Updated at 5:15 p.m. Oct. 12 to include statements from the University of Alabama Board of Trustees
Is a sweeping new confidentiality agreement forced on employees of the University of Alabama System Office last week constitutional? One expert on such non-disclosure agreements says it absolutely is not.
“As a clear yes or no First Amendment issue, it’s a big ‘no.’ That is not a legally enforceable policy. There is no legal precedent for imposing a non-disclosure agreement of that scope on government employees,” said Frank D. LoMonte, professor and director of the Brechner Center for Freedom of Information at the University of Florida College of Journalism and Communications.
LoMonte, who is an attorney and also has worked as an investigative reporter, reached out to Lagniappe after reading about UA Chancellor Finis St. John’s office suddenly requiring employees to sign a confidentiality agreement so wide-ranging it would even prohibit them from talking to spouses about what happens at work. Sources familiar with the inner workings of the System Office, speaking on condition of anonymity, have said they believe the agreement was a direct reaction to information about System Office actions being “leaked” to Lagniappe and winding up in news stories.
Perhaps lending credence to that theory, just a few hours after the story broke in Lagniappe Sept. 24 about the System Office requiring employees to sign the confidentiality agreement, the System’s top lawyer sent out an email threatening employees with investigation and imploring them to help identify the leak.
At roughly 9 that Friday night, System General Counsel and Senior Vice Chancellor Sid Trant emailed staff in Sid McDonald Hall (SMH), which houses the System Office, warning them the administration would “thoroughly investigate” what he described as “a breach of confidentiality.”
“This is to advise you that we have been made aware of these (sic) inappropriate sharing of business information — a breach of confidentiality — by someone within SMH,” Trant wrote. “We will thoroughly investigate this matter. Please let me know if you have any information that might bear on this issue.”
Questions regarding who specifically would be under investigation and what the investigation would entail went unanswered by Trant and the System Office.
According to LoMonte, the System Office attempting to preemptively silence employees by forcing them to sign a wildly broad confidentiality agreement and threatening investigations is a violation of their free speech rights.
“You do not waive all your First Amendment free speech rights when you take a government job,” he said. “And the federal courts have consistently recognized, over and over again for 50 years, that there is a First Amendment right to talk to the press and public about information that you learn at work. Your employer can’t gag you from speaking or threaten you with reprisals just because you discuss information that you learned at work.”
LoMonte said it is legal for a public entity to tell employees not to share truly confidential information such as medical records, social security numbers and college transcripts, for example, but the agreement being pushed by the chancellor’s office would likely be found unconstitutional in court.
“… The definition of confidential information in this policy goes way beyond what any court has ever found to be legal. Policies just like this have been successfully challenged in federal courts across the country over and over again over the past half-century. And always successfully. The employer never successfully defends a policy of this breadth because it’s not necessary to protect genuinely confidential information. You can’t just declare that all information related to the workplace is confidential.”
There’s also the issue of whether illegal or unethical behavior can be protected from the public view by a confidentiality agreement. Lagniappe’s reporting, for instance, has included stories exposing the System Office paying political columnist Steve Flowers $96,000 a year, plus benefits and retirement, to essentially do nothing. The System Office was unable to produce any work product from Flowers for the last two years he was employed, and eventually admitted he didn’t keep regular office hours or even have an office. If a System Office employee were to have made a reporter aware of this kind of arrangement, LoMonte said that employee would be protected from retaliation as a whistleblower.
“As long as the disclosure doesn’t give away something that the agency is legally obligated to protect, then whistleblowers have a First Amendment right to share information with the press and public. As long as they’re not giving away something legally protected like a business’s trade secret information, then public employees do have a right to blow the whistle about what they learn on the job,” he explained.
LoMonte said the U.S. Supreme Court actually ruled not long ago on an Alabama case that has similarities to some of what’s happened in the UA System Office. In Lane v. Franks, Edward Lane was fired after giving testimony about a member of the State Legislature receiving pay from a program run by Central Alabama Community College, but not reporting to work. The legislator was convicted, but Lane’s boss later terminated him. While lower courts upheld the right of Lane’s boss to fire him, the U.S. Supreme Court unanimously reversed their rulings, saying Lane’s sworn testimony was protected speech as a citizen on a matter of public concern.
