Two Congressmen are encouraging federal employees to speak out against the Trump administration. They have released a new guide to encourage whistleblowers to speak out and defy orders from the new administration which they say has “strapped a muzzle on federal agencies and attacked legitimate whistleblowers.”
Congressmen Don Beyer (D-VA) and Ted Lieu (D-CA) released the guide (included below) which they said is “a resource for the safe and responsible disclosure of information.”
Probably not coincidentally, it was released on the same day that President Trump vowed to punish those who leaked classified information in the situation surrounding the resignation of Michael Flynn. See Leaking Information, Federal Employees and Political Ideology
Media reports have noted that federal employees have been openly defying the Trump administration through various means. One resource utilized by employees in at least one agency was the use of encrypted chat programs such as Signal to communicate securely without being tracked by the government.
These tactics have begun to get the attention of lawmakers, however. The House Committee on Science, Space and Technology just this week asked the EPA’s IG to look into reports that EPA employees were using these encrypted messaging apps. Depending on what is found, a full scale investigation could be launched.
Ironically, Beyer and Lieu encouraged federal employees in their guide to use these encrypted messaging apps despite the House Committee beginning to probe the situation. It states, “Chat apps that employ end-to-end encryption are a safe bet, like WhatsApp, Signal, or Telegram.”
Playing With Fire
The Congressmen state in their guide that “The First Amendment provides qualified protection of federal employees’ rights to speak as private citizens on matters of public concern.” However, even the Congressmen later admit that “If the government is able to prove that your speech disrupts the workings of government or the Agency’s ability to function, you may find yourself on the losing side of a First Amendment retaliation suit.”
I wrote recently about practices federal employees were employing to express their frustrations with their new boss in the White House.
In that article, I cited a Supreme Court case which found that free speech by a public official is protected if that individual is engaged as a private citizen, but it is not protected if the opinions are expressed as part of his/her public duties.
I also cited a blog post by ACLU attorney Esha Bhandari who discussed the Supreme Court case and what federal employees have a right to say both at work and as private citizens. One thing she said in her post was:
It’s certainly understandable why many people are alarmed over communications bans on the important work of our federal agencies, particularly where the public needs to know about critical government functions. However, one of the consequences of the election is that the new administration now controls what federal agencies say and what side of an issue they take in a debate about, for example, climate change or reproductive rights.
What the government cannot do is impose an overbroad muzzle on its employees that prevents them from speaking out at all.
The Congressmen seem to be suggesting in their guide that the latter case is taking place, that an “overbroad muzzle” is being imposed on the federal workforce.
Becoming a Whistleblower
FedSmith.com author Ralph Smith recently wrote in his article Do You Have What It Takes to be a Whistleblower? that it is not sufficient for a federal employee to simply declare himself to be a whistleblower:
While an individual may consider his personal actions qualifying him as a whistleblower, a self-declaration does not automatically guarantee legal protection. Generally, a federal agency violates the Whistleblower Protection Act if it takes or fails to take (or threatens to take or fail to take) a personnel action with respect to any employee or applicant because of:
- any disclosure of information by the employee or applicant that he or she reasonably believes evidences a violation of a law, rule or regulation;
- gross mismanagement;
- gross waste of funds;
- an abuse of authority;
- or a substantial and specific danger to public health or safety.
FedSmith.com author and founding partner of the law firm Tully Rinckey PLLC Mathew Tully wrote in his article Proving Retaliation is ‘In Reprisal For’ Blowing the Whistle that the burden of proof of proving that retaliation against an agency whistleblower is most often on the employee himself as opposed to the agency.
“The decision to blow the whistle and disclose agency misconduct can be a daunting task, especially in light of the possibility of retaliation. It can be even more daunting trying to subsequently prove such retaliation,” wrote Tully.
Both Smith and Tully said in their articles that federal employees who are considering blowing the whistle on their agencies would be well advised to get advice from a lawyer experienced in federal whistleblowing cases before proceeding. Nobody said that standing up for what you believe in will always be easy, but doing so carefully and according to a predetermined plan is generally a wise course of action.
Here is another point to ponder: if you decide to speak out against the new administration or your agency and find yourself on the losing end of a lawsuit, you have something to lose: your job as a federal employee. If it happens to involve classified information, you could find yourself in jail or on the run from the government (anyone remember Edward Snowden?).
Congressmen Beyer and Lieu are not going to be the subject of a First Amendment lawsuit that could upend their lives if you decide to follow their advice but end up getting burned in the process. In fact, they may well remain in Congress until they decide to retire.
While their guide was probably written with good intentions, the legal ramifications surrounding what they are suggesting has the potential to upend lives and careers. Caveat emptor.