Good government or ‘gag’ order? In Chesco, new ethics policy muzzles county workers.
Chester County officials don’t want government workers talking about their jobs — to anyone — after an Inquirer report revealed major problems with the county’s COVID-19 antibody testing program.
Chester County officials don’t want government workers talking about their jobs — to anyone.
Not to friends. Not to family. And not to the press.
Included in the county’s new ethics policy is a strict confidentiality clause for many county employees that would essentially turn almost everything learned on the job into the equivalent of classified information — a clampdown that labor-law experts say could infringe on First Amendment rights and whistleblower protections.
Employees are required to sign the policy by March 6. Those who violate it can face disciplinary action, including termination.
Chester County’s commissioners passed the ethics policy unanimously in December, two months after an Inquirer report — which relied partially on leaked information — revealed major problems with the county’s COVID-19 antibody testing program — contradicting county officials who had publicly insisted it ran smoothly.
The Inquirer report prompted the county to acknowledge for the first time that the tests — a no-bid, $13 million purchase from a politically connected biotech start-up — might have been producing inaccurate results. The county then notified thousands of people who had taken the tests of the questionable readings.
In January, Chester County filed a breach-of-contract lawsuit against Advaite, the Malvern-based test manufacturer, to try to recoup more than $11 million, claiming the company hadn’t delivered one million antibody tests. Advaite has said the suit is without merit.
Chester County spokesperson Rebecca Brain said in a statement Friday that the ethics policy was not developed in response to news coverage and is not designed to prevent leaks. She said it was initially planned in early 2020 but was delayed due to the pandemic.
“In order to meet high ethical standards, it is the County Commissioners’ opinion that only publicly available information should be shared outside of the office,” Brain said of the three-member board, controlled by Democrats for the first time as a result of the 2019 election.
The policy’s stated goal is promoting clean government, including by prohibiting employees from accepting most gifts, participating in political activities during work hours, and using county property for personal reasons.
“The intention of the newly adopted high ethical standards is not to be restrictive, but rather to help ensure more confidence in our team as a whole,” Brain said.
The confidentiality clause is unusual and highly problematic, experts say. It prohibits the dissemination of “[a]ll information, no matter how acquired during the course of employment with the county,” unless it has previously been made public.
“Dissemination includes information provided to family members, friends, and the press,” it states.
Nancy Lassen, a Philadelphia labor lawyer, said Chester County’s definition of confidential information is “almost grotesquely overbroad” and could potentially be illegal and unconstitutional.
“It’s nothing short of a gag provision,” Lassen said, describing it as the type of policy that might cover workers at secure government facilities or in the national security field.
Robert Caruso, executive director of the State Ethics Commission, said the confidentiality clause is much more restrictive than the state ethics act, which deals primarily with conflicts of interest and abusing public positions for personal gain.
“I’ve never seen one that includes a confidentiality provision that would require employees to not disclose anything they obtain while on the job,” Caruso said of ethics regulations passed by local government bodies in Pennsylvania.
The policy also goes beyond what is in place in Philadelphia and Pittsburgh, where employees are generally prohibited only from divulging government information for profit.
“Ours is limited to using information for financial gain,” said Shane Creamer, executive director of the Philadelphia Board of Ethics.
Melissa Melewsky, media law counsel for the Pennsylvania NewsMedia Association, said the confidentiality aspect of Chester County’s new ethics policy is “troubling and misguided” and should be scrapped.
“Seeking to impose a broad blanket of confidentiality where none is justified by law is bad public policy and raises significant constitutional concerns,” Melewsky said in an email. “The policy also ignores the fact that public employees are often in the best, and sometimes only, position to expose malfeasance or other questionable conduct that impacts the public they serve.”
Some Chester County employees are apprehensive about signing a policy with a strict confidentiality clause, and say it runs counter to the commissioners’ pledges of transparency.
“As a public sector entity that answers to taxpayers, the intent is all wrong,” said one employee, who asked not to be identified due to concerns of retaliation. “It’s not about good government and transparency, it’s about saving face.”
Montgomery County’s ethics policy, passed in 2012, includes a confidentiality clause similar to Chester County’s, although it was unclear Friday whether it has been enforced or had ever been challenged on constitutional or legal grounds. Delaware County has no such provision.
Brain, the Chester County spokesperson, noted that regardless of the new policy, county employees are still protected by the Pennsylvania Whistleblower Law, which protects workers from retaliation for exposing waste, fraud, and abuse. She said any employees with concerns about wrongdoing in the workplace can report them to the appropriate authority.