After the shutdown began political leadership changed out of office emails to state that “unfortunately, Democrat Senators are blocking” the temporary spending bill that the House had passed. Image: Allmy/Shutterstock.com
By: FEDweek StaffA federal judge has ruled that the Education Department violated its furloughed employees’ First Amendment rights by changing their out-of-office email messages from the initially recommended neutral statement that a shutdown existed to one blaming Democrats.
District Judge Christopher R. Cooper of the U.S. District Court for the District of Columbia Circuit granted summary judgment in a case brought by the AFGE union and others, which amounts to a ruling on the merits of the complaint. That’s in contrast to injunctions issued in numerous other challenges to Trump administration personnel actions, many of which later have been overturned on appeal, leaving those actions in place while the case continued.
The decision recounted that as the shutdown drew close, the department instructed employees who would be furloughed to use what the judge called a “plain vanilla” out-of-office message stating that “We are unable to respond to your request due to a lapse in appropriations for the Department of Education. We will respond to your request when appropriations are enacted.”
After the shutdown began, though—without notice to the furloughed employees and after they had lost ability to change their out-of-office messages—political leadership changed them to state that “unfortunately, Democrat Senators are blocking” the temporary spending bill that the House had passed.
“Since the first day of the shutdown, the Department has used its employees’ e-mail accounts to repeatedly deliver partisan messages that many employees do not wish to convey . . . When government employees enter public service, they do not sign away their First Amendment rights, and they certainly do not sign up to be a billboard for any given administration’s partisan views,” the judge wrote.
“Nonpartisanship is the bedrock of the federal civil service; it ensures that career government employees serve the public, not the politicians. But by commandeering its employees’ e-mail accounts to broadcast partisan messages, the Department chisels away at that foundation. Political officials are free to blame whomever they wish for the shutdown, but they cannot use rank-and-file civil servants as their unwilling spokespeople. The First Amendment stands in their way. The Department’s conduct therefore must cease,” the decision said.
Said the AFGE, “The Trump-Vance administration’s use of official government resources to spread partisan messaging using employees’ email was an unprecedented violation of the First Amendment, and the court’s ruling makes clear that even this administration is not above the law.”
While the case involves only email messages at the Education Department—the only one to make such a change, or at least the only one where such a change has come to light—it is part of a larger dispute over partisanship in agency communications about the shutdown.
A top House Democrat on civil service issues recently filed a request for a House inquiry into the Education Department email messages, as well into an OMB directive to agencies to include certain language in their communications to employees, and a statement on the HUD site blaming “the radical left in Congress” for the shutdown.
That site continues to display that message, while many other sites continue to blame Democrats, including the National Finance Center—the government’s largest payroll provider—the Centers for Medicare and Medicaid Services, and the White House. In contrast, opm.govstates that a shutdown exists but does not attempt to assign blame, while gsa.gov does not even acknowledge the shutdown.
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