District Attorney Craig Stedman has sought to clamp down on leaks from his office amid weeks of high-profile clashes with the Lancaster County commissioners and personnel issues that have spilled out into the public, LNP has learned.
Stedman, the Republican Party’s endorsed candidate for Lancaster County judge, is requiring all district attorney’s office employees — prosecutors, detectives and support staff — sign a confidentiality agreement that prohibits them from speaking to the public and media, a move civil-liberties experts call unconstitutional.
LNP has obtained a copy of the agreement, which was circulated to staff in late February.
It requires office employees to acknowledge they “understand and agree that any public comment, speech or presentation, as well as any contact with any type of media source regarding information, investigations, cases, internal policies, personnel issues, and/or internal operations related to the District Attorney’s Office is strictly prohibited absent specific approval, and/or policy of the District Attorney.”
The move suggests Stedman, the only candidate for a county Court of Common Pleas seat, is becoming increasingly concerned about his reputation amid growing scrutiny over his handling of personnel matters, allegations he tried to engineer the Republican endorsement process and his use of at least $21,000 in drug forfeiture money to lease a 2016 Toyota Highlander.
But a spokesman for the district attorney’s office said requiring staff to sign a confidentiality agreement is nothing new.
“This agreement was drafted years ago by two senior staff members based on existing law-enforcement agreements, approved by external counsel, and distributed then to staff,” said the spokesman, Brett Hambright. He said there has “never been an issue of enforcement” and no staff member ever raised a question about the agreement.
Hambright declined to comment on whether all the office’s employees signed the new version of the confidentiality agreement, which Stedman distributed to employees in late February.
But he added: “The fact that someone from the office provided a media agency the agreement in and of itself proves the need for said policy.”
On a sunny summer afternoon in 2017, District Attorney Craig Stedman joined dozens of legisl…
Civil-liberties experts described the agreement as unconstitutional.
Vic Walczak, the legal director of the American Civil Liberties Union of Pennsylvania, said requiring staff to sign such an agreement violates both the First Amendment to the U.S. Constitution and the state’s Whistleblower Law.
“The bottom line is public employees have a right to speak publicly or complain to outside agencies about matters of public concern,” Walczak said.
The Whistleblower Law protects state and local government employees from retaliation resulting from good faith reports of waste, fraud, and abuse, according to the state’s Office of Inspector General. The law requires employers to post notices and “use other appropriate means to notify employees and keep them informed of protections and obligations.”
LNP provided a copy of the confidentiality agreement to the ACLU for review.
Walczak, a lawyer in Pittsburgh, said the language was “vague and overbroad” and “hugely unconstitutional.” He said his organization would challenge the requirement in federal court if the ACLU receives a complaint from an employee that Stedman enforced or threatened to enforce the agreement.
“Public employees are covered by the First Amendment,” Walczak said. “While government employees’ free speech rights are diminished to promote office operations and harmony, they are not completely eliminated.”
'Critical and standard in law enforcement'
The district attorney’s office spokesman said such agreements are “critical and standard in law enforcement.”
The executive director of the Pennsylvania District Attorneys' Association, Lindsay E. Vaughan, said confidentiality is important when investigating criminal matters but added she does not know how many offices across the state require staff to sign such agreements. She declined to comment on the use of confidentiality agreements that are broader than restricting employees’ speech on active investigations.
The confidentiality agreement appears to be unique in Lancaster County government. Chief Clerk Larry George said he does not know of any other county department or agency that requires its staff to sign a confidentiality agreement beyond an affirmation that the employee has read the county’s policy manual.
Christina Hausner, the county solicitor, said the commissioners were unaware of the district attorney’s confidentiality agreements until LNP requested comment on the subject. Hausner said she and the county’s human resources director, Charlette Stout, asked Stedman for a copy of the agreement but never received it.
“We are not aware of any other department with a similar requirement or specific policy other than what is stated in the County’s policy and procedure manual,” Hausner said.
The district attorney’s office has declined to provide the current or previous versions of the agreement to LNP. This news organization obtained a copy of the current agreement independently and has filed a request under the Right to Know Law seeking access to previous agreements.
Stedman’s secretary emailed all office employees a copy of the agreement on Feb. 26 and instructed them they would be required to print, sign and return the document. The district attorney’s office spokesman said the policy is identical to previous versions and the “only thing new is that there have been a number of new hires since it was first enacted.”
Walczak said the ACLU has sued government bodies for confidentiality agreements less restrictive than the district attorney’s agreement. Some of the ACLU’s clients, he said, were police officers.
The ACLU lawyer acknowledged that some provisions in the confidentiality agreement are appropriate, such as the prohibition on talking about investigations. However, provisions restricting employees from talking about policies, issues facing the office and “internal operations” are overly broad and cover material about which employees have constitutional rights to speak, he said.
Walczak said certain policies — decisions on who to prosecute and for what kinds of crimes — could be legitimate matters of public concern. “Those are matters of public concern that the Constitution authorizes the public employee to speak critically about,” he said.
Walczak said the agreement also contains “a prior restraint provision on speaking to the media.”
Rick Blum, policy director for the Reporters Committee for Freedom of the Press, said if government employees can’t speak to somebody outside the chain of command — such as a whistleblower organization, human resources or a member of congress — “that only helps the wrongdoing go unexposed.”
While Blum acknowledged that certain information should not be made public, such as confidential or investigative information, overly broad confidentiality agreements can stifle employees’ reporting.
“Nondisclosure agreements are problematic because oftentimes stories of wrongdoing come first from people who see it and know what’s going on,” Blum said.
“Government has to operate in the sunlight,” Walczak said. “Employees who can set the record simply can’t be muzzled. This is all about the interest of good government.”
Earlier this week, Stedman sued the county commissioners in Commonwealth Court, alleging they are improperly attempting to “encroach upon the independent powers” of his office.
Stedman has accused Commissioners Josh Parsons, Dennis Stuckey and Craig Lehman of overstepping their legal authority by trying to investigate his office’s use of drug forfeiture proceeds, including his car lease and claim of nearly $2,000 in mileage while driving the work vehicle.
Stedman also alleges the board has overstepped its bounds by reviewing and issuing recommendations on personnel matters in the district attorney’s office. The county’s human resources office, which operates under the direction of the commissioners, determined this week that Stedman violated county policy when he suspended veteran prosecutor Mark Fetterman for reasons “related to political campaign activities” earlier this year.
Fetterman’s former attorney, a member of the Republican Committee of Lancaster County, alleged in mid-February that Stedman threatened to publicize damaging information about Fetterman unless the attorney pressured Stedman’s political opponent to back out of the judicial race.
Michael D. Hess, an elected member of the Manheim Central Republican Committee and Lancaster bankruptcy lawyer, said Stedman tried to use a file the district attorney had compiled on Hess’ former client as leverage to clear his own path to a seat on the bench. Fetterman has retained a high-profile employment lawyer from Philadelphia.
Stedman has denied the allegations.