Despite a long discussion and a unanimous vote by the Broadcasting Board of Governors members that nothing in their highly controversial non-disclosure resolution should affect the rights and protections of whistleblowers, the BBG Office of General Counsel did not include this language in the text of the resolution posted on the BBG website.
The resolution itself is likely to have a chilling effect on
whistleblowing, open debate and employee morale at the agency since it specifically threatens BBG employees with punishment and disciplinary actions if they violate the non-disclosure policy.
The reference to protecting whistleblowers was introduced and voted upon at the insistence of BBG Governor Victor Ashe who also raised objections to other parts of the resolution and later issued a statement explaining his concerns that the resolution, for which he ultimately voted after getting other members to accept his amendments, is still deeply flawed.
One of the amendment that Ashe was adamant about was on the protection of whistleblowing. The BBG Deputy General Counsel Paul Kollmer-Dorsey was present during the discussion and acknowledged that the amendment on the protection of whistleblowers was being read and voted upon. But when the text of the resolution was posted on the BBG website, it did not include any reference to BBG governors’ desire to make it clear to BBG employees and the public that they do not intend to infringe in any way on the rights and protections of whistleblowers.
BBG Watch has produced a partial transcript of the discussion at the BBG board meeting in Prague, during which Ashe raised the issue of the importance of protecting open debate in a public institution like the Broadcasting Board of Governors.
BBG GOVERNOR VICTOR ASHE: “Mr Chairman, first of all, thank you for those comments. It was mentioned that one person served on the Hill for 27 years. I’ve served in elected public office for 31 years, six as a State Representative, nine as a State Senator, and sixteen years as the mayor of the city of Knoxville and I’ve lived under Tennessee’s Open Records Law all but two of those years because the law had not been passed until 1968. … I’m used to dealing with it and it’s just part of my DNA. That’s where it comes from. And I’ve not retreated nor do I plan to on this.
I’m somewhat intrigued that you say that of course the [BBG] Governance Committee can now meet and come back and correct any problems, but you never called the meeting to discuss this in the first place.”
ALTERNATIVE PRESIDING GOVERNOR DENNIS MULHAUPT: It was on the agenda for the last Governance Committee meeting, which was postponed. Any Governor can ask that something be removed from the committee and brought to the full Board where the Board acts as committee as a whole or it can be send back to the Governance Committee as well. It’s the Board’s choice.”
BBG GOVERNOR VICTOR ASHE: “You’ve given your answer and you’re sticking to it, and I understand that. But the record will reflect that, unlike most resolutions that come here, this did not go to the Governance [Committee], it wasn’t fully vetted, it wasn’t even remotely vetted. In fact, I beg to differ with you. I don’t think it was on the last agenda for May 24, at least I don’t recall seeing it. But if I’m wrong about that, that’s a minor point, and I stand back and withdraw it.
But in terms of this meeting, it was never on this Board’s agenda for today, in fact it didn’t even go out until … sent an email and enclosed the document last Thursday on May 31. No one saw it. Well, I didn’t see it, I’ll put it that way, others may have seen it since obviously others have been talking to each other about what they wanted to do.
But, secondly, I think the record should reflect that as opposed to soliciting and pointing out some the issues that exist, it was just turned over to the attorney. And frankly, I think there are a couple of issues here that have to be looked at.
The first hurdle in this item is the First Amendment. When you’re acting as a member of this Board you are also as a federal employee for the brief time you’re serving here. At least, we’re paid for that, and the courts have consistently recognized the rights of federal employees to speak openly on matters which may be a public concern. And I think this particular policy can circumvent and weaken that obligation.
Secondly, and it has been utterly not mentioned here today. But if in the course of deliberations — I hope that what I’m about to say would never occur, but it could — and it is not even mentioned — if there were the Whistleblower Act protections when discussing potential problems or matters of concern within the Agency or how the Agency should be run. These are protected activities.”[…]
But, I can assure you, there needs to be an exemption spelled out that this does not infringe, or even remotely infringe, on whistleblowers, and that’s not even mentioned. Well, you can say, that’s the law and, of course, we all understand, and that’s the case. But, it’s not here.
Also, there are really no standards in this proposed policy. I mean, I think the court would end up throwing it out because it’s too broad to give reasonable guidance as to what you’re supposed to do. One of the issues with laws regarding pornography, which I support by the way, is that they were so broad that the courts could not rule. Not until Potter Stuart came along and said, I can’t define it but I know when I see it, did that sort of amorphous standard develop. And I’m just saying here, if you look at it, surely not all information, what staff member says, is confidential and pre-decisional. It’s all automatically there. And no review, and no review by a single member of the Board. But then you say, the Board can by a resolution rescind that, but we know the Board meets every five or six weeks. By that time, it is forgotten whatever has occurred.
