WASHINGTON, D.C. (E&E News) — EPA employees who publicly excoriated the Trump administration — and were later reprimanded by the agency — did not run afoul of ethics rules, according to agency officials.
Ethics staff at EPA found last summer that employees who signed an open dissent letter were within their rights to do so, internal emails show. Nevertheless, the agency suspended most and fired some, a controversial move seen as silencing their criticism and is now being challenged by litigation.
The EPA “Declaration of Dissent” went live online June 30 last year, taking President Donald Trump’s team to task for its treatment of the agency’s science and staff. Hundreds of employees, many named with their job titles, signed the letter.
Ethics officials, who were soon asked for their opinion on the matter, didn’t see a problem, as documented in a series of emails obtained by POLITICO’s E&E News under the Freedom of Information Act.
Justina Fugh, director of EPA’s Ethics Office, said that nothing in the dissent letter triggered the Hatch Act, which limits partisan activity by government workers, so the next question was whether signing the letter “presented any misuse of position concerns.”
“I consulted with my team during our staff meeting, and they corroborated my initial reaction: the employees are simply exercising their first amendment rights to express their opinions,” Fugh told a colleague on July 1, the day after the letter was released.
She added, “The petition states on its face that the employees are acting in their personal capacity and on their own time, so one cannot reasonably assume that they are intentionally misusing their federal positions to bolster their opinions.”
On July 2, Fugh expressed similar thoughts in another email, saying, “We’ve been asked this question twice already. My staff and I have looked at the petition … and concluded that there is no ethics concern.”
Stephanie Rapp-Tully, a partner at law firm Tully Rinckey, said that just because EPA employees didn’t break ethics rules or the Hatch Act when they signed the dissent letter doesn’t mean they didn’t violate another agency policy. Nevertheless, the emails could be used as “supporting evidence” to defend those staffers.
“It is not immediately ‘Oh, they’re in the clear, they’re going to win their [Merit Systems Protection Board] appeal,’” said Rapp-Tully, an expert in federal employment law. “The agency will have to prove the charges as alleged in the proposal for removal, that the penalty was reasonable.”
After reviewing the emails, Joanna Citron Day, general counsel for Public Employees for Environmental Responsibility, said Fugh was “right that there’s no ethics issue.”
“This was a bunch of employees expressing their protected First Amendment right to dissent by signing a letter in their personal capacity on a matter of public concern. Period,” Citron Day said.
PEER is part of the legal team for six former EPA employees fired after they signed the dissent letter. They have filed an appeal with the Merit Systems Protection Board to challenge those terminations.
