Gag orders are still hampering federal whistleblowers

Donald Trump is no longer president, but Washington’s problems with nondisclosure agree- ments 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 counsel 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.