Some employees, including agency directors, privately balked at signing the document, saying it contradicts Gray’s promise of a transparent government and infringes on whistleblower protections. The action by Peck, who is conducting the review pro bono, has generated tension in an administration that has tried to stay focused despite the distraction of current investigations into hiring decisions made earlier this year.
Brian K. Flowers, the mayor’s general counsel, said that if he had known about the decision to distribute the agreements, he probably would not have recommended it. He said personnel regulations on confidentiality of information are already shared between departments.
“I don’t think the agreement does much more than that,” he said.
Flowers, who did not sign the agreement, quickly prepared an addendum that would clarify that the nondisclosure agreements do not supersede employees’ rights to report “waste, fraud, abuse and criminal activity.”
On Friday, Gray (D) said he first learned of the agreements a day earlier. He said he wanted more information before commenting but added, “I think you know our policy on transparency.”
Peck declined to answer questions and referred inquiries to mayoral spokeswoman Linda Wharton Boyd.
“The purpose of the non-disclosure statement is to support a process which promotes the creative exchange of ideas,” Wharton Boyd said in an e-mailed statement. “If the ideas are prematurely disclosed they may be misconstrued as ideas representing policy initiatives to be implemented by the government and therefore may mislead the public on the actual intent of the administration.”
Lynn C. Ross, a professor at Georgetown University Public Policy Institute, said that she understood a policy that might put an embargo on sharing what’s being discussed but the nondisclosure form is extreme. “You want to make sure everyone is feeling as candid as they can,” she said. “However, I have never heard of actually having employees sign a nondisclosure agreement.”
Ross said the incident appears to show that there are trust issues in the administration that need to be resolved. “You don’t need to force employees to sign nondisclosure forms” because professional ethics generally prevents leaks of discussions of policy that might not be adopted, she said.
Gray announced last month that the city would retain Peck, a top fundraiser during his mayoral campaign last year and a known philanthropist and technology expert. She has conducted similar government reviews in Pennsylvania and Delaware, drawing praise from former Pennsylvania governor Ed Rendell (D) and Delaware Gov. Jack Markell (D).
She is operating out of the city’s Judiciary Square building and has borrowed staff from several departments to conduct the review. In recent weeks, she has met with “clusters” of staff representing different agencies. The employees in attendance received the nondisclosure agreements to sign, according to city officials.
Flowers said he could recall only one instance in which the Gray administration has made a decision about confidentiality.
He said there was a question about whether the Department of Health could withhold the public disclosure of disciplinary actions against doctors under a confidentiality agreement. In a legal opinion he wrote in February, Flowers said the department could no longer designate disciplinary actions as “non-public.”
It was “in light of the Mayor’s new policy on Transparency and Open Government,” according to the opinion.