EPA Whistleblowers Now Free to Speak Out

(Washington, D.C.) – The Government Accountability Project (GAP), counsel for EPA and climate change whistleblowers Laurie Williams and Allan Zabel, sent a letter to President Obama yesterday thanking the White House for causing the EPA to withdraw its censorship orders that effectively gagged the two enforcement attorneys.

Williams and Zabel had challenged “cap-and-trade” as a climate change solution in their personal capacities by, among other actions, posting a video on YouTube late last year. The EPA accused them of violating ethics rules simply by listing and referencing their government positions and experience to strengthen their credibility.

GAP was particularly impressed that White House Ethics Counsel Norm Eisen not only intervened in this specific case, but successfully sought the Office of Government Ethics (OGE) to issue new guidelines against using ethics rules to gag whistleblowers’ noncommercial speech.

After 22 years of intransigence, the EPA also committed to implement and obey the federal anti-gag statute – requiring agencies to include a qualifier to nondisclosure policies. The qualifier makes clear that free speech rights outlined by the Whistleblower Protection Act supersede any restrictions elsewhere in the policy.

“This victory would not have happened without the White House,” stated GAP Legal Director Tom Devine. “Most impressive, the administration delivered on transparency commitments by ending censorship of those criticizing its own policies. At GAP we’re not used to that kind of leadership.”

Rick Piltz, Director of the GAP-sponsored project Climate Science Watch, emphasized the important role of the White House, stating: “The culture in federal agencies of inappropriately restricting communication is dug in. It won’t be changed overnight and it won’t change all by itself. It’s going to take sustained, hands-on White House leadership and oversight.”

Background

Williams and Zabel have worked at the EPA for over 20 years. Zabel has two decades’ worth of experience assisting EPA oversight of Los Angeles’ cap-and-trade program and California’s Clean Air Act offsets. Last November, under threat of discipline, the EPA ordered Williams and Zabel to remove a YouTube video they created to share their concerns on cap and trade. Although their efforts were uncompensated, and they made clear they were speaking in their own capacity, the agency accused them of ethics rules violations. Besides threatening discipline, EPA imposed prior restraint by ordering them to submit future public communications for advance review. The agency reasoned that the pair violated conflict of interest rules by exploiting their titles and experience for personal views.

After Williams and Zabel sought Administration support, White House Ethics Counsel Norm Eisen’s staff checked with OGE and began discussions with relevant EPA officials. Those talks led to OGE issuing a government-wide ethics guideline opinion on 5 CFR 2635.807(b) to instruct agencies that compliance only requires employees to provide disclaimers that they are speaking for themselves and not the government, and to include other biographical details when identifying themselves. OGE explained the rules:

The purpose of section 807(b)(1) and (b)(2), in conjunction with section 702(b), is to ensure that public is not misled as to whether the views expressed by an Executive Branch employee in uncompensated teaching, writing, or speaking are those of the employee or those of the Government. A too literal parsing of either 807(b)(1) or (b)(2) divorced from this broader purpose could lead to unnecessarily restricting employee’s rights of free speech and commentary. OGE believes that when it is clear from the actual language or context of an employee’s teaching, writing, or speaking that the employee is representing personal rather than agency views, the purpose of the specific provisions discussed above has been met. [emphasis added]

EPA then agreed that Williams and Zabel had not violated ethics rules and lifted restrictions. Freed from censorship, last week they thanked the President and EPA, while blowing the whistle to Congress on offsets as part of a cap-and-trade program. Their disclosure can be found here.

Government Accountability Project

 

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

 

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