Thursday, December 15, 2016

Trump’s non-disclosure agreements could violate the Whistleblower Protection Enhancement Act

Josh Marshall reported last week in Talking Points Memo that president-elect Trump has been requiring prospective transition team employees to sign “non-disclosure agreements” or NDAs. Mr. Marshall writes, “There are probably a number of reasons why such contracts would either violate federal law or be unenforceable. (Lawyers with relevant government experience, please chime in.)”

Indeed, the 2012 Whistleblower Protection Enhancement Act (WPEA) makes it unlawful for any federal employee who has authority to take, direct others to take, recommend, or approve any personnel action to:
implement or enforce any nondisclosure policy, form, or agreement, if such policy, form, or agreement does not contain the following statement:
“These provisions are consistent with and do not supersede, conflict with, or otherwise alter the employee obligations, rights, or liabilities created by existing statute or Executive order relating to (1) classified information, (2) communications to Congress, (3) the reporting to an Inspector General of a violation of any law, rule, or regulation, or mismanagement, a gross waste of funds, an abuse of authority, or a substantial and specific danger to public health or safety, or (4) any other whistleblower protection. The definitions, requirements, obligations, rights, sanctions, and liabilities created by controlling Executive orders and statutory provisions are incorporated into this agreement and are controlling.”
5 U.S.C. § 2302(b)(13)
If any transition official is already on the government payroll and is implementing or enforcing NDAs that omit the required text, that would be a violation. If the transition team is collecting NDAs now that omit the required text, then it would be unlawful for the Trump Administration to enforce them.

The Whistleblower Protection Act (WPA) already protects the rights of most federal employees to make lawful disclosures about:
(i) any violation of any law, rule, or regulation, or 
(ii) gross mismanagement, a gross waste of funds, an abuse of authority, or a substantial and specific danger to public health or safety[.] 
5 U.S.C. § 2302(b)(8)(A)
Covered federal employees also have protection for:
(A) the exercise of any appeal, complaint, or grievance right granted by any law, rule, or regulation ***
(B) testifying for or otherwise lawfully assisting any individual ***;
(C) cooperating with or disclosing information to the Inspector General of an agency, or the Special Counsel, in accordance with applicable provisions of law; or
(D) for refusing to obey an order that would require the individual to violate a law;
5 U.S.C. § 2302(b)(9)
On this last point, the House of Representatives recently passed the Follow the Rules Act, HR 6186, which would also protect federal employees who refuse to violate any rule or regulation.  The bill was waiting for action by the Senate, but will now have to be re-introduced.

Congress intended the WPA to provide broad protection for federal employees who stand up to protect taxpayers, the environment, or the integrity of the law.  An administration interested in draining the swamp will depend on whistleblowers to finish the job.


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