A report released today by Senator Charles Grassley, Ranking Member of the Senate Judiciary Committee, reveals that most of the fifteen executive branch departments’ nondisclosure agreement policies violate the Whistleblower Protection Enhancement Act. The law requires such agreements to contain an explicit statement notifying employees the agreements do not trump an employee’s rights and obligations under the law relating to communications to Congress, reporting misconduct to an Inspector General, or any other whistleblower protections.
According to the report the Treasury Department was the only one that was able to document implementation of the anti-gag provision. Eight departments were able to document only partial implementation, and two others were unable to demonstrate even partial compliance. Four departments, including the Justice Department, did not to respond to Grassley’s inquiry.
Senator Grassley forwarded his report to Carolyn Lerner at the Office of Special Counsel and requested that she consider adding compliance with the anti-gag statute as a criteria for the Special Counsel’s 2302(c) Certification Program.
Senator Grassley championed the anti-gag protections that were adopted in 1988 and were included in successive annual spending bills until last year. In November 2012, the bipartisan Whistleblower Protection Enhancement Act permanently codified in federal law that any violation of the anti-gag provision is a prohibited personnel practice.
In response to Sen. Grassley’s report, Stephen M. Kohn, Executive Director of the National Whistleblower Center, made the following statement:
“Gag orders have a devastating impact on the public’s right to know about fraud in government. The Whistleblower Protection Enhancement Act provisions must be aggressively enforced. Senator Grassley’s report is a critical first step in pushing the federal government to implement its own laws.
Federal bureaucrats want to keep their misconduct secret. Gag orders, which have a chilling effect on employees, are now illegal and any bureaucrat who attempts to have an employee sign an illegal non-disclosure agreement should be severely disciplined.”