Whoever subjects someone to surveillance, or gives the impression of surveillance, in retaliation for protected activity may be subject to injunctive relief in federal courts, ordering them to cease and desist.
- "whistleblowers often face some type of surveillance from either the government, the industry, or some other private investigator. The experience can be very frightening and can add an ominous presence to the misery of blowing the whistle.... We often advise that if someone is watching you, he or she wants you to become affected by the surveillance and to act irrationally about it. It can be another way of bullying you into a mistake." Government Accountability Project, et al. Courage Without Martyrdom -- A Survival Guide for Whistleblowers 5 (1989)(Emphasis added).
Will ethical EPA employees report this outrage to the Inspector General? Will they and their union(s) request a remedy for surveillance or giving the impression of surveillance, in order to halt future lawbreaking. See Consolidated Edison Company, 4 NLRB 71, 94 (1937), enforced, 305 U.S. 197 (1938); Atlas Underwear Co. v. NLRB, 116 F.2d 1020, 1023 (6th Cir. 1941); NLRB v. Ford Motor Co., 119 F.2d 326 (5th Cir. 1941); Press Co. v. NLRB, 118 F.2d 937 (D.C. Cir. 1940), cert. denied 61 S.Ct. 1118; NLRB v. Baldwin Locomotive Works, 128 F.2d 39, 49 (3d Cir. 1942); NLRB v. Jasper Chair Co., 138 F.2d 756 (7th Cir. 1943); NLRB v. Collins & Aikman Corp., 146 F.2d 454, 455 (4th Cir. 1944); NLRB v. Anchorage Times Publishing Co., 637 F.2d 1359, 1365-6 (9th Cir.), cert. denied, 454 U.S. 835 (1981); NLRB v. Randall P. Kane Co., 581 F.2d 1124, 1131 (9th Cir. 1978); NLRB v. Squire Shops, Inc., 559 F.2d 486, 487 (9th Cir. 1977); NLRB v. Miller Redwood Co., 407 F.2d 215, 218 (9th Cir. 1978); NLRB v. Intertherm, 596 F.2d 267 (8th Cir. 1979); Russell Stover Candies, Inc. v. NLRB, 551 F.2d 204, 207 (8th Cir. 1977); NLRB v. Speed Queen, 469 F.2d 189, 191 (8th Cir. 1973); NLRB v. Hawthorn Co., 404 F.2d 1205, 1208-09 (8th Cir. 1969); Olsen Rug Co. v. NLRB, 304 F.2d 710, 714-15 (7th Cir. 1962); NLRB v. Tidelands Marine Service, 339 F.2d 291 (5th Cir. 1964); National Phosphate Corp., 211 NLRB 567 (1974); Fotomat Corp., 207 NLRB 461 (1973); J.P. Stevens & Co., 245 NLRB 198 (1979); Laidlaw Waste Systems, 305 NLRB No. 5 (1991); Local 309, United Furniture Workers v. Gates, 75 F.Supp. 620, 625-26 (N.D. Ind. 1948); Alliance to End Repression v. City of Chicago, 742 F.2d 1007 (7th Cir. 1984); Handschu v. Special Services Divn, 349 F.Supp. 766 (S.D.N.Y. 1972);Presbyterian Church (USA) v. United States, 870 F.2d 518 (9th Cir. 1989); Philadelphia Yearly Meeting of the Religious Society of Friends v. Tate, 519 F.2d 1335 (3d Cir. 1975); Paton v. LaPrade, 524 F.2d 862 (3d Cir. 1975); Cf. Fr. Robert F. Drinan, "First Amendment Endangered" (book review by one of my mentors, who chaired the ABA Section of Individual Rights and Responsibilities for one of the two years that I served as YLD Liaison member of its Council), 78 Geo L.J. 2057 (1990).
Injunctive relief, damages and attorney fees might be ordered against EPA Administrator SCOTT PRUITT and EPA to make them cease and desist surveillance or giving the impression of surveillance. Otherwise, "[o]nly a brave soul would dare to express anything other than orthodoxy under such circumstances." White v. Davis, 120 Cal. Rptr. 94 (1975).
E.P.A. Employees Spoke Out. Then Came Scrutiny of Their Email.