“The Supreme Court had a case out of Alabama very similar to this called Lane v. Franks. And in the Lane case, involving a higher ed whistleblower, the Supreme Court said that as long as you’re not acting in the scope of your employment, that your speech belongs to you and not your employer. I wouldn’t sit at my office computer in the middle of the workday and send out unauthorized emails to journalists. But as long as I’m doing it on my own time as a concerned citizen, and not on behalf of the agency, then that is constitutionally protected speech,” LoMonte said.
On Tuesday afternoon, Stancil Starnes, Pro tem of the UA Board of Trustees, sent a response to questions asked on October 6 concerning the System Office’s new requirement that employees sign a confidentiality agreement. Starnes said the Board was informed about the developments by St. John’s office and fully supports the agreement.
“… A leak of confidential information is a serious matter deserving prompt and substantial attention and may well implicate various laws. The UA System is charged with safeguarding all types of sensitive and confidential information, whether it be of students, employees, patients, and other confidential operational information. Individuals employed by the System who adhere to the System’s policies and applicable federal and state law should not have any concern,” Starnes wrote. “We disagree that anyone has been ‘threatened’ – we do expect confidential information to be treated as such and for employees to comply with the long-established terms of their employee handbook. We must expect as much, and we must expect that administrators will implement reasonable and meaningful disciplinary measures against employees who do not comply with their obligations to keep confidential matters confidential.”
For the record, no confidential sources have provided Lagniappe with information regarding students or patients, nor has the newspaper published any such information. Starnes did not explain what federal and state laws may have been broken, as inferred in his statement.
Starnes took issue with a question about whether the Board supports the System Office ignoring open records requests from Lagniappe.
“Of course we support the appropriate and reasonably timely release of properly requested public documents to Alabama citizens, including members of the press. We know of no occasion where the System has ignored a valid open records act request among the hundreds that it receives every year,” Starnes wrote. “We view that as a serious accusation and one which has not otherwise been asserted. But, should you be correct in that assertion, there are remedies available to you, that to date you have chosen not to assert. But again, strictly speaking, the answer to your question is ‘no.’”
It isn’t clear whether the Board of Trustees would be aware of records requests made to and questions asked of the System Office, but they both have routinely been ignored. Since August, for example, the System Office has not answered questions pertaining to the creation of a “special events” space in the former Bryce Superintendent’s House. The house was originally slated to be used for graduate studies by the College of Arts and Sciences according to university press releases and Board minutes, but is now “will be used as a special event and meeting space for the UA System,” according to Trant.
Trant did not answer questions about what types of special events would be held there or explain how and when the property was moved from academic usage to that of the System Office. Lagniappe has also requested blue prints and project information for the $4.3 million renovation that has not been provided.
“Most of the communications from you we have viewed as simply unsubstantiated allegations, and while we value the work of journalists, I believe that management has been appropriately responsive to those requests,” Starnes wrote.
Starnes also denied that certain employees have been barred from entering the System Office building, Sid McDonald Hall in recent weeks, as sources have told Lagniappe, although he did appear to admit access has been changed.
“Access to Sid McDonald Hall is based on need and job requirements. That seems like an obvious proposition followed by virtually all business entities. The University of Alabama System is no different. Circumstances with respect to the need for access change from time to time. Those decisions are made by management, and we support those decisions. While access is controlled, no one has been barred from Sid McDonald Hall,” he wrote.
Starnes wrote that the use of confidentiality agreements could itself be confidential “depending on the circumstances,” but insisted this new agreement does not represent a policy change and is “well within the institution’s legal rights.”
Starnes finished his statement offering the Board’s endorsement of St. John’s actions and the System Office’s overall responsiveness to questions.
“While we have the utmost confidence that every proper open records request from you or anyone else will be handled appropriately and consistent with the statute by the System Office, you should not expect the Board to respond further to your accusations for the reasons set forth herein. Again, we fully support our Administrators in the decisions they have made with regard to those inquiries,” Starnes wrote.
