Court Removes Gag from Federal Employees

February 11, 2000 12:00 am

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WASHINGTON — In an affirmation of free speech rights in the federal workplace, the U.S. Court of Appeals ruled this week that federal employees are free to speak on behalf of non-profit citizens’ groups to agencies of the federal government.

The decision reversed the rulings of the federal Office of Government Ethics and a lower court, which had told federal employees that such activity was a crime. The federal appeal court found that a federal criminal ethics statute was not intended by Congress “to act as a general gag order on federal employees” and does not bar them from responding to requests from other federal agencies’ calls for public comment on issues of public concern.

“This is an important decision because it frees more than 1.6 million employees of the federal and District of Columbia governments to speak on behalf of non-profit groups in which they are active to federal agencies regarding issues that are important in their communities,” said Arthur Spitzer, Legal Director of the American Civil Liberties Union of the National Capital Area.

“Citizens who are involved in environmental organizations, or church groups, or neighborhood associations, or the Boy Scouts should not be precluded from speaking to the government on those groups’ behalf just because they work for a different government agency,” he added.

The court’s February 8 ruling came in the case of Jeffrey van Ee v. Environmental Protection Agency. Mr. van Ee is an electrical engineer at an EPA research laboratory in Las Vegas, Nevada, who wished to speak on behalf of various non-profit environmental groups to federal agencies such as the National Park Service, the Bureau of Land Management, and the U.S. Forest Service, in connection with environmental issues in Nevada.

The EPA and the Office of Government Ethics had broadly construed a federal criminal statute to prevent even uncompensated speech by federal employees to any part of the federal government in connection with issues involving the interests of “discrete and identifiable” persons.

But the Court of Appeals found that Congress had enacted this law to prevent a government employee from “using his or her office or inside information to corrupt the government’s decision making process.” The court found that Mr. van Ee’s desire to speak on behalf of non-profit groups to federal agencies other than EPA about environmental issues of public concern in Nevada did not “present the problems that Congress sought to cure as nothing in the record remotely suggests that van Ee has a real conflict of interest or is misusing government information or otherwise abusing his position.”

The Court of Appeals concluded that the law “leaves career federal civil servants free to voice the concerns of citizens’ groups of which they are members on broad policy issues because the likelihood that such representational assistance could divide the loyalty of the employee or distort the decision making process is minimal.”

The court also noted that its narrower construction of the statute had “the salutary effect of avoiding potentially grave constitutional concerns that would arise were [the law] construed to cover van Ee’s acting as a spokesperson for the groups in which he is a member.”

The appeals court decision is available online at

Mr. van Ee was represented by John Flyger and Cynthia Taub of Steptoe & Johnson LLP in Washington, D.C., and Arthur Spitzer of the American Civil Liberties Union of the National Capital Area.

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