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Trump Questionnaire Raises Concerns About Retaliation Against Energy Department Staff

Donald Trump's transition team circulated a survey asking for names of Department of Energy employees who attended climate change conferences. Legal experts question the new administration's motives.
Manuel Balce Ceneta

Among the queries included in a questionnaire sent by President-elect Donald Trump's transition team to workers at the Department of Energy is a request for an inventory of all agency employees or contractors who attended meetings or conferences on climate change. Another question asks for a current list of professional society memberships of any lab staff.

The 74-point questionnaire has raised fears among civil rights lawyers specializing in federal worker whistleblower protections, who say the incoming administration is at a minimum trying to influence or limit the research at the Department of Energy. And at worst, attempting to target employees with views that run counter to the president-elect.

The questionnaire also asks employees for a listing of when the climate change meetings took place, and to provide any materials distributed to them "or materials created by Department employees or contractors in anticipation of or as a result of those meetings."

"This is a very scary indication of what might happen under a Trump administration," says Jason Zuckerman, a former legal adviser to the U.S. Office of Special Counsel, an agency which protects federal workers, particularly on matters of retaliation.

As we reported Friday, environmental groups and Democratic lawmakers issued a sharp rebuke over the intent of the survey.

Sen. Ed Markey of Massachusetts issued a statement that said:

"This request suggests that your administration may intend to retaliate against career employees who faithfully executed their responsibilities."

For his part, Trump has not announced who he wants running the Energy Department, but last week tapped Oklahoma Attorney General Scott Pruitt, an outspoken skeptic of climate change, to be the next head of the Environmental Protection Agency.

The Trump transition team did not respond to requests regarding this story.

"They're in for a rude awakening if they believe they can just order these experts to ignore the reality, all of the data, and just claim there is no such thing as climate science or global warming," says Zuckerman, who worked on the Obama administration's Whistleblower Protection Advisory Committee.

As for whether the questionnaire violates any laws, however, Zuckerman does not think it has crossed that threshold.

"I think we're probably not there yet, but the real issue will be, what will they do with that information?"

Tom Divine is the legal director of the Government Accountability Project and says he's represented thousands of whistleblowers over the years. He says the questionnaire has all the "symptoms" of trying to pin down employees' personal views.

"This type of action is designed to create the infrastructure to create an enemies list or a menu of federal workers who will be targeted and also to lay the foundation to engage in surveillance against potential whistleblowers," Divine says.

Divine also says information gleaned from the survey could potentially violate federal workers' rights afforded to them by the First Amendment.

"The First Amendment has a first principle, which includes freedom of association. And it means who you associate with, the organizations that you participate in, those are your business — not the federal government's."

Civil rights attorney Debra Katz agrees.

While Katz says federal workers are more limited in their speech compared to those who work in the private sector, there may be grounds for employees at the Department of Energy to take preemptive legal action against the incoming administration.

"If in fact there is an effort to determine if individuals not only did climate change activity in the course of their professional duties, but did this in other areas of their life — were environmentalists, participated in other groups, and decisions were being made to weed them out on that basis — that is clearly a First Amendment violation," Katz says.

So what about the employees faced with the question: Should they or shouldn't they fill out the questionnaire?

Zuckerman, the former Office of Special Counsel adviser, says employees at the agency don't have many easy options.

"One has to be very careful about this. In the U.S. government you don't want to engage in insubordination. If you are asked to do something that's reasonable and it's legitimate, you have to do it."

He adds that if there's evidence that certain employees get marginalized or have their responsibilities altered as a result of the information on the survey, then there may be grounds for action.

"At that point there would be a violation and those employees might be able to bring a claim."

Copyright 2020 NPR. To see more, visit https://www.npr.org.

Brakkton Booker is a National Desk reporter based in Washington, DC.
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