September 29, 2016
"This is a victory for public trust, congressional oversight, and most importantly the veterans who served our country."
Today U.S. Senator Ben Sasse issued the following statement after President Barack Obama signed his Veterans Affairs oversight and accountability legislation into law.
"Silencing whistleblowers is unacceptable. Starting now, the VA—a department that has an appalling history of scandals and cover-ups—cannot hide its failures behind gag orders disguised as separation agreements. This is a victory for public trust, congressional oversight, and most importantly the veterans who served our country."
On May 19, Sasse’s legislation was first passed by the Senate. Today, it was included in the short-term continuing resolution that President Obama signed into law this afternoon.
The text of the legislation is simple: “SEC. 256. None of the funds appropriated or otherwise made available in this title may be used by the Secretary of Veterans Affairs to enter into an agreement related to resolving a dispute or claim with an individual that would restrict in any way the individual from speaking to members of Congress or their staff on any topic not otherwise prohibited from disclosure by Federal law or required by Executive Order to be kept secret in the interest of national defense or the conduct of foreign affairs.”
In May, Sasse demanded answers from VA Secretary Robert McDonald about why his department attempted to strip a former employee of her constitutional right to speak with Congress, and whether this kind of action was routine business at the VA.
Sasse’s letter is found below:
May 11, 2016
Dear Secretary McDonald:
I would like your help understanding why the Department of Veterans Affairs (VA) entered into a settlement agreement with a former employee that the Equal Employment Opportunity Commission (EEOC) called a “gag order” that violated an individual’s constitutional rights.
A recent decision by the EEOC in the case of Aurore v. McDonald raised serious questions about whether the Department of Veterans Affairs undermined the constitutional rights of an employee seeking relief in a case of discrimination, and then retaliated against her when she tried to find a new job. The case involved a woman who worked as a nurse at the VA Puget Sound facility in Seattle, Washington, and believed she was the victim of discrimination. After making her allegations, she entered into a settlement with your department. While the facts of her discrimination case remain sealed, a number of details related to her settlement with the VA have since been made public.
One alarming provision of the settlement agreement went so far as to prohibit the woman from talking with any member of Congress or the media. It read:
(3.5) Confidentiality: Neither Complainant nor the Agency will disclose this Settlement Agreement or its terms, with the following exceptions: (1) to authorized VA, EEO, ORM, EEOC, or other officials responsible for implementing the Agreement . It should be understood that Complainant shall be prohibited from making any complaints or negative comments to any member of Congress or their staff, or any newspapers or media or their staff, or any other public forums, about the facts of this Settlement Agreement or the facts or conditions that led up to this Settlement Agreement. (original emphasis)
It is my understanding that provisions like this are extremely unusual. So unusual, in fact, that the EEOC not only took the step of rendering what it referred to as a “gag order” null and void, but also rebuked the VA for including it in the first place. In its opinion, the EEOC said,
“We view this provision as an unlawful, overly restrictive confidentiality limitation, because it expressly deprives Complainant of her ability to contact Congress and otherwise limits her First Amendment Rights to communicate with the media about any of her EEO claims.” (emphasis added)
Adding insult to injury, the EEOC noted, after the VA issued this “unlawful” gag order it failed to abide by the order itself. After the woman was offered a new job in California, her former employer at the VA in Seattle revealed confidential information about the settlement agreement to the prospective employer. The prospective employer then rescinded the job offer.
How could anyone at the VA ever believe it was right or fair to prohibit one of their own employees not only from talking with the media, but also from contacting her representatives in Congress? However, to put this requirement in place and then retaliate against the woman by breaking the agreement is deeply troubling.
Every constitutional officer - including the Secretary of Veterans Affairs - has a duty to protect the Constitution. The oath we have both taken request that we defend all five freedoms listed in the First Amendment: religion, speech, the press, assembly and petition. The gag order in place by the VA failed to ensure these freedoms were protected.
To help me understand the circumstances surrounding this situation, please provide answers to the following questions:
1. Do you believe it was appropriate for the VA to include a provision prohibiting the claimant from exercising her First Amendment rights?
2. Why did the VA include a provision in the settlement agreement prohibiting the claimant from speaking with Congress and the media?
3. Who is the highest ranking official at the VA that approved the settlement agreement entered into on January 7, 2013?
4. Has the VA ever entered into any other settlement agreement that contained a provision prohibiting one of the parties from speaking to Congress or the media? If so, please explain when, how many times and provide the exact language included in the agreement.
5. In light of the EEOC’s decision in Aurore v. McDonald, will VA policy be changed to ensure future settlement agreements do not unlawfully restrict an individual’s constitutional rights? If so, please explain and provide a copy of the new policy.
I look forward to your response. Please direct any questions you have to Chris Barkley with my office, who can be reached at (202) 224-4224.