The Department of Health and Human Services (HHS) issued a memorandum to its employees on May 3, 2017, that gags its employees from speaking with Congress and violates the Whistleblower Protection Enhancement Act of 2012 (WPEA; 5 U.S.C. § 2302(b)(13)). The memorandum was made public today by Senator Charles Grassley (R-IA) and Representative Jason Chaffetz (R-UT).
Nick Schwellenbach, POGO’s Director of Investigations, stated, “The Trump administration cannot unilaterally disregard laws protecting federal employees’ right to communicate with Congress. Agencies cannot lawfully muzzle employees to keep Congress in the dark on wrongdoing.”
The HHS memorandum states:
…any communications with Members of Congress and staff should not occur without prior consultation with the Office of the Assistant Secretary for Legislation (ASL). This includes requests for calls, meetings, briefings, technical assistance, policy development, hearings, oversight, detailees, etc. The ASL is responsible for ensuring Secretary Price's involvement on appropriate matters.
The memorandum fails to provide HHS employees with language required by the WPEA that mandates agencies include language in non-disclosure agreements and policies that inform employees that they have whistleblower rights. Without this language, federal employees may believe they cannot lawfully communicate with Congress as individuals and as whistleblowers.
It is a prohibited personnel practice 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."
In February, Senator Grassley, Representative Chaffetz, and Representative Mark Meadows (R-NC) raised similar concerns about other communications early on in the Trump administration from agency management at the Environmental Protection Agency and U.S. Department of Agriculture.