Free speech and ethics collide for federal employees

Two attorneys at the Environmental Protection Agency have found themselves in a bit of ethical trouble after posting a video to YouTube.

In the video posted in September, the two discuss their opinions on cap-and-trade and specifically mention that they are EPA attorneys.

A few days after an op-ed by the couple was published in the Washington Post, a directive to the couple was sent by the EPA, instructing them to remove the the video from YouTube and edit it to be "compliant with 5 CFR § 2635.807(b)" and that failure to do so "could lead to disciplinary action."

William Bransford, partner with Shaw, Bransford & Roth, tells FederalNewsRadio, "I think this could be one of those very close cases."

Bransford said this instance seems to split the hair that separates a line.

I think there's a difference between just telling somebody "well I work at EPA" which is really kind of a matter of public record, versus "I work at EPA and because of my position and what I do, I believe this is a good idea," and you're speaking for yourself personally and not necessarily as a member of the EPA.

The real question, said Bransford, is whether the two used their government position to push a personal issue or not. "Just mentioning that you work there," said Bransford, "I'm not sure that it rises to that level, but obviously somebody in their General Counsel's office thinks to the contrary."

And while that may be where this case is starting, it certainly won't finish there, according to Bransford. After the couple removed the YouTube video, it was re-posted by someone else.

"Did they violate an order to take it down?" Now that raises another question: if they had a Constitutional First Amendment right to make the statement, which of course they do, but make the statement and mention "Oh, by the way, I happen to work at EPA, which is a matter of public record but that has nothing to do with my opinion." Do they have the right to say that? That's another issue that's raised by all of this.