Senate banning VA from using 'I promise not to complain to Congress or the media' provisions in employment claim settlements

|The Volokh Conspiracy |

Last month, I blogged about Aurore C. v. McDonald, an EEOC decision that revealed an odd action by the Department of Veterans Affairs: The VA, in settling an earlier employment dispute, required the employee to agree that she would not make "any complaints or negative comments to any member of Congress …, or any … media" about the settlement agreement or the underlying complaint. I argued that this improperly denied the VA's supervisors—the Congress and the public—information about the VA's behavior (and possible misbehavior):

What troubles me more, though, is the political accountability question. Whether or not such agreements violate the First Amendment, should an executive agency really be trying to restrict its former employees from complaining about the agency to Congress, or to the public at large?
Say you were on the board of directors of a company, and you learned that mid-level managers were making financial deals with ex-employees, under which the ex-employees were forbidden from "making any … negative comments" to you about what the managers were doing. Would you be happy about that?

I'm delighted to report that Sen. Ben Sasse (R-Neb.) was troubled, too. His statement: "The VA's gag orders directly violate Secretary McDonald's duty to uphold and defend the Constitution. If departing employees can shed light on broken programs and poor performance, Congress needs to hear from them. Agencies shouldn't be allowed to hide incompetence behind separation agreements."

On May 11, Sasse wrote a letter to the secretary of the VA, asking what was going on (see below). And yesterday, he submitted an amendment (also see below), which passed on a voice vote; if all proceeds apace, it looks as though the VA's attempt to suppress criticism will be forbidden. (Since an agency can't do anything without spending funds, a ban on spending funds to enter into such settlement agreements is essentially a ban on such agreements.) I'm very glad to see the Senate taking an interest in such matters.


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….

UPDATE: I originally said the amendment was submitted together with Sen. Collins, but it was just from Sen. Sasse; my apologies for the error.