case law update

Representatives Lieu and Beyer Release Guidance on Federal Employees Sharing Information with Public

On Thursday, February 16, 2017, Representatives Ted Lieu (D-CA) and Don Beyer (D-VA) released guidance for federal employees who may want to break the Trump administration’s “blackout” on federal agency communications with the press. 

The guide, which encourages employees to know their rights and options, provides advice to federal employees on how to “safely disseminate information to agency inspectors general and the press.”

Representative Lieu stated “We believe the American people have a right to know how their government works. The Trump administration has strapped a muzzle on federal agencies and attacked legitimate whistleblowers. Should federal employees wish to break that silence, we want this to be a resource for the safe and responsible disclosure of information.”

Representative Beyer also submitted a statement accompanying the release of the guide, stating “From day one the Trump Administration and its allies in Congress have treated the federal workforce like a punching bag, all while issuing hostile threats to whistleblowers and dissenters. In this age of gag orders and alternative facts, it’s important that we provide federal employees tools to ensure transparency. I look forward to working with Congressman Lieu in support of good government and federal workers.”

The guidance references two rights afforded to federal employees: 1) the constitutional right of freedom of speech via the First Amendment’s “qualified protection of federal employees’ rights to speak as private citizens on matters of public concern; and 2) the protections from retaliation afforded to federal employees who make protected disclosures under the Whistleblower Protection Enhancement Act [emphasis added].

As the guidance of Representatives Lieu and Beyer stated, First Amendment protections for federal employees are “qualified,” not absolute. That means not all of your speech related to your federal job is protected by the first Amendment, and the speech not protected can be the subject of disciplinary action.

There is substantial precedent concerning the “qualified” protection of the First Amendment enjoyed by federal employees. In 2006, the United States Supreme Court decided Garcetti v. Ceballos, 547 U.S. 410 (2006), the case that serves as a current fulcrum for issues of federal employee speech. The decision in Garcetti notes that the First Amendment “limits the ability of a public employer to leverage the employment relationship to restrict, incidentally or intentionally, the liberties employees enjoy in their capacities as private citizens.” But while the First Amendment can work to limit the Government’s restriction of employee speech, it cannot completely preclude agencies from using the administrative process to penalize employees for criticizing the government.

In order to defeat a disciplinary action proposed as a result of speech and apply First Amendment protections, a federal employee’s speech must satisfy the two prongs of the test articulated in Garcetti. The first prong is whether the employee is speaking on a matter of public concern. According to the Supreme Court in Connick v. Myers, 461 U.S. 138 (1983), matters of public concern include speech considered to be relating to “any matter of political, social, or other concern to the community.” In Connick, however, the Court also stated that the employee’s speech regarding transfer policies within the office was not a matter of public concern, and conveyed “no information at all other than the fact that a single employee is upset with the status quo.” The Merit Systems Protection Board in Smith v. Department of Transportation, 106 M.S.P.R. 59 (2007) considered an additional layer in determining whether speech was a matter of public concern: the motivation of the speaker, finding that an employee’s speech regarding a hostile work environment for African-American employees in his federal workplace could be a matter of public concern, but that the publicity of his speech was motivated by a personal campaign to have another employee terminated, and that the speech was limited to the employee’s own situation. Therefore, the personal nature of the speech and the employee’s personal motivation for making it caused him to lose the protection of the First Amendment in contesting discipline imposed on him. 

In sum, in order to show that the speech at issue was a matter of public concern, and to retain First Amendment protection for public speech, the federal employee’s speech must be related to a matter of concern to the community (something more than dissatisfaction with personal mistreatment) that rises to the level of public, not individual, concern.

The second prong of the Garcetti test is whether the employee’s speech is made as a private citizen, or in his or her official capacity. The Supreme Court concluded in Garcetti that “When public employees make statements pursuant to their official duties, the employees are not speaking as citizens for First Amendment purposes, and the Constitution does not insulate their communications from employer discipline. Restricting speech that owes its existence to a public employee’s professional responsibilities does not infringe any liberties the employees might have enjoyed as private citizen. It simply reflects the exercise of employer control over what the employer itself has commissioned or created.”

If public speech bears the appearance of official status or significance, it can be deemed pursuant to an employee’s official duties. If a federal employee speaks publicly in a newspaper, and the newspaper attributes the comment to “John Doe, Director of Personnel, Department of Agriculture,” it may be deemed that the speech bears “the appearance of official status or significance,” and that the employee has therefore made statements pursuant to his official duties. If it’s found that an employee has made comments pursuant to his official duties, those comments may lose First Amendment protection. Similarly, if an employee wears paraphernalia which associates the employee with the employing agency (such as a uniform, badge, or other governmental ID) when speaking, that employee may lose First Amendment protection.

The guidance published by Representatives Lieu and Beyer also suggests that federal employees who wish to submit information to the press use encrypted chat apps to do so. There have also been reports that some executive branch employees are using the encrypted and self-destructing chat app Confide. But federal employees must be careful. White House staff who use encrypted chat apps may be in violation of the Presidential Records Act, and executive branch employees generally may be in violation of the Federal Records Act if using the chat app to have work-related conversations, or may create the appearance of a violation (misconduct in and of itself) by using such chat apps with their colleagues, even if the conversations are not work-related. The National Archives and Records Administration (“NARA”) provides guidance of Presidential and Federal records, and in the past communicated with the State Department about the e-mail records of former Secretary of State Hillary Clinton due to concerns about the preservation of e-mail records. Chat apps that obscure or destroy communications between federal employees regarding work-related issues raise the same legal concerns.

Another option presented by Representatives Lieu and Beyer is the option of reporting waste, fraud, and abuse to your federal agency’s Inspector General. But it’s important to note that while the Inspector General Act allows receipt of anonymous complaints, and pledges the confidentiality of all individuals who file a complaint with the OIG, there are caveats. The OIG can disclose the identity of an individual who files a complaint with the consent of the individual, or if “the Inspector General determines such disclosure is unavoidable during the course of the investigation.” And anonymous complaints are met with their own challenges, such as the inability to contact the complainant for further information or clarification if deemed necessary.

Read the guidance issued by Representatives Lieu and Beyer: Speaking Truth to Power

 


This case law update was written by Conor D. Dirks, associate attorney, Shaw Bransford & Roth, PC.

For thirty years, Shaw Bransford & Roth P.C. has provided superior representation on a wide range of federal employment law issues, from representing federal employees nationwide in administrative investigations, disciplinary and performance actions, and Bivens lawsuits, to handling security clearance adjudications and employment discrimination cases.

Posted in Case Law Update

Tags: Congress, Donald Trump

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