There is no statement in here who decides what is confidential. No one, that we’re saying here. And that is why the Governance Committee should have been meeting, all of these issues would hopefully be spelled out. And you’re going to be back here, hopefully at some point, either with this Board or a future Board, dealing with everything that’s here.
You’re talking about mismanagement or misconduct. Who determines what is mismanagement? Is it this Board going to meet as a review board and ponder whether a member of the Board violated this policy and then they’re going to what, pass a resolution saying that’s a no-no, send it to the U.S. attorney and ask him to investigate and prosecute. What is planned? And why are these terms not defined?
You know, the holes in this policy are big enough for a Mack truck to drive through.
And what if a member of Congress — and most of us have friends who are members of Congress whose friendship we value, a number of whom we know know about this Board and staff members — if they ask me what about the CEO proposal that Lynne Weil sent out at Dick Lobo’s suggestion, about the CEO that originally was going to include the entities [Grantee broadcasters], then not include the entities — I’m supposed to say, well, Senator, that’s pre-decisional and I can’t respond. Is that my answer? I don’t think so — not to someone I grew up with and we were fellow staff aides on Senator Howard Baker’s staff 42 years ago. I think you go far more than surely you intended. I would think any member of this Board … Are they prohibited from discussing with a senator or a senior staff aide on House Appropriations or Senate Appropriations? Am I prohibited from talking to a fellow attorney? Is the only attorney I can talk to the deputy legal counsel here with whom I may have an honest and professional disagreement or we just are not on the same wavelength?”
BBG GOVERNOR SUSAN MCCUE: “Just because it seems to me that the goal of this policy is to allow for Governors and staff to have pre-decisional conversations and not to have these conversations intentionally or not misrepresented to the press, not to have inaccurate information or partial information get out that’s misleading. That seems to be our goal here. To suppress any information, I’m not for that at all, Governor Ashe, I agree with you on those points. May be if we can focus on what the goal of this is.”
BBG GOVERNOR VICTOR ASHE: ” Governor McCue, no one respects you and likes you more than I do. We may differ, but it does not diminish the relationship that we have and my friendship for you. But this does far more than your stated statement, in my opinion. There are others who might disagree with me, but it goes far beyond that. Let me just quickly finish because everyone is anxious to go and do something else. But in terms of information, I think Justice Louis Brandeis explained it well. And this comes from The Economist, May 26-June 1 issue, where they discuss the President’s transparency. And the headline is “The Best Disinfectant.” And it gives the President good marks on supporting transparency but also feel that he has not gotten good marks on protecting whistleblowers. But this comes at the time when I would point out whistleblowers in the year 2010, 77 percent of the 3.1 billion dollars that America won in fraud related judgments and settlements came from suits brought by whistleblowers. They could be either in public or private sector.
I think whistleblowers, as unpleasant and uncomfortable as it may be for the people who have the whistle blown on them, is an important part of the American society and are protected by federal law. But nowhere in this do we reference that, and even salute and nod our hat in saying — yes, protecting the whistleblowers is something that we don’t mean even remotely to infringe upon. And this doesn’t even do that.
Let me complete by saying, “Sunlight” — this is Justice Louis Brandeis from Massachusetts, a Supreme Court Justice nearly a century ago — “is said to be the best of disinfectants.” That is, unless it’s national security, letting the sun shine in, I think is important. And you know, when we’re talking about how the piece of legislation on the CEO is drafted, I don’t consider it foreign policy. I consider that institutional policy as to what would be best, and there is no reason… And this Board is not a private board. This is not a Kiwanis Club. This is not a private board like the Brown Shoe Company. It is a public body, members appointed by the President, confirmed by the Senate and should be considered that way. I think, oftentimes, for example, the way — and I profoundly disagree with this and I think this is one reason this is a mistake — is that this Board has not had a serious debate, in my view — and there are members here who may disagree with me — on what the CEO position should be and whether or not we should go forward with it. An email was sent out, directed by Mr. Lobo, doing a straw poll on whether the majority of the Board wanted to proceed with it or not to proceed. There is no doubt in my mind that the majority supported proceeding, I was one who did not. I think that the straw poll, and this is my personal opinion, was in effect a notational vote under a different name, and it was camouflaged, cleverly, but also inappropriately. And while the Board could have met and arrived at the same decision, there would have been at least a discussion and a dialogue, just as we have now. And I’m under no illusion what the final vote is going to be, but we have spent about forty minutes now discussing what we think the pros and cons of this protocol are. Thank goodness we are doing that. And that’s important. But I think I have a higher responsibility to inform members of Congress of concerns that I might have when I disagree with the proposed policy. And I don’t feel I have to wait until this Board has decided now it’s free to talk about it, and it may be after the fact. I think the process of consideration of the House and Senate committees when we have staff that will go up there to represent the majority view of the Board that also all the documents be able to go with them. And I think that is not being done here and that represents a step back. I can assure you that when this motion is adopted I will follow my conscience in terms of what should be done. And I just want everyone to know, I don’t want anyone to be mislead as to my attitude on this, because it’s a matter of deep principle with me, that staff should not be able to just take a stamp out and put classified, confidential, pre-decisional, and no member of this Board…now if the Board voted to make something confidential, I have a different attitude toward that.”