By Eric Lipton and Lisa Friedman
The New York Times
December 17, 2017
WASHINGTON — One Environmental Protection Agency employee spoke up at a private lunch held near the agency headquarters, saying she feared the nation might be headed toward an “environmental catastrophe.” Another staff memoer, from Seattle, sent a letter to Sntriott Pruitt, the E.P.A. administrator, raising similar concerns about the direction of the agency. A third, from Philadelphia, went to a rally where he protested against agency budget cuts.
Three different agency employees, in different jobs, from three different cities, but each encountered a similar outcome: Federal records show that within a matter of days, requests were submitted for copies of emails written by them that mentioned either Mr. Pruitt or President Trump, or any communication with Democrats in Congress that might have been critical of the agency.
The requests came from a Virginia-based lawyer working with America Rising, a Republican campaign research group that specializes in helping party candidates and conservative groups find damaging information on political rivals, and which, in this case, was looking for information that could undermine employees who had criticized the E.P.A.
Now a company affiliated with America Rising, named Definers Public Affairs, has been hired by the E.P.A. to provide “media monitoring,” in a move the agency said was intended to keep better track of newspaper and video stories about E.P.A. operations nationwide.
But the sequence of events has created a wave of fear among employees, particularly those already subject to special scrutiny, who said official assurances hardly put them at ease.
“This is a witch hunt against E.P.A. employees who are only trying to protect human health and the environment,” said Gary Morton, an E.P.A. employee in Philadelphia, who works on preventing spills from underground storage tanks. His emails were targeted seven days after he participated in a union rally in March challenging proposed budget cuts. “What they are doing is trying to intimidate and bully us into silence,” he said.
The contract with Definers comes at a time of heightened tension between the news media and the Trump administration. Within the E.P.A., the move is also part of a bellicose media strategy that has been helped at key moments by America Rising — even before its affiliate was hired by the agency.
An E.P.A. official vehemently defended the $120,000 contract to Definers, saying it filled a need in the media office for an improved clipping service.
“Definers was awarded the contract to do our press clips at a rate that is $87,000 cheaper than our previous vendor, and they are providing no other services,” a spokesman for the E.P.A., Jahan Wilcox, wrote in an email.
Joe Pounder, a founder of Definers Public Affairs, said several government agencies had contacted his firm about its news-tracking tool, called Definers Console, because they were seeking a service that does a better job of keeping up with the fast-paced news cycle, including tracking of live-streamed videos. He said that agency staff members familiar with the company’s work approached the firm about putting forward a bid and that Mr. Pruitt himself was not, to his knowledge, involved in the decision to select Definers.
“I hope E.P.A. employees realize after a few months that we are providing a really great and invaluable service that advances their mission,” Mr. Pounder said.
He and Matt Rhoades, his partner at Definers Public Affairs, also started America Rising. The two entities share several top executives, including Allan L. Blutstein,the lawyer who prepared the Freedom of Information Act requests aimed at the E.P.A. employees.
Some Republicans who previously worked for the agency said the hiring of Definers Public Affairs sent a worrisome message to employees already on edge and fearful of retaliation.
“Mr. Pruitt appears not to understand that the two most valuable assets E.P.A. has is the country’s trust and a very committed professional work force,” said William K. Reilly, the E.P.A. administrator under George Bush. “This shows complete insensitivity, complete tone-deafness, or something worse.”
Liz Mair, president of a Republican consulting firm, said that the relatively small dollar amount of the contract was an indication that all the agency was buying was a clipping service, and not some kind of sophisticated intelligence-gathering on employees. But she added that certain E.P.A. staff members actually merited more scrutiny.
“A lot of funky stuff has been going on with E.P.A. staff,” she said.
Mr. Blutstein said in an interview on Friday that his requests to the agency tracked employees who had made public statements critical of Mr. Pruitt. He said he wanted to know if any of them had used agency email inappropriately, or had violated agency rules in some other way — findings that he could use to compromise efforts to undermine Mr. Pruitt’s work.
“It was more of a fishing expedition on my part,” he said of the at least 20 Freedom of Information requests he submitted, most for E.P.A. employees who were union leaders or had spoken critically of agency management since Mr. Pruitt’s arrival.
Even before the E.P.A. hired Definers, the group of companies, political action committees and nonprofit organizations affiliated with America Rising had frequently drafted news releases that put Mr. Pruitt and his policies in a positive light and attacked the administrator’s critics. Many items, including video clips, also appeared on NTK Network, a for-profit digital news aggregator that Mr. Pounder founded.
