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Markkula Center for Applied Ethics

Blanket Government Nondisclosure Agreements Violate Duty of Transparency

Omarosa Manigault Newman

Omarosa Manigault Newman

Hana Callaghan

(AP Photo/Mary Altaffer)

Hana Callaghan directs the government ethics program at the Markkula Center for Applied Ethics at Santa Clara University.  The opinions expressed are her own.

Last week furor emanated from 1600 Pennsylvania Avenue over the tell-all book, Unhinged, written by former White House staffer Omarosa Manigault Newman. President Trump tweeted in anger that Manigault Newman had violated a nondisclosure agreement she had signed when she went to work for the Trump Administration.  In defense of the President, advisor Kellyanne Conway told ABC’s Jonathan Karl “It is typical, and you know it, to sign an NDA [nondisclosure agreement] … in any place of work…” and proceeded to say that many staffers in the White House had signed one. “I’d be shocked if you didn’t have one at ABC,” she said.

It may be typical in the corporate setting, however it is hardly typical in government. Conway’s confusion may lie in her misunderstanding of the role of a public employee. While White House staffers serve at the pleasure of the president, in actuality they work for us.   

In the United States, we the people are sovereign, and we delegate authority to those who would govern.  By virtue of this delegation, we place our public officials in a position of trust.  We trust them with the public treasury, to act on our behalf, and always in our best interest.  In essence the relationship between the public and public officials is fiduciary. We require them to act in a manner that is fair, unbiased, and loyal to the public by putting public interest before personal gain. 

Because fiduciaries are difficult to monitor, they take on the duty of accountability.  Transparency in government actions and record keeping assures accountability by allowing people to verify that those in government are fulfilling their ethical responsibilities. 

The value of transparency is enshrined in government at all levels. The preamble to California’s open meeting law, the Brown Act, nicely articulates this concept of delegated authority and public accountability:

The people of this State do not yield their sovereignty to the agencies which serve them. The people, in delegating authority, do not give their public servants the right to decide what is good for the people to know and what is not good for them to know. The people insist on remaining informed so that they may retain control over the instruments they have created.

The principle applies equally at the federal level. What the president and Conway have not grasped is that the president is not now in charge of a large corporation able to compel silence from his employees.  Rather the president is our employee and we have the absolute right to know what he is saying and doing when he is conducting the public’s business.  With limited exceptions involving such things as national security and employment matters, the president should operate in the light. He should behave in a manner that does not embarrass him when his words and deeds are retold to the public.  In other words, he should be an open book that he is not afraid others will read.

Aug 21, 2018

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