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Coalition Letter Urges Special Counsel Kerner to Investigate Justice Department for Whistleblower Law Violations

February 22, 2018
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The Honorable Henry Kerner
Special Counsel
Office of Special Counsel
1730 M St NW
Washington, DC 20036

 

Dear Special Counsel Kerner:

The Make It Safe Coalition, a coalition of organizations concerned with government accountability, transparency and whistleblower protection, request you conduct a sua sponte investigation into the Department of Justice’s violation of anti-gag provisions in the Whistleblower Protection Enhancement Act (WPEA), the Lloyd Lafollette Act of 1912 protecting communications with Congress, and the anti-gag provisions in the FY 2017 Consolidated Appropriations Act (CAA). Collectively, our organizations helped draft, implement, and execute these statutes. We are alarmed at a pattern of actions violating the spirit and letter of these laws

On January 29th, Attorney General Jefferson Sessions issued a memorandum barring “attorneys, officers, boards, divisions, and components” from communicating with “Senators, Representatives, congressional committees, or congressional staff” without prior consultation with the Department of Justice’s (DOJ) Office of Legislative Affairs.[1] This gag order is an unacceptable infringement on DOJ employees’ free speech rights.

As your agency made clear last year, agencies cannot block federal employees from speaking without “including required language that informs employees that their statutory right to blow the whistle supersedes the terms and conditions of the nondisclosure agreement or policy. (5 U.S.C. §2302(b)(13)).”[2] Both the WPEA and CAA contain language prohibiting Congress from funding agencies that “implement or enforce” any “non-disclosure policy, form, or agreement if such policy, form, or agreement does not contain” provisions reaffirming that employee whistleblower rights are controlling, despite any nondisclosure restrictions.[3] Your agency reads “non-disclosure policy, form, or agreement” to include management communications broadly.[4] This includes management communications like memoranda.

The DOJ memorandum does not include provisions affirming employee whistleblower rights. They have implemented an illegal non-disclosure policy gagging their employees without recognizing those WPEA requirements.

Senate Judiciary Chairman Chuck Grassley has sent a letter to Attorney General Sessions identifying this problem. [5] As the agency charged with enforcing 5 USC §2302(b)(13), we request you investigate this gag order and ensure Attorney General Sessions follows through with Chairman Grassley’s request. Pursuant to 5 USC §1214, we request that you recommend Attorney General Sessions to add the statutorily mandated whistleblower language, or be guilty of a prohibited personnel practice. Further, as Attorney General Sessions’ memorandum claimed to be in line with “past policy and practice,” we ask that you ensure all other DOJ gag orders include mandatory, statutory whistleblower language. 

When an agency unlawfully gags its employees, it threatens Congress’s ability to engage in oversight and hampers citizens’ right to know about waste, fraud, abuse and threats to the public’s health, safety and liberty.

These efforts also create a chilling effect on the many federal employees committed to exercising professional integrity in fulfilling their agencies’ mandates. The Whistleblower Protection Act and the WPEA recognize the essential role whistleblowers play in promoting accountability and transparency in government. Silencing DOJ employees undermines the intent and letter of these laws, which were all passed with unanimous, bipartisan support.

This entire situation is made worse because it is the Department of Justice that has implemented this gag order. This is the agency entrusted to enforce our laws. Instead, it is blatantly violating them.

We hope you take action to investigate and correct this prohibited personnel practice, including calling for Attorney General Sessions to revoke the illegal memorandum.

Sincerely,

Tom Devine, Legal Director
Government Accountability Project

Michael Ostrolenk, National Director
Liberty Coalition

Pete Sepp, President
National Taxpayers Union

Elizabeth Hempowicz, Director of Public Policy
Project On Government Oversight

Shanna Devine, Worker Health and Safety Advocate
Public Citizen

David Williams, President
Taxpayers Protection Alliance

Yogin Kothari, Washington Representative
Union of Concerned Scientists

cc:  Michael Horowitz, Inspector General, Department of Justice


[2] January 25, 2017, “OSC’s Enforcement of the Anti-Gag Order Provision in Whistleblower Law,” https://osc.gov/News/pr17-03.pdf 

[3] 5 USC §2302(b)(13); §§713 and 744, Consolidated Appropriations Act, 2016; Division E, Financial Services and General Government Appropriations Act, 2016; Title  VII, General Provisions, Government-Wide.

[5] February 5, 2018, “Communications with Congress,” https://www.judiciary.senate.gov/imo/media/doc/2018-02-05 CEG to DOJ (Communications with Congress).pdf

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