A Pennsylvania county is requiring government workers to sign a confidentiality clause that essentially precludes them from talking to anyone about their jobs after whistleblowers revealed major problems with a coronavirus testing program.
Chester County commissioners passed a new ethics policy – which must be signed by its workers by March 6 – in December, two months after the Pennsylvania Inquirer published a report based partially on leaked information.
The report described how COVID-19 antibody tests secured by the county in a $13million, no-bid contract from bio-tech start-up Advaite may have produced inaccurate results for thousands of people.
Now Chester officials appear to be trying to prevent another embarrassing scandal with the new confidentiality clause that will turn almost everything learned on the job into the equivalent of classified information, the Inquirer reported Monday.
It specifically says that such information cannot be shared with family, friends or the press.
Anyone who refuses to sign the ethics policy by the Saturday deadline could face disciplinary action, including termination.
Chester County in Pennsylvania is requiring government workers to sign a confidentiality clause that essentially precludes them from talking to anyone about their jobs after whistleblowers revealed major problems with a coronavirus antibody testing program. Pictured: A healthcare worker administers an antibody test in the county back in May
Labor-law experts say the confidentiality clause infringes on First Amendment rights and whistleblower protections – and appears to be in direct response to the Inquirer report.
But Chester County spokeswoman Rebecca Brain defended the policy in a statement on Friday, saying that it was not a reaction to news coverage and is not designed to prevent leaks.
Brain told the Inquirer that the policy was planned in early 2020 but was delayed because of 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,’ she said.
‘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 spokeswoman said county employees will still be protected under the Pennsylvania Whistleblower Law regardless of the new policy.
Commissioners on the Democrat-controlled three-person board have said the goal of the policy is to promote clean government, in part by prohibiting employees participating in political activities during work hours, using county property for personal reasons and accepting gifts in most cases.
But experts say the confidentiality clause represents a broad overreach by prohibiting workers from sharing ‘[a]ll information, no matter how acquired during the course of employment with the county’, unless it has previously been made public.
Philadelphia labor lawyer Nancy Lassen slammed the county’s definition of confidential information as ‘almost grotesquely overbroad’ and said it’s ‘nothing short of a gag provision’.
She told the Inquirer the policy resembles something one would expect to see in the national security field, but could potentially be illegal and unconstitutional in a county government setting.
Chester County Commissioners Marian Moskowitz, Josh Maxwell and Michelle Kichline (pictured left to right in October) passed the new ethics policy in December, two months after the Pennsylvania Inquirer published its report based partially on leaked information
The Pennsylvania NewsMedia Association (PNA) is advocating for the ‘troubling and misguided’ confidentiality clause to be scrapped altogether.
‘Seeking to impose a broad blanket of confidentiality where none is justified by law is bad public policy and raises significant constitutional concerns,’ Melissa Melewsky, media law counsel for the organization, told the Inquirer.
‘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.’
Even Robert Caruso, executive director of Pennsylvania’s State Ethics Commission, said the policy was unusually strict, far surpassing the state ethics act it was based on.
‘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 told the Inquirer.
He noted that the policy goes beyond rules in Pittsburgh and Philadelphia, where employees are prohibited from disseminating information for profit.
Some Chester County workers have said they are apprehensive about signing the policy because it contradicts the commissioners’ pledges of transparency.
‘As a public sector entity that answers to taxpayers, the intent is all wrong,’ one employee, who asked not to be named for fear of retaliation, told the Inquirer.
‘It’s not about good government and transparency, it’s about saving face.’
Chester County officials were forced to acknowledge failures in its COVID-19 antibody testing program last September after the Inquirer reported that the tests produced inaccurate results.
The county purchased the tests from Malvern-based biotech start-up Advaite last April and launched a program with a goal of forming a better understanding of virus spread in the area.
Because of the health crisis, the county was able to buy the politically-connected company’s tests in a no-bid contract.
The program was quietly shelved on June 2 after an implausible number of positive results came back from tests administered in late May, according to the Inquirer report last September.
After the Inquirer released its findings, based on internal emails and interviews, officials who had publicly touted the success of the program contacted thousands of residents to inform them tests conducted in May were ‘potentially inaccurate’.
The officials also admitted that the county should have informed residents of the issues earlier.
Chester County filed a breach-of-contract lawsuit against Advaite in January, claiming that it had failed to deliver one million tests.
Advaite has said that the suit – which seeks to recoup more than $11million – is meritless.
Advaite’s COVID-19 antibody test is shown above in a screenshot from a promotional video