by Kent Willis, Executive Director
Deeply ingrained in our culture is the notion that public figures put themselves up for public scrutiny. It comes with the territory because in this country the same people who decided to tell King George III where to go and fought a war to send him there were also the people who laid out our constitutional principles.
It’s a given: If you run for public office or accept public employment, then taxpayers have a right to tell you what they think of you, and you have an obligation to be transparent about what you do. The former principle emanates from the free speech clause of the First Amendment. The soul of the latter resides less explicitly in the same amendment, but is bolstered by state and federal “sunshine laws” that require public officials to disclose most of their actions.
These two principles work in tandem to keep government accountable. And except for ongoing legislative and legal battles over precisely where to place the fence that separates public concerns from private ones, government officials typically go along with these obligations.
But every once and a while, a public official comes along who reminds us of why these principles aren’t just guidelines or quaint notions, but the law.
Meet Virginia Commonwealth University President Michael Rao, who recently decided that the people in his employ should sign a contract that is a part gag order, part loyalty oath, and part end-run around the judicial system.
Rao’s so-called “confidentiality agreement” forbids his employees from speaking about Rao’s personal life or confidential matters with “family, friends, colleagues, associates, representatives of the media, clergy and attorneys, or any other person not otherwise identified.” In other words, employees can’t say a word to anyone.
There are two big problems with this. First, public employees not only have the right but also the duty to report anything they witness on the job involving corruption or incompetence that is a matter of public concern. It’s called whistle blowing. The Supreme Courts says you can do it without repercussions, and state and federal laws support it.
It doesn’t matter if the subject is personal or confidential, if it involves something where public concern outweighs the private ones, the employee should be speaking out about it.
Second, while communications about purely personal matters that do not involve a public concern can be restricted, it is shocking that Rao is banning conversations with attorneys. If, for example, an employee sees something on the job that is possibly but not unequivocally illegal, he or she should seek advice from an attorney.
Preventing employees from talking to clergy is just downright peculiar.
In another part of the agreement, Rao requires employees to give up their legal rights by preventing them from arguing in court against repercussions from an “anticipated violation” of the agreement.
Some years back, we represented a Halifax County employee who was fired from her job because she wrote that the county-run animal shelter was mistreating the dogs in its care. We also represented a Virginia Tech Extension agent fired for writing a letter to the press in which he argued that organic farming would result in fewer pollutants in the Chesapeake Bay. We won both cases.
These were both cases in which public officials overreacted to something an employee did. But neither of these employees had signed an agreement to give up constitutional rights as a condition of employment, so they were fully protected by the First Amendment.
In the end, the constitutional and statutory rights of VCU employees should trump Rao’s employment contract, but that’s not absolutely clear. Under some conditions, you can sign away a constitutional right, and this is precisely what Rao seems to be asking of his employees.
The question here is less a legal than a moral and cultural one. Should a public official, sworn to uphold the Constitution and the laws of Virginia, ever be so audacious as to consider muzzling his employees in this way? And shouldn’t those who employ him be questioning his judgment?
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