In addition to sharing at least nine current and former executives, Definers Public Affairs shares an office building in Arlington, Va., with the multiple arms of America Rising and NTK Network.
E.P.A. staff members said in interviews that they had the right, as private citizens or members of a federal employees’ union, to publicly discuss concerns about changes taking place at the agency under Mr. Pruitt’s management. Some noted that “media monitoring” could be expected to include tracking of statements made on Twitter and other social media platforms, including potentially critical comments agency staff members make about E.P.A. management.
Tracking E.P.A. Employees
The Environmental Protection Agency has hired a new contractor, Definers Public Affairs, to do media monitoring for the agency. But before the contract was awarded, staff members who work for the contractor had been conducting surveillance-type work on E.P.A. employees critical of Scott Pruitt, the E.P.A. administrator, and President Trump.
Michael Cox, who worked at the E.P.A.’s Seattle regional office for 25 years, learned this weekend from an article in The New York Times that he had been among the employees under scrutiny.
Mr. Cox wrote to Mr. Pruitt in March — on the day of Mr. Cox’s retirement from the agency — to tell him that he was “increasingly alarmed about the direction of E.P.A. under your leadership,” and to urge Mr. Pruitt to “step back and listen to career E.P.A. staff,” the letter said.
Just 10 days later, a Freedom of Information request came in seeking Mr. Cox’s correspondence on the day of his resignation. The request led to the production of 62 documents, detailing the names of dozens of agency officials, as well as a note he sent to his work colleagues specifically noting that he knew they shared his concerns with how the agency is being managed — names that would now be listed for anyone reviewing the response.
“That does not make me feel very good,” he said, knowing that his emails could potentially be used against other employees.
Nicole Cantello, an E.P.A. lawyer in Chicago who has helped lead a series of enforcement actions against major air polluters in the Midwest, and whose emails also were requested, said the agency’s decision to hire Definers caused great concern.
“Now that they are working for the agency, will they have access to agency computers and perhaps try to come after me in a whole bunch of different ways?” she said. “And will they turn over their opposition research materials on us to agency officials? I just don’t know. It is very scary. Very, very scary.”
Several of the Freedom of Information requests submitted by Mr. Blutsteinask for correspondence between agency employees and members of Congress — such as Senator Sheldon Whitehouse, Democrat of Rhode Island, and Elizabeth Warren, Democrat of Massachusetts — who have been critical of Mr. Pruitt.
“We have seen a lot of nefarious activities from Trump,” Mr. Whitehouse said. “But hiring a fossil fuel front group that specializes in political hits and is doing F.O.I.A. investigations of your agency’s own employees is a new low.”
E.P.A. employees are not the only ones who have been subjects of the group’s Freedom of Information Act requests. Mr. Blutstein also has sought emails and other information from at least two climate scientists, Katharine Hayhoe of Texas Tech University and Robert Kopp of Rutgers University, who worked on a sweeping government climate change report. The Trump administration cleared the report for publication earlier this year.
“They’re asking for emails related to a document that has already been public and has been reviewed twice by E.P.A. and was ultimately approved by E.P.A.?” Ms. Hayhoe asked. “What do they think they’re going to find?”
The nonprofit arm of America Rising, known as America Rising Squared, oversees some of the group’s most controversial work on climate change: deploying “trackers” to videotape activists like Bill McKibben, founder of 350.org, and Tom Steyer, the billionaire investor and Democratic donor.
“This is classic propaganda from an authoritarian regime,” Mr. Steyer said. “It’s distressing that it would even happen in the United States of America.”
Brian Rogers, executive director of America Rising Squared and a senior vice president at Definers, would not say who paid for the surveillance. In an emailed statement, he said that the firm had focused on Mr. Steyer and Mr. McKibben because they “aggressively target conservative thought leaders” for scrutiny.
“America Rising Squared is committed to ensuring a balanced debate, and providing a conservative perspective on the issues and actors involved,” Mr. Rogers said.
Mr. Reilly, the former E.P.A. administrator, said the whole sequence of incidents — and now the agency’s involvement in it — was deeply disturbing.
“These are committed people,” he said of the agency employees. “It’s not just a job for them. To put their morale and their good standing in danger is going to risk losing something very valuable to the government and to the country.”
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