are \u201cmore destructive than retaliation [against whistleblowers],\u201d he added, \u201cbecause the information never gets out in the first place.\u201d<\/p>\n
Gag orders also have \u201chuge consequences for the public, who need to know that our government is \u2026 serving in the people\u2019s best interest above all,\u201d said Joe Spielberger, policy council for POGO, the Project on Government Oversight. Among several Trump administration examples, Spielberger cited the 2019 \u201cSharpie-gate\u201d controversy, when federal weather officials \u201cwere pressured by political appointees to undermine their own forecasters after Trump doctored the Hurricane Dorian map.\u201d<\/p>\n
One of the cases cited by OSC involves a Justice Department agency that gagged National Association of Immigration Judges (NAIJ) union leaders.<\/p>\n
In a February email to New York-based immigration Judge Mimi Tsankov, the union president, and Judge Samuel Cole, the union\u2019s executive vice president in Chicago, Sheila McNulty, the chief immigration judge in the department\u2019s Executive Office for Immigration Review (EOIR), said they are prohibited from making public statements \u201cwithout supervisory approval and any Speaking Engagement Team review your supervisor believes necessary.\u201d<\/p>\n
That warning came after Tsankov in October told a Senate Judiciary immigration subcommittee hearing that \u201cDemocrat and Republican administrations share the failure of the DOJ\u2019s immigration court management,\u201d saying \u201cimmigration courts have faced structural deficiencies, crushing caseloads, and unacceptable backlogs for many years.\u201d Matt Biggs, president of the International Federation of Professional and Technical Engineers (IFPTE), NAIJ\u2019s parent union, cited Tsankov\u2019s congressional testimony as an example of giving \u201cjudges a voice\u201d that\u2019s now silenced.<\/p>\n
McNulty referred to a controversial and hotly contested Trump administration action that led to the decertification of the immigration judges\u2019 union, when she wrote \u201cany bargaining agreement \u2026 that may have existed previously is not valid at present.\u201d<\/p>\n
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 \u201cgroup\u201d and not a recognized labor organization. IFPTE has asked the Biden administration to reverse the immigration review office\u2019s \u201cinappropriate and misguided application of the agency speaking engagement policy.\u201d<\/p>\n
This must be an embarrassment to proudly pro-union President Biden, who reversed other anti-federal labor organization policies put in place under Trump.<\/p>\n
McNulty\u2019s action drew heated reaction from three Republicans who often vote against union interests. \u201cThe Committee takes seriously the Department\u2019s effort to silence immigration judges,\u201d 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 \u201cto silence immigration judges \u2026 is absolutely unacceptable.\u201d<\/p>\n
Grassley also noted that McNulty\u2019s order \u201cfailed to include the anti-gag provision as required by law.\u201d<\/p>\n
That\u2019s a key point in the Office of Special Counsel\u2019s notice.<\/p>\n
\u201cOne of the bright lines,\u201d Dellinger said during a telephone interview, \u201cis that no federal workplace policy, including a nondisclosure agreement, can run afoul of an employee\u2019s right to report wrongdoing or public safety threats to Congress, inspectors general or my office.\u201d To that list of reporting venues, an OSC video adds \u201cand the media.\u201d<\/p>\n
Without naming any individual or the immigration judges\u2019 union, Dellinger\u2019s press release criticized Justice\u2019s immigration review office for \u201cviolations of the anti-gag provision.\u201d 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\u2019s office.<\/p>\n
Nonetheless, during separate phone calls, Tsankov and Cole refused to discuss their situations. \u201cI\u2019m just not allowed to speak to you,\u201d said Cole, echoing Tsankov.<\/p>\n
In recent months, the OSC has also successfully pressed other agencies to back down from NDA policies hampering employees.<\/p>\n
OSC said the Defense Commissary Agency, which operates military groceries, agreed to withdraw \u201ca policy requiring all employees to channel \u2018any and all\u2019 workplace issues through their supervisor and forbidding any contact with upper management without use of the chain of command.\u201d<\/p>\n
And the Department of Veterans Affairs, according to Dellinger\u2019s office, agreed to rescind an employee\u2019s letter of reprimand that \u201cdid not contain the mandated language concerning whistleblower rights and improperly penalized the employee for not using official channels when he questioned agency practices.\u201d<\/p>\n
Although the VA has a history of complaints from whistleblowers, VA press secretary Terrence Hayes said in response that a \u201ctop department priority is \u2026 building a culture where every employee feels empowered and unafraid to raise concerns without fear of reprisal. We welcome feedback here at VA \u2014 it makes us better \u2014 and we encourage employees to come forward with their concerns without fear of reprisal.\u201d<\/p>\n
He also said the \u201cnumber of VA whistleblower retaliation cases reviewed by the Office of the Special Counsel has decreased by 42 percent since 2018.\u201d<\/p>\n
Justice Department and Defense Commissary Agency officials did not respond to requests for comment.<\/p>\n
Biggs called the Justice Department office\u2019s policy \u201can outrageous act of censure and an attack on freedom of the press and transparency.\u201d<\/p>\n
\u201cIntentionally or not,\u201d he added, the directive \u201cresulted in a not-so-subtle message to rank-and-file immigration judges to think carefully before talking to congressional lawmakers as whistleblowers or otherwise.\u201d<\/p>\n<\/p>\n
Donald Trump is no longer president, but Washington\u2019s 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\u2019s led by special counsel Hampton Dellinger, it\u2019s important […]<\/p>\n","protected":false},"author":0,"featured_media":3057,"comment_status":"closed","ping_status":"closed","sticky":false,"template":"","format":"standard","meta":{"footnotes":""},"categories":[5],"tags":[],"class_list":["post-3056","post","type-post","status-publish","format-standard","has-post-thumbnail","hentry","category-politics"],"_links":{"self":[{"href":"https:\/\/businesstriumphs.com\/index.php\/wp-json\/wp\/v2\/posts\/3056","targetHints":{"allow":["GET"]}}],"collection":[{"href":"https:\/\/businesstriumphs.com\/index.php\/wp-json\/wp\/v2\/posts"}],"about":[{"href":"https:\/\/businesstriumphs.com\/index.php\/wp-json\/wp\/v2\/types\/post"}],"replies":[{"embeddable":true,"href":"https:\/\/businesstriumphs.com\/index.php\/wp-json\/wp\/v2\/comments?post=3056"}],"version-history":[{"count":0,"href":"https:\/\/businesstriumphs.com\/index.php\/wp-json\/wp\/v2\/posts\/3056\/revisions"}],"wp:featuredmedia":[{"embeddable":true,"href":"https:\/\/businesstriumphs.com\/index.php\/wp-json\/wp\/v2\/media\/3057"}],"wp:attachment":[{"href":"https:\/\/businesstriumphs.com\/index.php\/wp-json\/wp\/v2\/media?parent=3056"}],"wp:term":[{"taxonomy":"category","embeddable":true,"href":"https:\/\/businesstriumphs.com\/index.php\/wp-json\/wp\/v2\/categories?post=3056"},{"taxonomy":"post_tag","embeddable":true,"href":"https:\/\/businesstriumphs.com\/index.php\/wp-json\/wp\/v2\/tags?post=3056"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}