For Immediate Release:

April 5, 2019

Government Accountability Project Condemns DHS Efforts to Gag Employees

WASHINGTON – BuzzFeed News reported yesterday that Chip Fulgham, Department of Homeland Security’s (DHS) under secretary for management, circulated an email on April 4, 2019 to DHS employees warning them not to disclose “nonpublic information” or risk facing “criminal, civil, or administrative consequences.” Government Accountability Project condemns this blatant effort to chill employees from exercising their legal rights to blow the whistle on serious wrongdoing.

According to the article, DHS’s email memo to staff Thursday “concluded by stating ‘unauthorized use or disclosure’ of information does not include protected whistleblower disclosures, which are those communicating evidence of legal violations, gross mismanagement, waste of funds, and other issues. These disclosures can be made through ‘various channels’ but disclosures of classified information or items protected by the Privacy Act must be made to Congress, the Office of Special Counsel, or to an Inspector General Office.” Government Accountability Project has not yet secured a copy of the original email from DHS or BuzzFeed.

This language, if all that was included in the memo regarding employees’ whistleblower rights, is not only deliberately misleading but illegal.

Anti-gag laws require that any non-disclosure policies or forms (which have been interpreted to include email communications, non-disclosure agreements and even threatening “anti-leak” posters) seeking to gag employees speaking must include explicit language noting that an employee’s statutory right to blow the whistle supersedes any speech restrictions.

The Whistleblower Protection Act allows non-intelligence agency employees to disclose, without reprisal, any information that they reasonably believe evidences a violation of law, rule or regulation, gross mismanagement, gross waste of funds, an abuse of authority, or a substantial and specific danger to public health and safety. This protection not only applies to communications with Congress and an Inspector General (IG), but also to media, watchdog organizations, or other law enforcement bodies.

Given that whistleblower disclosures have kept DHS under relentless fire for its abuses at the border, which include endangering children through separation and detention under the execution of a“zero-tolerance” immigration policy, DHS’s attempt to gag its employees from disclosing further evidence of its activities reveals a deliberate attempt to conceal its own wrongdoing.

In 2018, the Office of Special Counsel reminded all executive departments and agencies that it is illegal to interfere with employees’ rights to blow the whistle on serious concerns or to communicate with Congress, warning that “The risk that agency monitoring will discourage protected whistleblowing is not limited to contact with OSC or IGs, as employees may disclose most types of information outside of these channels, e.g., to agency leadership, to officials outside their chain of command, to Congress, or to the media.”

If the email to employees failed to include the mandated language explaining that whistleblower rights supersede any speech restrictions, then DHS willfully ignored the warnings of the OSC and issued an illegal directive. But even if the gag order did include the required language, the email has likely already had its intended effect: to scare employees into staying silent rather than exercising their long-standing whistleblower rights.

Government Accountability Project cares deeply about this issue, having challenged repeated efforts by agencies across the government to illegally chill employee speech. But as attorneys for DHS whistleblowers, we are particularly concerned about DHS’s apparent effort to scare employees from exercising their rights to disclose matters of deep concern to the public interest.  

Government Accountability Project’s Senior Counsel and Director of Education, Dana Gold, expressed outrage over DHS’s effort to gag its employees, stating:

“Whistleblowers’ disclosures about the harm to children posed by the administration’s separation and detention practices under the “zero-tolerance” immigration policy have been essential to calling attention to DHS’s failure to protect vulnerable and innocent migrant children at the border. We need whistleblowers now more than ever, and federal employees are in the best position to promote compliance with the law, prevent serious harm and abuses, and inspire oversight. Chilling employees who frequently don’t understand their whistleblower rights is both dangerous to democracy and, in light of DHS’s known abuses, may result in real harm that could be prevented by whistleblowers.”

Contact: Dana Gold, Senior Counsel and Director of Education

Email: danag@whistleblower.org

Phone: (202) 457-0034 x160

Government Accountability Project

Government Accountability Project is the nation’s leading whistleblower protection organization. Through litigating whistleblower cases, publicizing concerns and developing legal reforms, Government Accountability Project’s mission is to protect the public interest by promoting government and corporate accountability. Founded in 1977, Government Accountability Project is a nonprofit, nonpartisan advocacy organization based in Washington, D.C.

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