Circling the wagons
The System administration hasn’t stopped at forcing employees to sign the confidentiality agreement when it comes to trying to manage employees possibly speaking out of turn to journalists.
Last Wednesday morning, for example, Director of System Communications Lynn Lowe Cole sent a message to System Office employees offering advice on dealing with any media inquiries.
“I hope you are all well. I have received questions from several UA System Office employees regarding our media process. You should not feel obliged to respond to media inquiries, and you are always welcome to refer reporters to me via email: email@example.com. If a reporter calls you, you may transfer them to my direct line (8-5938),” Cole wrote. “Please let me know if you are contacted so I can stay aware of all media matters. Do not hesitate to give me a call with any questions.”
It should be noted that while Cole writes that employees “should not feel obliged to respond” to reporters, the new confidentiality agreement would likely make telling a reporter anything a fireable offense. The agreement greatly expands the scope of what would be considered confidential from the parameters set in the employee handbook.
“I understand that as part of my employment in the University of Alabama System Office (‘UAS’), I will have access to non-public information, observations, documents, messages, or data concerning or relating to the Board of Trustees of the University of Alabama (‘Board’) and its trustees, operating divisions, affiliates, activities, offices, officials, students, patients, donors, licensees, employees and contractors (‘confidential information’). Without limitation, ‘confidential information’ includes information or data concerning: operations; trade secrets; audit matters; compliance matters; ongoing, threatened or potential litigation; intercollegiate athletics; internal or external communications; financial plans, budgets, reports or operations; employee matters; contracts, grants and other agreements; negotiations; intellectual property (patents, trademarks, copyrights, etc.); research; academic matters; notes, plans and any other information that is generally not available to the public or to people outside UAS. Confidential information may exist in a variety of formats — hard copy, electronic, oral information, or other forms, and includes information obtained when I was not the intended recipient,” the new agreement reads.
Cole did not respond when asked if her email last week was in direct response to inquiries from any other media outlet. However, the attempts to lock down the information flow to reporters appear to have backfired, and Inside Higher Ed, an online education publication that boasts 3.6 million readers a month, followed up on Lagniappe’s story about the confidentiality agreement this past Friday.
Since Lagniappe first began investigating spending and personnel issues at the UA System Office in April, administrators appear to have worked to stifle the flow of information coming from within Sid McDonald Hall. For example, when Lagniappe began investigating Flowers’ circumstances, confidential sources said office employees were told by administrators to say Flowers was not in his office if a reporter called and asked for him. A receptionist did, in fact, say Flowers wasn’t in his office when a reporter asked for him, even though he did not have an office.
Since April, the System Office has refused to answer a multitude of questions and has also ignored several requests for documents made under the Alabama Open Records Act. For example, Lagniappe has waited unsuccessfully for several months now for the System Office to divulge how many finalists there were in the 2019 search that ended with St. John being named full-time chancellor. Multiple sources familiar with the search have said no other candidates were interviewed, but the System as well as members of the Board of Trustees have refused to answer questions about it.
Lagniappe has also requested information regarding expenditures related to System-operated buildings, but those also have been ignored.
In July, Trant threatened to begin charging Lagniappe for answering questions, although the System had generally disregarded answering anything of substance and few requests would have required research.
“In addition, as I stated in a previous Open Records response, we have attempted to provide responses to your numerous Open Records requests without charge, but we reserve the right to charge you for our time, research and preparation of responses to your frequent, time-consuming requests, but we will certainly provide you with a cost estimate before proceeding,” Trant wrote.
Trant, however, never provided the proffered cost estimate when it was requested by the reporter.
Current and former System employees have complained about severe morale issues within not only their office, but across all three University of Alabama campuses, as well as a culture of fear perpetuated by St. John and his top lieutenants. When St. John barred some System employees from Sid McDonald Hall last month, sources described the move as a “paranoid” attempt to stop further information leaks.
Rob Holbert is co-publisher of Lagniappe Weekly, email him at firstname.lastname@example.org. Confidentiality is guaranteed. Read the entire UA System Office series of stories.
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