EPA rule silencing critical employees struck down

06/16/95

WASHINGTON, D.C.–Environmental Protection Agency employees will be allowed to accept travel expense reimbursement from private groups for non-official speaking engagements after the U.S. Court of Appeals in Washington, D.C. (D.C. Cir.) overturned agency regulations in late May that thwarted efforts by two employees to speak out against EPA policies.

The 1991 EPA regulation permitted employees to receive travel and accommodation expenses only if they obtained prior EPA authorization to speak in an official capacity.

EPA employees William Sanjour and Hugh Kaufman have been giving speeches in an unofficial capacity since the 1970s, frequently criticizing policies of the EPA. Because the regulation prohibited them from accepting any compensation for travel expenses, Sanjour and Kaufman were forced to turn down a speaking engagement with NC WARN, a North Carolina environmental advocacy group.

The employees challenged the regulation in federal District Court in Washington, D.C. in October 1991, alleging that the “official speech requirement” violated the First Amendment. The district court held that the regulation was constitutional because it was “narrowly tailored to meet a legitimate government objective” and “not designed to limit First Amendment freedoms.”

The Court of Appeals balanced the interests of the government against those of employees and the potential audience “in receiving the speech suppressed.” The employee speech at issue, the court determined, relates to a matter of public concern, and a restriction on that speech would deprive the public of the employees’ expertise and experience.

The court rejected the government’s argument that the regulations would protect against an appearance of impropriety on the part of employees who accepted travel expense reimbursements. The court said that under the regulation, “official” speaking engagements would give rise to the same appearance of impropriety. The regulation also grants “essentially unbridled” discretion to the agency to approve or disapprove expression based on the employee’s viewpoint. (Sanjour v. Environmental Protection Agency; plaintiffs’ counsel: Stephen M. Kohn)

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