Labor & Employment Law Daily AFGE sues to protect federal employees’ right to discuss impeachment
Wednesday, January 29, 2020

AFGE sues to protect federal employees’ right to discuss impeachment

By WK Editorial Staff

The federal employees’ union is asking a district court to suspend an Office of Special Counsel Hatch Act guidance that bars federal workers from talking about the impeachment process.

The American Federation of Government Employees and AFGE Local 2578 filed a motion in federal court on Friday, January 24, to protect the First Amendment rights of government employees during the ongoing presidential impeachment process.

In a motion for a preliminary injunction, the union has asked the court to immediately suspend a controversial guidance issued by the Office of Special Counsel (OSC) in late 2018 which effectively prohibits federal employees from expressing their views about the impeachment of President Trump while on the job. The motion was filed as part of AFGE’s ongoing lawsuit to block the Hatch Act guidance.

Guidance on “impeachment.” In the guidance, which equates the concept of “impeachment” with “removal from office,” OSC confusingly advises that federal employees are allowed to discuss whether the president should or should not be impeached, but they are not allowed to advocate for or against impeachment—a meaningless distinction that has made silence the only safe option for workers wishing to avoid potential punishment, according to the union. The guidance presumptively restricts federal employees from expressing any opinion on “impeachment” or policy matters if the words “#resist” or “resistance” are used.

Clarification? Following “swift public pushback,” including a letter from American Oversight, which is litigating the case for the union, OSC issued a clarification of its initial position, but made no meaningful change to the troubling substance of the guidance, compounding the concerns of government watchdogs, unions, and the public.

The AFGE originally filed suit in Maryland federal court in August 2019, seeking to compel the OSC to rescind the guidance and enforce the Hatch Act without violating the statutory and constitutional rights of federal employees. The litigation is ongoing.

Chilling speech. However, with the impeachment trial now dominating national news, the issue has become more urgent as the policy is chilling the free speech rights of federal employees—even as senior political appointees in the White House and other federal agencies have openly attacked the impeachment process without consequences, according to the union.

“The Trump impeachment is THE major news story dominating the headlines. For federal employees, he is top management, and it is absurd to think impeachment of the boss will not be discussed at lunch and at the water cooler,” AFGE National Secretary-Treasurer Everett Kelley said in a press release announcing the preliminary injunction motion. “Worse yet, it is a legislative act not related to electoral activity as defined under the Hatch Act. We view it as unconstitutional restraint of free speech.”

The motion is accompanied by declarations of two AFGE Local 2578 members whose speech has been chilled by the OSC policy. One is a federal employee of the National Archives and Records Administration (NARA) in Maryland who wishes to express views about whether President Trump should be impeached but has refrained from doing so due to the guidance. The other member is a NARA employee in Missouri who wishes to use the terms “resist” or “resistance” while at work, but also has refrained from using those words.

If granted, the injunction would prevent OSC from enforcing the guidance while the lawsuit proceeds.

Government watchdog. The motion was brought on the union’s behalf by American Oversight, a non-partisan government watchdog representing AFGE in the case. The organization has been instrumental in obtaining (through the FOIA process) and releasing to the public government documents that were not made available to the House committees during their investigation into the conduct underlying the president’s impeachment.

“The chilling impact of these rules has only gotten worse as the question of whether the president should be impeached moved from a speculative debate to a reality. Government employees have a right to speak about this historic matter,” said Austin Evers, Executive Director of American Oversight. “We are particularly concerned that OSC has taken no action against high-profile defenders of the president—such as counselor Kellyanne Conway—who, from their government perches, have weighed in against impeachment, while ordinary civil servants who might hold different views must refrain from speaking out or risk losing their jobs.”

The union is also represented by Arnold & Porter LLP. The international law firm’s labor and employment team typically represents management in labor law disputes and other employment matters.

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