Can Public Employees Be Made to Sign Non-Disclosure Agreements?

Omarosa Manigault Newman will likely be continuing to make headlines for a little while longer as she can be expected to continue trickling out information from her time as a member of the Trump White House. The President has already filed for arbitration for a claim against her that she violated a non-disclosure agreement (NDA) that she signed with the Trump 2016 Campaign. Apparently, the Trump administration also required senior White House officials to sign NDAs forbidding them to disclose any confidential information about their work – not just during their time in office but even after they leave the White House.
The Washington Post’s Ruth Marcus obtained a draft version of the White House NDA. It said violators would face a $10 million penalty for every disclosure of nonpublic information they learned during their White House tenure, though the article said the penalty was probably reduced in the final version.

So the question arises: Can the government force its employees to sign NDAs? Can they face monetary penalties for breach of the NDA? The answer to both questions is likely “NO.” Government employees don’t work for a particular person. They work for the government and its people. For example, if there was an NDA and it were breached, it would be up to the US Attorney General’s Office to seek enforcement of it. Any monetary penalty would go to the tax coffers. For example, in Snepp v. United States, the Supreme Court ruled that an ex-CIA agent breached his agreement with the agency when he published a book about CIA activities in South Vietnam without first allowing the CIA to review his disclosures. The court directed the ex-agent’s profits into a trust for the government.

But the government’s reach would be limited by the Constitution. And government workers have Free Speech rights as well as “whistleblower” rights. Many federal employees are protected from retaliation for reporting crimes, violations, waste or fraud by the government agencies they work for. Federal employee whistleblowers are protected by the Whistleblower Protection Act of 1989 (WPA) and the Whistleblower Protection Enhancement Act of 2012.

Now the NDA reported on in the Post talks about “non-public information.” Well, non-public information would be “classified” information. Anything that the government does that is not classified is “public.” If a person leaks classified information – even if they are claiming whistleblower status – they will likely face criminal prosecution (Remember Edward Snowden?) They can then try to raise the whistleblower status in court. So the penalties for leaking classified information will be governed by the appropriate statute depending on which agency is involved. An NDA that tacks on additional penalties would therefore likely be unenforceable.

Ah, that pesky Bill of Rights !

Public employees, however, aren’t entitled to absolute First Amendment protection. And even if someone is a whistleblower and they sue in Federal Court for damages for being wrongfully terminated, they can be made to sign an agreement that they won’t make further disclosures in return for a monetary settlement. Also, the U.S. Supreme Court ruled in a 2006 case called Garcetti v. Ceballos that public employees can be fired or otherwise disciplined for speech connected to their jobs. That case is worthy of closer look to distinguish what is protected form what can get a public employee fired for speech.
Richard Ceballos, an employee of the Los Angeles District Attorney’s office, found that a sheriff misrepresented facts in a search warrant affidavit. Ceballos notified the attorneys prosecuting the case stemming from that arrest and all agreed that the affidavit was questionable, but the D.A.’s office refused to dismiss the case. Ceballos then told the defense he believed the affidavit contained false statements, and defense counsel subpoenaed him to testify. Ceballos alleged that D.A.s in the office retaliated against him for his cooperation with the defense, which he argued was protected by the First Amendment. He sued in Federal Court and it went up to the Supreme Court. In a 5-to-4 decision authored by Justice Anthony Kennedy, the Supreme Court held that speech by a public official is only protected if it is engaged in as a private citizen, not if it is expressed as part of the official’s public duties. The Court said Ceballos’s employers were justified in taking action against him based on his testimony and cooperation with the defense because it happened as part of his official duties. “The fact that his duties sometimes required him to speak or write,” Justice Kennedy wrote, “does not mean his supervisors were prohibited from evaluating his performance.” The case cut right through the heart of the Whistleblower statutes and experts have estimated that the decision caused about 90% of all whistleblower cases filed at the time to be dismissed.

Under Garcetti and previous cases in this area that have followed it, government officials can face workplace consequences when they publicly voice concerns about their jobs in their official capacities. Of course, the President can fie anyone he wants – or have John Kelly do it – if he is not happy with their performance. But he can’t monetarily penalize them for speaking afterwards. And if the information is not classified it is public and can be disclosed.

Under case law from the federal appellate courts, including the 4th U.S. Circuit Court of Appeals in 1972’s U.S. v. Marchetti and the D.C. Circuit in 1983’s McGehee v. Casey, ex-employees have a First Amendment right to disclose non-classified information. McGehee is also worth a closer look since it involves an employment agreement with the CIA. Ralph W. McGehee was a former CIA officer. When he joined the CIA, McGehee signed an agreement that barred him from revealing classified information without prior CIA approval. After the CIA censored portions of a manuscript he wrote, McGehee sought a declaratory judgment that the CIA classification and censorship scheme violated the first amendment and that, even if the scheme were constitutional, his article contained no properly classified material. The district court rejected McGehee’s first amendment challenge, and found, after giving deference to the CIA’s judgment, that the CIA had properly classified the censored materials. The Circuit Court affirmed. The CIA classification and censorship scheme, the court said, protects critical national interests. The court also gave great deference to the CIA’s explanations of its classification decisions. But it is in its discussion of what it protected that is of interest in this situation. It made a clear distinction between classified and non-classified material and set up a two part test to determine if a government worker’s speech can be restricted finding that “The government has no legitimate interest in censoring unclassified materials.”:

First, restrictions on the speech of government employees must “protect a substantial government interest unrelated to the suppression of free speech.”

Second, the restriction must be narrowly drawn to “restrict speech no more than is necessary to protect the substantial government interest.”

McGehee’s employment agreement, the court said, “does not extend to unclassified materials or to information obtained from public sources. The government may not censor such material, ‘contractually or otherwise.’” (The D.C. Circuit was quoting from the 4th Circuit’s Marchetti decision in its reference to McGehee’s contract with the CIA.) It can therefore be inferred pretty easily that a broad NDA restricting ALL speech – including when a person leaves government – would be struck down as unconstitutional.

It is also highly unlikely that any of the information Manigault Newman would release would pass the two-step test set out in McGehee She is basically gossiping about Trump’s bad behavior and it will be difficult for the AG to claim that there was a strong governmental interest to be protected by suppressing it. So, grab your popcorn, or plug in your earplugs, cause I see no way the Trump administration can stop her from telling her tales.

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