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What would you do if you worked for an impetuous blunderbuss who ordered an action of dubious legality?
More precisely, when, if ever, do federal employees have the right to disregard a presidential order or administration policy?
That question became relevant with people here and abroad in a mighty uproar over President Donald Trump’s immigration order. It shamed the nation by temporarily restricting immigration from certain Muslim majority countries — an action that one judge after another blocked.
Officials who detained some of the foreign citizens “were following illegal orders,” said Louis Clark, chief executive of the Government Accountability Project. “Those federal agents could have refused to do so.”
But civil servants don’t make policy, they implement it. And deciding to defy even an illegal order is risky. While the resisting employee might be right on the law, the danger of revenge is major, particularly from an administration led by a man whose New York-size ego seems unable to countenance criticism or admit error.
That was demonstrated by White House press secretary Sean Spicer’s rebuke of State Department employees using a long established “Dissent Channel” to voice their opposition to the travel ban: “Either get with the program or they can go.”
Sally Yates didn’t get with the program and now she’s gone. In another disturbing episode of this debacle, Trump fired her late Monday after Yates, the now former acting attorney general and Obama administration holdover, said in a memo that the Justice Department will not defend Trump’s order in court. She was not convinced his directive is “consistent with this institution’s solemn obligation to always seek justice and stand for what is right.”
As Yates quickly learned, standing up for what is right can have consequences. Federal employees know they can be right and right out of a job.
“The golden rule remains ‘comply now, complain later,’ even where there is substantial reason to believe that an order or policy is improper, or an employee can face discipline or removal for a charge of insubordination,” cautioned Debra D’Agostino, founding partner the Federal Practice Group that provides feds with legal counsel. “Under current MSPB [Merit Systems Protection Board] case law, the employee must obey an order, and then challenge its validity, except in ‘extreme or unusual circumstances’ in which the employee would be placed in a clear danger or which would cause irreparable harm to the employee, or, presumably, the safety of the public.”
A federal judge in New York did block action against deportations based on the order because the government could not guarantee the foreigners would be safe from irreparable harm if deported.
“Ultimately,” D’Agostino continued, “a federal employee may have to make a judgment call like any private sector employee would as to whether the benefits of the job override the employee’s personal objection to the employer’s policies and agenda.”
There are some safeguards, however, for federal employees who refuse to carry out illegitimate orders and more are on the way. Currently, a whistleblower protection law shields those who reveal they have been told to break a law, but they are left unguarded if they have been told to break a regulation.
Coincidentally — but right on time — the House Oversight and Government Reform Committee will consider bipartisan legislation on Tuesday that would fix that by closing “a gap in whistleblower protections [that] is threatening their ability to stand up for what is right,” said Rep. Sean Duffy, R-Wis., when he introduced the bill with Rep. Gerald E. Connolly, D-Va., last year.
Added Connolly: “The Follow the Rules Act will close a loophole that undermines whistleblower protections for federal employees. Federal employees who defy a supervisor’s direction to violate rules and regulations should not be subject to retaliation.”
Furthermore, Tom Devine, GAP’s legal director, points out that “the Government Employee Code of Ethics, on the wall of every agency, declares that government workers must put loyalty to the law and the country ‘above loyalty to persons, party, or Government Department.'”
That includes loyalty to Donald J. Trump.
In an informal email survey, federal employees and retirees were cautious, with some, but not all, saying they would refuse an illegal order.
“I can disagree with the policy, but once the decision is made I owe the people an apolitical response — or resign,” said Ray Levesqu, a Defense Department employee. Doing otherwise, “would violate the public trust of an apolitical civil service system that MUST serve any president whether we agree with his/her policies or not.”
Paul Davison, a retired Air Force civilian attorney in Kathleen, Georgia, said if a policy violated the Constitution, statutes or regulations, “I would have an obligation to refuse, recognizing that this administration in particular seems less inclined to tolerate any dissent.”
Current employees willing to resist were not willing to acknowledge it openly, given the risk of reprisal.
“I am sick to my stomach and have trouble sleeping already over this ‘President’ and his misguided ‘policies,'” said one worker who did not want to be identified. “The major concern I believe I and other government employees have is the carelessness and impulsiveness with which life-changing decisions are being made without debate or common sense at the highest level of government. . . . Yes I will disregard ill-conceived policy. But not to the extent of losing my livelihood. I have bills to pay like everyone else.”
Another who would resist, depending how the order “affected the world in general,” was succinct about Trump: “He ain’t the boss of me.”