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by Jenny Coyle
About 1.6 million federal employees should be shaking hands with Jeffrey van Ee: His
recent court victory will protect their right to free speech.
Ten years ago, van Ee - a U.S. Environmental Protection Agency employee and long-time
activist in the Sierra Club's Toiyabe Chapter in Nevada - thought something was suspicious
about a U.S. Fish and Wildlife Service plan for the desert tortoise, an endangered
species.
Fish and Wildlife was going to accept $400,000 from rocket-fuel manufacturer Kerr-McGee
to monitor 11 tortoises that would be relocated from a vacant industrial site that
Kerr-McGee wanted to occupy. On his own time and without identifying himself as a Sierra
Club member (he was group conservation chair at the time), van Ee told Fish and Wildlife
officials that the money would be better spent protecting the habitat of the desert
tortoise. Studies had shown that relocated tortoises don't thrive.
The EPA slapped van Ee with a gag order and put a reprimand in his file, charging that
to criticize another agency while representing a nonprofit group was a felony and a
conflict of interest.
Van Ee pursued the administrative appeal process and five years later the EPA removed
the letter of reprimand from his file. But that wasn't enough for van Ee.
"I decided that I didn't want this to happen ever again to myself or to another
federal employee," he said. So he contacted the American Civil Liberties Union.
Appearing before a U.S. District Court judge, van Ee's attorneys compared the
government's position to an Edgar Bergen and Charlie McCarthy routine. "I could be at
a (Fish and Wildlife) meeting and whisper something in the ear of a Sierra Club
representative, and they could say exactly what I had said and it would be legal,"
van Ee explained. "If I said it on behalf of the Club, it would be a felony."
But the district court upheld the EPA's interpretation of the law, so van Ee appealed
the decision. On Feb. 8 the U.S. Court of Appeals in Washington, D.C., overturned the
lower court and ruled that Congress never intended for the law to be interpreted so
strictly. The court said that federal employees have the right to represent nonprofit
organizations before other federal agencies on issues not related to their job.
The government displayed a certain naivete during the process, van Ee said.
"The federal government argued every step of the way that it had to do this
because it needed to make sure that the public maintained faith in its government,"
he said. "If the EPA thinks suppressing the freedom of speech of one lowly worker
will enhance public confidence in govern- ment's competence, guess again. Public
confidence will be ensured when the public thinks all parts of the government are fairly
considering and debating all of its information and evidence."
"Jeff has been extremely courageous in sticking with this," said Lois
Snedden, a member of the Toiyabe Chapter and former Club board member. "I think this
takes a tremendous burden off other activists. It just makes you proud to work with
someone who is so dedicated."
Van Ee said an appeal of the February decision is possible, but not likely.
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