04.02.2014

Grassley: Federal Agencies Failing to Implement Anti-gag Provision of Whistleblower Law

WASHINGTON – The Obama administration is forcing employees to sign written pledges of secrecy, known as a nondisclosure agreements, without including the whistleblower exceptions mandated by law, according to a congressional review by U.S. Senator Chuck Grassley, Ranking Member of the Senate Judiciary Committee. These non-disclosure agreements restrict information about waste, fraud, and about from flowing to proper authorities outside the agency, including to Congress.

In his review, Grassley asked all fifteen executive branch departments to document their implementation of the anti-gag provisions of the Whistleblower Protection Enhancement Act. Grassley said that the review revealed that most of the departments’ nondisclosure agreements violate the provision of the Whistleblower Protection Enhancement Act. The law requires such agreements to contain an explicit statement notifying employees the agreement does not trump an employee’s rights and obligations under the law relating to communications to Congress, reporting misconduct to an Inspector General, or any other whistleblower protections.

Only the Treasury Department was able to document implementation of the anti-gag provision. Grassley found that eight departments were able to document only partial implementation, and two others were unable to demonstrate even partial compliance. There were four departments, including the Justice Department, that did not bother to respond to Grassley’s inquiry.

“Federal employees have rights and obligations to report wrongdoing to Congress or Inspectors General. And, even though federal law protects their right to do so, employees are led to believe that they have signed away their rights to speak outside the chain of command. As a result, employees witnessing wrongdoing often remain silent,” Grassley said. “The taxpaying public has a right to know about the government’s dirty laundry.”

Grassley forwarded his findings to Carolyn Lerner at the Office of Special Counsel. Grassley requested that Lerner consider adding compliance with the anti-gag statute as a criteria for the Special Counsel’s 2302(c) Certification Program.

Grassley championed the anti-gag protections which were adopted in 1988 and were included in successive annual spending bills until last year. In November 2012, the bipartisan Whistleblower Protection Enhancement Act permanently codified in federal law that any violation of the anti-gag provision is a prohibited personnel practice.

Here’s a link to Grassley’s report on the executive branch departments’ compliance with the anti-gag provisions of the Whistleblower Protection Enhancement Act.

Here’s a link to Grassley’s letter to Special Counsel Carolyn Lerner.

An op-ed by Grassley also ran in The Hill newspaper. Here’s a copy of the op-ed.

Let the sun shine in
By Sen. Chuck Grassley (R-Iowa)

Sweeping dirt under the rug violates the golden rule of Housekeeping 101. Out of sight may be out of mind, but covering it up doesn’t make it clean. The same is true in government. And yet, the federal bureaucracy thumbs its nose at this common-sense principle.

Agencies don’t just encourage conscientious employees to sweep unpleasant truths under the rug. Many agencies actually force employees to sign on the dotted line, a written pledge to keep quiet, called a “nondisclosure agreement,” or NDA. These NDAs can seem deceptively legitimate. However, agencies often require employees to agree to these gag orders without informing them of their rights and obligations to report wrongdoing to Congress or inspectors general.

Even though federal law protects their right to do so, employees are led to believe that they have signed away their rights to speak outside the chain of command. As a result, employees witnessing wrongdoing often remain silent.