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.
In response to questions, EPA spokesperson Brigit Hirsch said the 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.”
Zeldin blasts back
Administrator Lee Zeldin took a much different tone from the agency’s ethics staff.
In a statement on July 3, Zeldin lambasted those staffers as “agency bureaucrats” and said: “Unfortunately, a small number of employees signed onto a public letter, written as agency employees, using their official work title, that was riddled with misinformation regarding agency business.”
Close to 150 staffers who signed the dissent letter were placed on administrative leave that day. EPA kept them in that status for almost two months. The agency later suspended many or pushed out some of them out by the end of last summer.
EPA’s statement didn’t address a question on whether the administrator was aware of Fugh and her staff’s conclusion there was “no ethics concern.”
Top EPA officials had heard from ethics staff about the dissent letter. A colleague forwarded a redacted email from Fugh to Helena Wooden-Aguilar, then deputy assistant administrator for workplace solutions.
“This is helpful and I think I have what I need,” Wooden-Aguilar replied on July 1. “Please thank Justina and we are standing down for now. Thanks!!!!!!!!!!!!”
EPA’s statement also didn’t address what Fugh said in that email Wooden-Aguilar received.
EPA searched work computers and email accounts of the signatories when they were out on leave. They were also ordered to participate in a survey, asking whether they used government resources to view and sign the dissent letter.
Current and former EPA employees, granted anonymity because they fear retaliation, said they had heard whispers about the ethics office’s assessment.
“I’m not surprised by her comments,” said a former EPA employee, referring to Fugh. “She is a career attorney, and I’d bet they didn’t like her answer, so they pursued other arguments in their proposed suspensions and removals.”
Another of Fugh’s emails was partially redacted under FOIA’s exemption for deliberative process.
“The records are exempt from disclosure because they are predecisional and deliberative and would harm agency decision making if released,” EPA said in its response letter.
‘Conduct Unbecoming of a Federal Employee’
American Federation of Government Employees Council 238, EPA’s largest union, provided an updated tally of dissent letter signers who were disciplined. Nine employees were removed for misconduct; six probationary workers were terminated; and over 50 staffers served two-week suspensions without pay.
AFGE Council 238 President Justin Chen said the conclusion by the EPA ethics office “further vindicates our members, whom we fully support legally, in the workplace, and on the streets.”
Chen added, “EPA should make whole” the union’s members “who were unfairly disciplined and apologize to them.”
EPA charged staffers who signed the dissent letter with “Conduct Unbecoming of a Federal Employee,” according to a document PEER posted online.
“As an EPA employee, you are required to maintain proper discipline and refrain from conduct that can adversely affect morale in the workplace, foster disharmony, and ultimately impede the efficiency of the agency,” said the decision on proposed removal.
Rapp-Tully said that misconduct charge can be “very broad.”
“If one of the things that they did was violate an agency rule, that could lead to a charge of misconduct — if they were on work time when they filled out the letter, if they had conversations on work time, if they used their government computer,” she said. “Any of those types of things could be potentially justification and support for a ‘Conduct Unbecoming’ charge.”
PEER’s general counsel thought EPA overstepped its authority.
“This is insane that there was any disciplinary action,” Citron Day said. “There’s no ‘Conduct Unbecoming.’ There is nothing wrong. These employees were simply exercising their right to raise legitimate concerns about the abandonment of EPA’s public health mission in their personal capacities.”
Citron Day said the former employees’ appeal remains ongoing. “We are fighting with the agency at every turn,” she said.
Rapp-Tully said the fired EPA staffers may run into limits on what they could have said when employed by the government.
“There are restrictions for some federal employees, a good number of them, where they can’t talk openly about certain things,” she said, referring to classified and personal information. “There are some things that disclosure and discussing wouldn’t be protected by the First Amendment.”
An EPA employee said when there was no ethics violation to be found, the agency’s “fallback charge” was to try misconduct, “which is vague enough to mean almost anything.”
“It allows leadership to claim reputational harm without having to demonstrate any real damage,” said the EPA staffer. “Frankly, if they think we are the ones who have harmed the agency’s reputation, they need to turn on the news.”
The employee said internal emails showing that the dissent letter didn’t violate ethics rules would have exonerated the signers under normal circumstances. Instead, they expected the Trump administration to plow ahead with its agenda.
“The message that sends to the federal workforce is hard to miss,” the staffer said. “Agree with us, or we are coming for you.”
Contact this reporter on Signal at KevinBogardus.89.
