Environmental Protection Agency Administrator Lee Zeldin might be very skilled at Making Coal Great Again, but he’s not so solid on the whole First Amendment thing.
The EPA just put 144 people on administrative leave for signing a letter of dissent about the agency’s policies. It follows a March open letter where current and former EPA employees called both President Donald Trump and Zeldin out for their illegal dismantling of the core functions of the agency. However, the March letter was anonymous, and while some of the signatories of the more recent letter chose to remain anonymous, the 144 employees the EPA is now targeting signed the letter with their names and job titles.
In placing the workers on leave, the EPA didn’t hide the ball as to why they were being suspended. An agency spokesperson plainly said they were suspended as retaliation for their speech. “The Environmental Protection Agency has a zero-tolerance policy for career bureaucrats unlawfully undermining, sabotaging, and undercutting the administration’s agenda as voted for by the great people of this country last November,” said a spokesperson for the agency.
Here’s the thing. Government employees enjoy the protections of the First Amendment, even if the Trump administration doesn’t believe they should. Public employees are protected when speaking out about matters of public concern, which Zeldin’s hijacking of the EPA to, in his words, “drive a dagger through the heart of climate change religion” definitely is. There are a couple of caveats. If public employees are speaking in their official capacity about something that is normally part of their official job duties, then First Amendment protections don’t apply.
Here, just because people used their job title doesn’t magically mean they were speaking in an official capacity. The letter of dissent specifically does not purport to speak for the EPA but is instead directed to Zeldin. Additionally, it’s incredibly unlikely that anyone who signed the letter was doing that as part of their official job duties, unless someone’s job duty is to write public letters about the state of the EPA.
The right of public employees to speak out has to be balanced by the employer’s interest in a workplace that is efficient and free of distraction. In other words, the speech of public employees may not be protected if it disrupts the workplace. But that’s a fairly high bar. If the speech interferes with the ability of superiors to discipline workers, impairs the employee’s job performance, or harms certain work relationships, then it may be disruptive enough that First Amendment protections don’t apply.
That might vaguely be what the EPA is asserting here when it complained that the letter doesn’t represent the views of all the agency employees. That’s true, but the letter doesn’t purport to represent everyone at the EPA. It represents the people who signed the letter.
Normally, these 144 employees would have recourse via the independent agencies tasked with protecting federal employees. It’s a pretty slam-dunk case of retaliation for protected speech when your employer suspends you for saying something the employer doesn’t like. But the conservative majority on the Supreme Court blessed Trump’s illegal removal of independent board members, which means that those independent agencies aren’t really independent any longer. Trump’s removal of Cathy Harris, the head of the Merit Systems Protection Board, left the MSPB with no quorum.
The MSPB is where federal employees go to challenge an adverse action, such as a firing or suspension. Without a quorum, employees can still file appeals with the MSPB, and administrative judges can rule on those claims. However, if the employee or the agency disagrees with the ruling, they can petition the MSPB for review. If there’s no quorum, the board can’t review the ruling and issue a final decision. Put simply, even if these employees pursue relief through the MSPB, the EPA can just state it disagrees with the finding, and the entire process then stalls without a quorum.
Trump has also compromised the other path for federal employees to seek relief. The Office of the Special Counsel provides a secure channel for federal whistleblowers and protects federal employees from prohibited practices, such as coercing partisan political activity. Federal workplaces are supposed to be free of partisan politics, but it doesn’t get more partisan than suspending employees because you think they are “sabotaging and undercutting the administration’s agenda as voted for by the great people of this country last November.”
However.
Trump has nominated far-right troll Paul Ingrassia to lead the OSC. Ingrassia is a 30-year-old with a fervor for violent misogynist Andrew Tate and an affection for white nationalist Nick Fuentes. He appears to have called for Trump to declare martial law after the 2020 election, and might be a 9/11 truther. Somehow, it doesn’t seem like Ingrassia, if confirmed, will ensure that federal workplaces remain nonpartisan.
Trump treats the presidency like an extension of his person, and his Cabinet has adopted that same framing: People voted for Trump, which means they preapproved anything he chooses to do. Any disagreement, therefore, means you are not respecting the will of the voters.
It isn’t surprising, with that mindset, that the administration is coming for the free speech rights of public employees. After all, how dare they speak out against Dear Leader?
Just because the GOP has signed on to Trump’s cult of personality doesn’t mean that federal workers have to do so as well.