UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
WASHINGTON, D.C. 20460
July 4, 1997
Hon. Carol M. Browner
U.S. Environmental Protection Agency
Washington, DC 20460
Dear Ms. Browner:
I am writing to voice strong objections to a recently published EPA document entitled "Prospective Employment, Outside Employment, and Post-Employment". This is an official EPA document signed by Nikki L Tinsley, the acting Inspector General, promulgating rules for EPA employees. This document contains the chilling threat that employees who violate these rules "are subject to a wide range of penalties, including criminal sanctions" and EPA employees are encouraged to turn in violators to the Inspector General.
However, a portion of these rules have been declared unconstitutional and a violation of the rights of government employees by the United States Court of Appeals for the District of Columbia Circuit. Furthermore, the publication misstates the content of the federal regulations cited to support these rules, i.e. 5 CFR 2635.807. In fact the federal regulations say almost the exact opposite of what the Inspector General says they say. The EPA publication states:Despite the Supreme Court's decision and the subsequent OLC ruling, all employees remain subject to the general restriction at 5 CFR 2635.807 against receiving compensation for outside "teaching, speaking, and writing" that "relates to" their official duties. The restriction applies to all types of speaking and writing (not just "appearances, speeches. and articles"). You should consult your Deputy Ethics Official on questions relating to teaching, speaking, and writing activities prior to receiving any compensation or engaging in the activity.In fact 5 CFR 2635.807 actually says:Note: Section 2635.807(a)(2)(i)(E) [i.e. the paragraph defining "teaching, speaking, and writing" that "relates to" their official duties] does not preclude an employee, other than a covered noncareer employee, from receiving compensation for teaching, speaking or writing on a subject within the employee's discipline or inherent area of expertise based on his educational background or experience even though the teaching, speaking or writing deals generally with a subject within the agency's areas of responsibility.In other words, according to 5 CFR 2635.807, unless the compensation can be construed as an attempt to influence the actions of a government official or unless he makes use of information not available to the public, a government employee is pretty much free, on his own time, to write, teach and speak as he pleases, even about agency business, even if it offends some agency officials, and to collect expenses, royalties and honoraria for doing it. Quite the opposite of the chilling tone of the EPA publication.
This reform came about as a result of my four-year fight in the federal courts against the previous federal regulations which stated:An employee is prohibited by the standards of conduct from receiving compensation, including travel expenses, for speaking or writing on subject matter that focuses specifically on his official duties or on the responsibilities, policies and programs of his employing agency.In its final decision in Sanjour v. EPA, 56 F. 3d 85 (1995), the United States Court of Appeals for the District of Columbia Circuit en banc concluded:Government employee speech is protected by the First Amendment, and can only be infringed when the government demonstrates that the burden on such speech is "outweighed by [its] necessary impact on the actual operation of the government." See id. (internal quotations and citation omitted). The regulations challenged here throttle a great deal of speech in the name of curbing government employees' improper enrichment from their public office. Upon careful review, however, we do not think that the government has carried its burden to demonstrate that the regulations advance that interest in a manner justifying the significant burden imposed on First Amendment rights. We therefore reverse the decision of the district court, and remand the case for proceedings consistent with this opinion.The previous Inspector General was noted for his KGB-like suppression of discussion and dissent within the agency even to the point of suppressing scientific discourse when it differed from EPA orthodoxy as in his persecution of Dr. William Marcus for raising scientific questions concerning the use of fluoride in drinking water. I had hoped that this Stalinist reign would end with the retirement of John Martin but it appears that Ms. Tinsley may be from the same school. Coming down, as she does, with a heavy handed list of forbidden practices and threatened punishments.
I'm sure you will agree that free and open discussion of issues, especially scientific issues, will, in the long run, improve our ability to protect the environment and improve employee morale, even if there is some short-term embarrassment to some agency officials. To that end I ask that you require the withdrawal of this document and that a new version be issued which correctly states the law, and instead of threats, enlightens EPA employees on their First Amendment rights, as well as their duties and responsibilities as free Americans. I hope that I can receive a written response to my request within twenty days.
cc: Rep. Richard W. Pombo
Rep. John Linder
Rep. Charlie Norwood
Dwight A. Welch
William Sanjour's home page