BBG Watch has obtained a statement from the Broadcasting Board of Governors member Victor H. Ashe who opposed the non-disclosure resolution in its original form and fought successfully to change it. While Ashe, a former mayor of Knoxville and former U.S. Ambassador to Poland, eventually voted for the resolution, he is still expressing his strong reservations in the following statement:
STATEMENT BY BROADCASTING BOARD OF GOVERNORS MEMBER, HONORABLE VICTOR H. ASHE
“I appreciate my colleagues on BBG making two significant revisions to the non disclosure protocol which was hastily drafted and ill conceived. It shows that they listened and thru the dialogue which occurred they saw shortcomings in the draft. However, many unanswered questions remain on the wisdom of this as well as its implementation.
Are Board members precluded from talking to members of Congress or their own attorneys about drafting of possible legislation? Will First Amendment rights for all be protected? What are the legal consequences should some Board member not follow this new protocol? How will the BBG determine who has violated the protocol? Will there be a hearing on this and will that be in public? Who will determine what evidence is presented and what is acceptable? These are some of the issues.
What bothers me most is that this protocol was conceived in secrecy so that few would know what was in the document until the BBG Meeting actually opened some 4500 miles from American soil in Prague, Czech Republic. It was not even listed on the first printed agenda sent out and posted on the BBG web site. I only received the actual agenda showing this 14 hours before the meeting. The actual proposal changed with each new e mail sent out. The governance committee was bypassed and never held a meeting on it. A meeting by the governance committee could have heard many of the concerns and allowed them to be corrected. A more thoughtful proposal could have been presented. That process never occurred while some Board members were excluded from the process all together. Deputy legal general counsel Paul Kollmer simply failed to answer several of my e-mails seeking clarification and information. He said later he never received them.
This issue will keep coming back to us for further clarification as to what is covered and not covered. Transparency took a beating. I have stated clearly to my colleagues that I will be guided by my conscience on this. Often this is compared to a private corporation but BBG is a public agency and should be honored to operate fully in the open. BBG should not make efforts to carve out areas of secrecy.”
Victor H. Ashe
Ambassador Ashe holds the distinction of being the longest serving mayor of Knoxville. During his time in office, from 1988 to 2003, he was the President to the U.S. Conference of Mayors from 1994 to 1995 and received their Distinguished Service Award for Leadership in 2003.
Ashe served as the United States Ambassador to Poland from June 2004 to October 2009. In 2004, he was a Fellow at Harvard University’s JFK Institute of Politics.
From 1968 until 1974, Ashe served as a Tennessee State Representative. In 1975, he was elected as State Senator and held office until 1984. Ashe served in 1967 as a staff assistant to US Sen. Howard Baker. He was executive director of the Americans Outdoors Commission, 1985-1987 chaired by Sen. Lamar Alexander (then Governor).
Five U.S. Presidents, beginning with President Ronald Reagan, have named Ashe to different federal positions. He will be the first former Ambassador and local elected official to serve on the BBG.
Ashe currently sits on the Board of the National Trust for Historic Preservation and the American Rivers Association, and is a former member of the AmeriCorps Board of Directors.
Ambassador Ashe earned a B.A. in History from Yale University in 1967 and graduated from the College of Law at the University of Tennessee in 1974.
Ashe is a member of the Governance Committee and the Strategy and Budget Committee and serves as Corporate Board Vice Chair of Radio Free Asia.
Ashe was appointed to the board on July 2, 2010 to a term expiring on August 13, 2010. By law, any member whose term has expired may serve until a successor has been appointed and qualified.
He is married to the former Joan Plumlee and they have two children—J. Victor and Martha.
Ashe resides at 3709 Kingston Pike, Knoxville, TN 37919 and welcomes comments and views on BBG issues. He can be reached by phone at 865 523-6573 or email at email@example.com.
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